Nitrogen case background

In July 2023, Greenpeace Nederland (Greenpeace) initiated a class action case against the State of the Netherlands (the Dutch State) before the District Court of The Hague on the subject of nitrogen. Nitrogen gas is harmless, but nitrogen oxides and ammonia can be harmful. These compounds come from car traffic, industry, and agriculture. Nitrogen deposition harms soil, plants, animals, and human health by affecting air and water quality. Greenpeace claimed that the Dutch State did not make enough effort to lower the illegally high levels of nitrogen in the atmosphere.

Interest organization Stikstof Claim (SSC) sought to join the proceedings on the side of the Dutch State. SSC represented the interests of the agricultural sector, and it wanted to prevent nitrogen regulations that are detrimental to the agricultural sector from entering into force. The court allowed SSC to join the Dutch State’s side in its interim ruling of 27 December 2023 (please be referred to this ruling), recognising its interest in the potential implication of the ruling.

Greenpeace, that initiated a class action based on the Dutch act on collective damages in class actions (Dutch acronym WAMCA), promotes the interests of nature conservation and curbing the environmental pollution in the Netherlands in light of nitrogen emissions. In its interim ruling of 6 March 2024, the court qualified Greenpeace’s claims as promoting the public interest, with an idealistic purpose and no significant financial interest involved. Therefore, the court applied the lighter regime under the WAMCA and ruled that Greenpeace was admissible in its collective claims (please be referred to this ruling).

Broader context of the Nitrogen Case

For several years, nitrogen deposition has been a point of attention for many businesses in The Netherlands. As nitrogen deposition onto Natura 2000 nature conservation areas may have significant negative effects for the conservation of such areas, a permit obligation may apply for activities that cause nitrogen deposition (e.g., agricultural activities, industrial activities, building works). More specifically, the ruling in the Nitrogen Case comes on the back of a recent landmark ruling by the Dutch Council of State (the highest administrative court in these matters), overhauling the applicable nature permitting framework.

Court’s ruling of today in the Nitrogen case

Greenpeace claimed that the Dutch State acted unlawfully by failing to take sufficient measures to bring the nitrogen deposition on Dutch Natura 2000 sites below the critical deposition values. Therefore, Greenpeace sought a declaratory judgment that the Dutch State is acting unlawfully by, among other things:

  • failing to take sufficient measures to reduce nitrogen deposition in the Dutch Natura 2000 areas below the critical deposition values (CDV),
  • failing to ensure with certainty that the statutory nitrogen target of 40% of nitrogen-sensitive nature below the applicable CDVs will be met by 2025, and
  • failing to ensure with certainty that the nitrogen target for 2030, as advised by the Remkes Commission and included in the 2021 Coalition Agreement, of 74% below the applicable CDVs, or at least the statutory nitrogen target of 50% by 2030, will be met.

In light thereof, Greenpeace claimed that the court should order the Dutch State to bring certain percentages of the Natura 2000 areas, especially in the areas in the worst condition, below the applicable standards in 2025 and 2030, sanctioned by a penalty payment.

The Dutch State on the other hand argued that it is up to the legislator and not the court to determine what measures are needed with regard to limiting the nitrogen deposit. In doing so, the Dutch State pointed out that many measures have already been taken to reduce nitrogen deposition, and new measures are in the pipeline. In earlier (class actions) ESG litigation, we have also seen the Dutch State raising the questions whether the judiciary or branches of government should deal with policy on – for example, climate change and nitrogen deposition.

In its ruling of 22 January 2025, the District Court of The Hague ruled the Dutch State is under the obligation to prevent the deterioration of nature in Natura 2000 areas and to ensure that nature recovers and reaches a good state, based on the EU Habitats Directive, which has been transposed into Dutch law. The Dutch State has not taken sufficient measures to stop the (threatened) deterioration and to meet the statutory nitrogen targets. According to the court, the Dutch State acts unlawfully by failing to stop the deterioration of nitrogen-sensitive nature in Natura 2000 areas in a timely manner. The Dutch State also failed to meet the statutory nitrogen targets by the end of 2025 and, due to current inadequate measures, will also very probably fail to meet the targets of 2030 . The court therefore partially granted the claimed declaratory judgment. The court ordered the Dutch State to comply with the statutory nitrogen target for 2030, which means that the Dutch State must bring 50% of the area of nitrogen-sensitive nature below the applicable standards by 31 December 2030 at the latest. In doing so, the Dutch State must prioritize the most vulnerable nature. If the Dutch State fails to meet this target, it must pay a penalty of €10 million to Greenpeace.

The court ruled that the Dutch State must implement its ruling immediately. A potential appeal by the Dutch State to the Court of Appeal of The Hague will not suspend the court's ruling.

Greenpeace had requested the District Court to impose a penalty of EUR 100,000 per day for the duration of the illegality (without a cap). The Dutch State contested the necessity of such a penalty, arguing that it always complied with judicial rulings. Although it is uncommon for the Dutch State to be subjected to such penalties, the court found that the exceptional circumstances surrounding the nitrogen reduction targets warranted this measure. Consequently, the court decided to impose a one-time penalty of EUR 10 million if the nitrogen reduction target for 2030 was not met, instead of the unlimited daily penalty of EUR 100,000 requested by Greenpeace. In this case, the District Court apparently found it necessary to impose a fine on the Dutch state. This indicates a lack of confidence in the Dutch State's willingness to comply voluntarily with the judgment. In the previously mentioned Urgenda case (please be referred to our earlier blog), the request for a penalty was denied by the court, and opinions vary on whether or not the Dutch State actually complied with the judgment (by reducing its greenhouse gas emissions by 25% by 2020 compared to 1990). In a more recent class action initiated by the Municipality of Westerwolde against the Central Agency for the Reception of Asylum Seekers (COA), the court ordered the COA to reduce the number of people present at the reception center located in Ter Apel to a maximum of 2,000. In this judgment of 30 October 2024, the court prohibited the COA to exceed this amount of asylum seekers at the reception center Ter Apel and imposed a penalty of EUR 50,000 per day, up to a maximum of EUR 5 million, for non-compliance (please be referred to this ruling). Until now, the COA is not successful in its compliance to the ruling, and, as a consequence, penalties have become due.

Get in touch

The court’s ruling is significant and has far-reaching implications for government policy in many areas. Our firm is closely monitoring ESG litigation and legislation and potential liability and litigation risks in this respect. Feel free to contact one of our colleagues below for more information about the ESG litigation in the Netherlands. Furthermore, our team of specialists is set to provide a more in-depth reflection on the current Dutch framework regarding nitrogen deposition and permitting requirements in the coming weeks, in which they will discuss the practical implications thereof and potential mitigants in more detail.