The Clean Air Agreement and industry: Dutch government aims to tighten emission requirements

In this blog post, we will delve into this matter. More specifically, we present an overview of the industrial measures included in the Clean Air Agreement and its implementation agenda, and the current state of affairs with regard to the practical implications of these measures.

The Clean Air Agreement

The Clean Air Agreement (in Dutch: Schone Lucht Akkoord, “SLA”) was signed on 13 March 2020 by the national government and a large number of provinces and municipalities. In the SLA, the participating parties have laid down measures to permanently improve air quality in the Netherlands, and thereby advance overall health. Article 16 of the SLA stipulates that these measures are not legally binding, and that parties cannot be held accountable for not abiding by these measures.

The SLA is one of multiple instruments to achieve this goal and is closely connected to the National Air Quality Cooperation programme (“NSL”). This programme too is a product of agreements between several local governments, yet the NSL’s main objective is to comply with European air quality standards. The competence to establish the NSL can be found in paragraph 5.2.3 of the Environmental Protection Act (in Dutch: Wet milieubeheer, “Wm’’). Pursuant to article 5.16 Wm, the NSL can be part of assessing plans and projects. In short, the NSL makes sure that the effects on air quality of plans and projects are mitigated by implementing agreed measures to improve overall air quality. Accordingly, the NSL was established in part to enable spatial development. The SLA differs fundamentally from this approach as it aims to further reduce emissions at the source in order to improve overall health, without enabling new spatial developments.

Furthermore, the SLA is closely connected to Dutch efforts to combat the current nitrogen crisis. These efforts, while mainly aimed at restoring and improving the natural environment, also contribute to improve overall health. In turn, the SLA, aimed at improving overall health, also contributes to reaching environmental goals as it incorporates certain nitrogen reduction measures. The SLA is connected to the National Climate Agreement as well. The effects of this Agreement will be included in the calculation of the effects of the SLA.

The SLA is in effect until 2030, and is aimed at working towards the WHO-recommended limits for nitrogen dioxide and fine particulate matter. It also aims to reach health gains of at least 50% from domestic sources relative to 2016. These are ambitious goals. For example, the WHO-recommended limits – which were deemed to be not legally binding in a recent case delivered by the Council of State – regarding fine particulate matter are twice as strict as the current limit values prescribed by European law. Logically, this raises the question as to how these targets are to be achieved. The participating parties have agreed to take action with regard to the following areas:

• Mobility
• Mobile machinery
• Industry
• Homes – wood burning
• Inland shipping and ports
• Agriculture
• International clean air policy

If we look closely at industry, the goal is ‘to further disconnect emissions from growth and to realize a sustainable decline in emissions to air’. To achieve this, ten measures will be taken.

The measure which will subject permits to the strictest emission requirements is particularly striking. According to the SLA, this can be achieved through including in permits emission limit values corresponding as much as possible with the emission limit values at the bottom line of the range in the BAT-conclusions (these are European bandwidths concerning emissions which follow from the application of the best available techniques). Furthermore, the national government commits itself through the SLA to conduct research aimed at tightening emission requirements in general rules. Next to this, part of the SLA is the pilot Industry, which includes that competent authorities will issue permits with strict emission limit values and will effectively enforce these limits. These are measures with a potentially high impact on the operations of the Dutch industry.

SLA implementation agenda

On 26 March 2021, the Minister of Infrastructure and Water Management (I&W) sent the SLA implementation agenda to the House of Representatives. This agenda has been adopted for the period 2021-2023, and contains in essence a more detailed elaboration and specification of the SLA measures. Regarding the implementation agenda, ‘topic groups’ (in Dutch: themagroepen) are relevant. These topic groups elaborate the SLA measures and establish pilots. The coordinators of the Industry topic group are the national government and the province of North Holland.

In the implementation agenda, the ten measures stemming from the SLA that pertain to industry are subdivided into three tracks. The agenda further details these tracks. We have outlined the concrete proposals per track below:

Track 1: Issuing of permits and enforcement

• On the instructions of the Ministry of I&W, a legal analysis will be conducted on the opportunities and problem areas regarding the measure to subject permits to the strictest emission requirements. In the meantime, this analysis has been conducted by the consultancy firm KokxDeVoogd and was published on 1 April 2021;
• To enshrine the issuing of permits with strict emission limit values in policy rules, model text will be drafted for the Memorandum on issuing permits, monitoring, and enforcement (In Dutch: Nota vergunningverlening, toezicht en handhaving);
• To stimulate voluntary emission reductions (that go beyond the legally required reductions);
• To provide BAT-knowledge. The Industry topic group explores to which extent a further exchange of knowledge is necessary;
• The Industry topic group examines to what extent more accurate enforcement will lead to further emission reductions;
• Together with the authorities competent to issue permits, Rijkswaterstaat will draw up supplementary memoranda (in Dutch: oplegnotities) which describe how to implement the BAT-conclusions in the Netherlands. These memoranda will serve as a tool to issue permits with emission limit values that are as strict as possible. On 26 October 2020, the first memorandum, ‘Oplegnotitie BREF LCP’, was published by Rijkswaterstaat.
• The Ministry of I&W will update the factsheets regarding reduction techniques when needed. These factsheets contain information pertaining to the technical functioning and an indication of the costs of reduction techniques.

Track 2: Keeping general rules up to date

• The Ministry of I&W has had feasibility studies carried out on tightening emission requirements for biomass boilers, on updating the emission limit values in the Living Environment (Activities) Decree (in Dutch: Besluit activiteiten leefomgeving, “Bal’’), and on updating the methods for cost-effectiveness. By now, the legislative process to amend the Bal has started; on 29 March 2021, the internet consultation regarding the drafted changes was closed.

Track 3: International commitment

• The central government will play an active role in reviewing the European Industrial Emissions Directive (IED) and will further commit itself to ambitious emission limit values and narrower ranges in BAT-conclusions and underlying BREF-documents.

Closing remarks

The SLA and its implementation agenda ambitiously aim to tighten emission requirements for industry. The supplementary memorandum BREF LCP and the intention to tighten the emission limit values for biomass plants are concrete practical examples of this ambition. The question arises whether all objectives can be achieved. In this regard, we point out the case law of the Council of State stipulating that emissions within the range of a BAT-conclusion are in accordance with the eligible BAT (ABRvS 21 March 2012, ECLI:NL:RVS:2012:BV9479). Furthermore, we point out that in principle, competent authorities cannot derogate from the general rules in the Activities (Environmental Management) Decree (In Dutch: Activiteitenbesluit milieubeheer) on large combustion plants implementing BAT-conclusions when drafting the permit provisions. Another question that arises is whether the interests of the industry and the (European) level playing field will be taken into account sufficiently in the implementation of the SLA.

Having to meet strict emission requirements could lead to a (negative) impact on Dutch business operations compared to (European) competitors to whom these strict requirements may not apply. Whereas the NSL contains general measures, the SLA seems to place the burden for the desired emission reductions from the government on individual establishments, without a positive flipside, such as additional space for development for these establishments.

Click here for the dutch translation.