The High Court has heard that without the current Nitrates Action Programme (NAP) or the Good Agricultural Practice for Protection of Water (GAP) in Ireland there would be “more harm to the environment”.
The charity, An Taisce, is seeking a judicial review of the government’s fifth Nitrates Action Programme (NAP).
An Taisce has launched legal proceedings to judicially review the government’s fifth NAP because it claims that “measures taken under successive NAPs have failed in their objective” which is to “prevent pollution of surface waters and ground water from agricultural sources”.
The judicial review proceedings are against the Department of Housing, Heritage, and Local Government, the Environmental Assessment Unit, the State and the Attorney General.
The Department of Agriculture, Food and the Marine (DAFM), the Irish Farmers’ Association (IFA) and Irish Creamery Milk Suppliers’ Association (ICMSA) are notice parties to the challenge.
The State is contesting the case and it is also opposed by the IFA and ICMSA.
The High Court was told by Tom Flynn, senior counsel – who is representing the IFA – that without the NAP or GAP there would be a “legal vacuum” and a “lower level of protection” against pollution caused by nitrates.
“This would understandably run counter to the objectives of the Nitrates Directive,” Flynn told Justice Richard Humphreys who is presiding over An Taisce’s case.
Nitrates
In its legal submission to the High Court An Taisce stated that it was challenging the “lawfulness of the fifth NAP because of its concern “about the ongoing and serious effects from nitrate pollution in Irish waterways”.
In seeking to have the NAP quashed An Taisce, which is represented by James Devlin, senior counsel, stated:
“The NAP includes no adequate provision for monitoring of the significant environmental effects of its implementation and therefore contains no or no adequate provision for the identification at an early stage of unforeseen adverse effects or when appropriate remedial action might be required”.
It has also raised questions about Ireland’s derogation status in documents before the court.
“As the NAP was instrumental to the grant by the European Commission of a derogation from certain requirements of the Nitrates Directive, An Taisce seeks a reference to the Court of Justice of the (CJEU) to determine the validity of that derogation,” the organisation, which is a registered charity stated.
State
However, according to the State’s “statement opposition” before the court to An Taisce’s application for a judicial review of the fifth Nitrates Action Programme (NAP) quashing “the NAP and/or the GAP Regulations would result in a legal vacuum that is incompatible with Ireland’s obligations to adopt measures to transpose the Nitrates Directive”.
In documents before the court the State outlined that “this would lead to a lower level of protection of water against pollution caused by nitrates from agricultural sources, which would run specifically counter to the fundamental objective of the Nitrates Directive”.
“The environmental damage caused by quashing the NAP and the GAP Regulations would therefore be more harmful to the environment than maintaining their effects pending any remedial measures coming into effect,” the State, represented by Margaret Gray, senior counsel, maintained.
IFA
The IFA – represented by Tom Flynn, senior counsel and Niall Handy, senior counsel, submitted to the High Court that An Taisce’s application to quash the NAP and the GAP should be refused.
In its statement of opposition to An Taisce’s legal challenge the IFA outlined that if the fifth NAP were quashed or the validity of the fifth NAP or the GAP was “called into question” this would create a “regulatory lacuna”.
“This would result in the unregulated application of nitrates, which would be anomalous situation in circumstances where the farming community has had continuous regulation of nitrates derogation since circa 2007.
“In such circumstances, the continued protection and regulation of water bodies pending any court-directed review of the fifth NAP, would outweigh the risk of environmental harm that would arise in an otherwise unregulated environment,” the IFA outlined.
The farming organisation also warned that if the fifth NAP was quashed it would have “adverse social and economic consequences” for the IFA’s members many of which include the 6,000 farmers who farm under the derogation which it said “may be endangered” if An Tasice’s legal challenge were successful.
Flynn highlighted to the High Court that an affidavit filed by Tadhg Buckley, director of policy and chief economist of the IFA, detailed that derogation “is essential to the economic viability of the Irish dairy sector”.
It was also outlined that if the derogation were to be removed this could likely result “in a very significant spike in land prices and/or a reduction in stock levels”.
Buckley has estimated that the direct income reduction for derogation dairy farmers could be as much as €134 million per annum.
ICMSA
In its statement of opposition to the High Court the ICMSA, who is represented by Eoin McCullough, senior counsel, outlined that An Taisce’s case in relation to the NAP “fails to appreciate the delicate equilibrium which has been struck in regulating multiple, complex – and frequently competing – economic, environmental, and social interests”.
It also stated that the legal proceedings “are aimed at attacking measures which are designed to be protective”.
The ICMSA outlined to the High Court that” the detrimental impact on dairy farmers if Ireland were not in receipt of a derogation, or if that derogation were legally imperiled, would be significant”.
According to the farming organisation An Tasice’s case also “fails to appreciate how burdensome the fifth NAP already is for dairy farmers”.
“It ignores the general regulatory challenges imposed upon farmers by NAPs and in particular by the fifth NAP, the onerous rules on inspection laid down, as well as the severe penalties which farmers face if they fail to comply with the fifth NAP’s stringent requirements,” the ICMSA stated.
The organisation also told the High Court that “the effects upon farmers, and the experience of farmers, cannot simply be dismissed as irrelevant to the issues arising on this application for judicial review.”