The PAN Decree

Nitrogen wasn’t chosen as the word of the year in 2023, but it was certainly a contender. The nitrogen issue has been omnipresent in the news throughout the past year. Things escalated, particularly after the Ineos ruling by the Council for Permit Disputes. In response, a draft decree on the Programmatic Approach to Nitrogen (PAN) was submitted to the Flemish Parliament. But the legislative section of the Council of State was highly critical of the proposal. In the final weeks of 2023, a new version of the proposal was submitted to the Flemish Parliament. What does this proposal for the PAN decree have in store?

The goal of the PAN is to systematically reduce nitrogen deposition in the Special Protection Areas (SPA) and to prevent progressive deterioration of the quality of nature and the natural environment of SPA through restoration management.

The PAN is structured around five pillars:

• Emission and deposition reduction through source-oriented measures
• Assessment frameworks for the impact of NOx and NH3 during permit proceedings
• Nature restoration
• Monitoring and safeguarding
• Ancillary policies

The PAN is based on the reasoning that the downward trend in nitrogen load, resulting from the implementation of source-oriented measures, serves as compensation for the cumulative effects of activities exempt from a proper assessment for nitrogen emissions, as long as these activities remain below a certain threshold. It’s essential that, in applying these thresholds in the current situation, sufficient measures are taken to achieve the conservation objectives of the SPA, at least to reduce critical deposition values (CDV) (ie the amount of nitrogen deposition that an SPA can tolerate without significant negative impact), as provided in the PAN.

With the PAN decree, the legislator hopes to avoid a permit stop and reduce administrative burdens for many projects. For projects with an impact score lower than a certain threshold, no proper assessment needs to be conducted. The impact score is the percentage ratio of the total nitrogen deposition of a project to the CDV of the SPA within a radius of 20 km from a project. For industrial and other projects, this threshold is set at 1%. For agricultural projects, the threshold is 0.025%.

If the impact score exceeds these thresholds, a proper assessment for the project must be prepared. This assessment must then demonstrate that the project does not jeopardize the downward nitrogen deposition trend near the project. This downward trend has already begun with the implementation of the Air Policy Plan 2030, the effects of which will be further explored by implementing the source-oriented measures.

These source-oriented measures include (voluntarily) stopping activities with a highly burdensome nitrogen deposition or applying innovative and best available techniques. Recognizing that these measures will also have a significant social toll, especially in the agricultural sector, the legislator provides complementary measures, including financial assistance.

The Flemish Parliament is now back in action. The Parliament referred the dossier back to the Council of State so the Council can reconsider the matter. It’s expected that the political year 2024 will kick off with a new PAN decree.