The Council of State has told agriculture minister Femke Wiersma to rethink her plans to help farmers who have been operating without a licence since the last government’s nature permit regime was outlawed.

Wiersma had proposed giving a further three-year amnesty to so-called “PAS-melders”, businesses who were caught out when the administrative court threw out the previous system for regulating nitrogen compound emissions in 2019.

Around 2,500 businesses, the majority of them livestock farmers, were told they did not need a nature permit if they wanted to extend their operations, as long as they monitored and reported how much extra nitrogen pollution they caused in the surrounding area.

But the Council of State ruled in 2019 ruled that this reporting system, known as Programma Aanpak Stikstof (PAS) was illegal and the businesses would have to apply for nature permits.

European law requires all countries to keep nitrogen compound emissions in conservation areas within strict limits. Farmers and other businesses such as construction firms must demonstrate that their activities will not lead to these limits being breached when they apply for a nature permit.

The previous agriculture minister, Christianne van der Wal, ordered provincial governments to draw up regional plans to reduce nitrogen pollution, which included the farmers operating under the defunct PAS rules.

Buyout scheme scrapped

Last autumn Wiersma, who was appointed by the farmers’ party BBB, ordered the provinces to stop the programme, which included plans to buy out the heaviest polluters. She proposed replacing it with a smaller voluntary buyout scheme.

Van der Wal’s plans included an amnesty period for farmers without nature permits, as long as they obtained a licence by March 1 this year, but so far just eight businesses have managed to meet the criteria.

Many farmers say they are unable to cut their nitrogen compound emissions without significant financial support to modernise their facilities or cut the size of their herds.

Wiersma’s plans included a three-year extension of the amnesty period. But the Council of State said it needed to be combined with targeted measures to reduce nitrogen pollution levels.

The court said in its assessment of the draft legislation that it was “not convinced that this aim can realistically be achieved with this proposal”. It advised Wiersma not to submit the law to parliament in its current form.

Legal limbo

It is another setback for the minister after scientists last month criticised another of her policies to raise the maximum permitted level of nitrogen pollution from building projects so that the government’s infrastructure plans could go ahead. They said easing the restrictions on construction would not solve the pollution crisis, but simply shift the problem elsewhere.

Farmers fear that if the permit issue is not resolved, they will face legal challenges from environmental groups such as Mobilisation for the Environment (MOB) because they are effectively operating outside the law.

Provincial governments are required to take action against unlicensed operators, but have been reluctant to do so because the situation was not caused by the farmers.

Another Council of State ruling, backed up by the district court in Gelderland, said provinces were justified in not enforcing the law until July 1 this year while the government tries to fix the problem.

Court cases loom

MOB has submitted more than 100 demands to provincial authorities asking them to enforce the rules and is involved in around 20 active cases. But spokesman Johan Vollenbroek said the group was not planning to take every case to court.

“It’s not about disrupting as many farmers as possible,” he told Trouw. “We want something to be done about this problem. We will pursue the cases against the biggest companies in court.”

A spokesman for Wiersma said she would study the Council of State’s advice closely and revise the law as far as possible. “The minister will take heed of the contents of the advice when the bill is submitted to parliament,” he said.