The Quest for the Holy Grail and the Dutch Integrated Approach to Nitrogen: How to Align Adaptive Management Strategies with the EU Nature Directives?

Abstract

The concept of adaptive management is generally defined as a flexible decision-making process that can be adjusted in the face of uncertainties as outcomes of management actions and other events become better understood. These experimental management strategies, which may grant permit agencies more discretion to authorise economic developments, have become increasingly popular as tools to overcome deadlock scenarios in the context of the EU Nature Directives. One notable application is the Dutch Programmatic Approach to Nitrogen (Programma Aanpak Stikstof – PAS ), which puts forward a more reconciliatory and integrated approach towards permitting additional nitrogen emissions in the vicinity of Natura 2000 sites. The purpose of this paper is to use the Dutch PAS as a benchmark to explore the margins available within the EU Nature Directives to implement more flexible adaptive management strategies. This paper argues that the Dutch PAS, especially taking into account the immediate trade-off that is provided between future restoration actions and ongoing harmful effects, appears to stand at odds with the substantive underpinning of the EU Nature Directives. As a result, its concrete application might be stalled through legal actions which advocate for a more restrictive approach to the authorization of additional impacts on vulnerable EU protected nature. It therefore remains highly doubtful whether the Dutch PAS is to be presented as a textbook example of a genuine sustainable management strategy within the context of EU environmental law.