Courts

An Taisce challenges State nitrates plan over concern for waterways

The High Court heard the Irish Farmers’ Association and a number of farmers have indicated they may seek to participate in the case

An Taisce said it has taken court action to protect waterways. The River Dodder in Dublin. File photograph: Eric Luke Dodder River Dodder river weir Salmon weir Milltown Weir

Aodhan O'Faolain
Wed Jul 20 2022 - 14:15

An Taisce has taken a High Court challenge aimed at overturning the State programme that regulates the level of nitrates that can be used as fertiliser in agricultural practise.

The action arises out of the State’s approval of a plan known as the Fifth Nitrates Action Programme (NAP), whose implementation An Taisce claims will have a damaging effect on Irish waterways, and environmentally protected sites, due to excess nitrate pollution from agricultural sources.

The adoption of the NAP, An Taisce also claims, will prevent Ireland from complying with its obligations under the EU directive concerning water quality.

An Taisce says nitrates are regulated at EU level by the Nitrates Directive, which imposes mandatory limits of 170kg of livestock manure nitrogen per hectare per year on the level of nitrates that can be applied.

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However, the directive allows higher levels permitted subject to a derogation allowing farming up to a maximum of 250kg livestock manure nitrogen per hectare per year.

Ireland, An Taisce claims, was granted such a derogation, as it has been on previous occasions, by the EU Commission earlier this year.

Following that decision, the Minister for Housing adopted and published details of the latest NAP, which An Taisce claims is unlawful.

An Taisce has taken the action to protect Ireland’s waterways from what it claims is the serious environmental threat from increasing levels of nitrate pollution.

In addition to seeking orders quashing the NAP, An Taisce wants to set aside a decision by the EU Commission allowing Ireland to derogate from the requirements of an EU directive concerning the protection of waters from pollution caused by nitrates from agricultural sources.

It claims the NAP is invalid and breaches several EU directives concerning the protection of the environment and the protection of waters against pollution.

It claims the NAP’s authorisation was based on an assessment that did not ensure that there would be no adverse effects on the integrity of sensitive, environmentally-protected sites.

The assessment also failed to ensure that the NAP would not cause a deterioration or jeopardise the quality of bodies of water.

An Taisce also claims that the derogation sought by the State granted by the EU Commission based on information supplied to it by Ireland, should also be set aside.

An Taisce’s judicial review proceedings are against the Minister for Housing, Heritage, and Local Government, The Environmental Assessment Unit, Ireland and the Attorney General. The Minister for Agriculture is a notice party to the challenge.

In its action, An Taisce seeks orders quashing the Minster for Housing’s decision to approve and publish the NAP.

It also wants the court to make declarations, including that by adopting the NAP the respondents have breached EU directives and regulations on habitats, water frameworks and strategic environmental assessments (SEAs).

An Taisce also wants the court to refer the case to the Courts of Justice of the European Union to determine the validity of the decision to grant Ireland a derogation from the standard EU limits.

The matter came before Mr Justice Charles Meenan on Wednesday.

James Devlin SC, for An Taisce, said the papers were served on the respondents about a month ago, so they have had some time to consider them.

An Taisce would not be seeking a stay on implementation of the plan.

It believes that if it is correct in its claims “there is a question of a significant breach by the State of its fundamental obligations under EU law”. It was An Taisce’s contention that this breach should not continue due to any delay by the State setting out its position.

Counsel also said his side received a letter from the Irish Farmers’ Association and a number of farmers who are seeking to join the proceedings.

The judge said he would deal with the application for leave when the respondents are in court in November.

* This story was corrected on July 20th, 2022 to correct a factual error.

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