The highest administrative court in the Netherlands today gave the green light for the first Dutch Carbon Capture and Storage (CCS) project in the Port of Rotterdam, jointly carried out by Gasunie, EBN and the Port of Rotterdam. The Porthos project is one of the government's key energy transition projects and vital in achieving Dutch climate objectives. The project has been recognised as a Project of Common Interest by the European Commission.

In November 2022, the Council of State annulled the generic partial construction exemption (partiële bouwvrijstelling) that had been in force since July 2021. The annulment led to the Council of State reviewing the ecological assessment submitted by Porthos and government ministers in administrative proceedings relating to the Porthos project.

Earlier rulings of the court had already demonstrated that an ecological assessment is decisive in giving the go-ahead to projects. In today's ruling, the Council of State for the first time explicitly and unequivocally decided that a screening (voortoets) can take place where the critical deposition value (kritische depositiewaarde, KDW) is exceeded. If, based on objective data, the screening excludes the possibility of significant impact on Natura 2000 sites occurring, no nature permit is required.

The Council of State concluded that the ecological assessment of 15 March 2022, commissioned by Porthos, qualifies as a screening and allowed government ministers to conclude that the possibility of significant effects emerging from nitrogen deposition in Natura 2000 areas caused by the Porthos project, could be ruled out based on objective data. This means that the project does not require a nature permit and can now go ahead. Porthos is currently preparing the final investment decision and the aim is to start construction in early 2024.

For other projects, including energy projects and major infrastructure projects, this ruling offers a clear way forward in navigating the nitrogen crisis. If an ecological expert in a screening concludes that, based on objective data, significant impact on Natura 2000 sites can be ruled out, no nature permit is required. This provides a robust route forward, including in discussions with public authorities.

De Brauw have assisted Porthos and its partners since early 2019 - with an integrated team of renewable energy and infrastructure experts covering a broad range of relevant areas of law, including corporate structuring and contracting, regulatory matters, taxation, permitting, competition, procurement and project finance. De Brauw's team in the proceedings before the Council of State consisted of Jasper van Uden and Youri Pluis.

For more information, see: https://www.porthosco2.nl/en/.