In 2022 An Taisce launched proceedings to judicially review the Government’s fifth Nitrates Action Programme (NAP). The case is being heard in front of Mr Justice Richard Humphreys from the 12^th – 15^th December 2023 in the High Court. An Taisce is represented by FP Logue Solicitors, and Counsel are James Devlin SC and John Kenny BL. The IFA and ICMSA are both Notice Parties to the challenge.

Overarching Reason for this Challenge

This challenge, while dealing specifically with the relevant legal provisions involved, must be seen also as in a much broader environmental and societal context.

The overall aim in bringing these legal proceedings is to ensure that two of the essential ingredients for flourishing rural life and agriculture - i.e. clean water and uncontaminated soil - are preserved for future generations.

We cannot ignore the evidence of harm to our water courses by intensive farming activity which ultimately has an impact on every citizen, and on Ireland’s standing as an environmentally aware and responsible society. It’s easy to focus on the behaviour of individual farmers but that would be wrong. This increased environmental impact of agriculture in recent years comes from a flawed system of policy and governance driven by a misguided vision. It’s time for the Irish Government to do better, and that can only be achieved by working with the evidence and guidance of science, and not against it to dismantle the enablers of that system.

Radical change is now necessary in the management of nutrient inputs to agricultural land to comply with EU Directives on water quality (the Nitrates and Water Framework Directives), both of which the Irish Government are legally bound to implement. To date, instead of seeking better compliance with the Nitrates Directive, which is designed to protect water from agricultural pollution, Ireland is instead continuing to seek derogations from the maximum nitrogen limits allowed, in order to facilitate greater nitrogen loading onto certain areas of land.

The Nitrates Action Programme underpins the legal and regulatory basis for agricultural activities that are actively contributing to water pollution. The environmental assessment submitted as part of the preparation for the NAP said that there was uncertainty whether the measures in the NAP would prevent adverse impacts on water quality. It is on this basis that An Taisce determined, in accordance with its mandate, that the assumption of approval for the NAP must be challenged.

The Nitrates Directive and the current state of Water quality

The Nitrates Directive – first introduced in 1991 – is the primary piece of European legislation protecting our rivers and lakes from the impacts of agricultural pollution. It requires each Member State to devise and implement a country specific Nitrates Action Programme every four years setting out a wide range of measures to protect water quality from agricultural impact.

Measures include things such as setting a limit on the amount of livestock manure which can be applied to land; and stipulating how and when fertiliser and slurry should be applied. It is the Nitrates Action Programme, and associated environmental assessments which An Taisce is judicially reviewing.

The case is informed by

• the undisputed evidence of the continuing deterioration of water quality in Ireland over the past decade, and
• the acknowledgment that the prescribed measures under earlier Nitrates Action Programmes have failed to sufficiently protect water quality from agricultural activity[1].

There is clear evidence that agriculture is the key significant pressure on water quality, impacting over 1,000 water bodies. What’s more, the number of waterbodies affected by agriculture has increased by nearly 30%, since the last full EPA assessment in 2018. This clearly shows that successive government programmes have not done enough to reduce excess nitrogen in vulnerable rivers, lakes and estuaries.

The pollution from agriculture comes predominantly from the leaching of excess nutrients (nitrogen and phosphorus) into watercourses from point sources such as farmyards, or from diffuse sources such as spreading of artificial fertilisers and slurry[3], or from direct deposition by the animals themselves.

Excess nitrogen is a particular problem in the South and South-East of the country, on free draining soils.  EPA data shows that 43% of river sites nationally have unsatisfactory nitrate concentrations, and in the predominantly rural catchments, more than 85% of the sources of nitrogen in the catchment are from agriculture, from chemical and organic fertilisers.

Legal rationale for the challenge

Ireland is required under the Nitrates Directive to establish a Nitrates Action Programme (NAP) as a means of delivering the aims of the Directive The responsibility for doing so falls to the Department of Housing. The objective of the Nitrates Directive is to reduce water pollution caused or induced by nitrates from agricultural sources and to prevent further such pollution. Over consistent cycles of NAP's, which allowed for the granting of derogations, there is no evidence that the objective of the Nitrates Directive is being achieved.

An Taisce engaged extensively with the Department throughout the drafting of the NAP, making 3 detailed submissions over the course of a year. These included a range of recommendations to address the weaknesses in the plan, backed up with data to support those recommendations.

We also warned the Department of the legal risks of proceeding with an overly weak plan. Instead of increased ambition, successive drafts of the plan got weaker, on foot of industry lobbying.

The concept of ‘certainty’ is central to the legal weakness of the NAP.

Habitats Directive

Under the European Habitats Directive, a decision maker (in this case the Department) must be certain ‘beyond reasonable scientific doubt’ that a plan or project will have no adverse impact on highly protected European habitats before it can be approved. Yet, the independent environmental assessment of the Nitrates Action Programme conducted during its preparation, acknowledged an uncertainty as to whether the main measures relied upon would adequately prevent water pollution, which could potentially impact on protected European sites.

For example, one of the fundamental tenets of the Nitrates Action Programme is that without a derogation, the largest amount of organic nitrogen which is applied to land cannot exceed 170 kilograms of nitrogen per hectare. However, in the assessment of this measure, the independent consultants concluded “Concerns remain as to the scientific basis of the proposed limit of 170 kg N/ha/yr. This is not supported by an evidence base and as such has potential to give rise to adverse effects on water quality.”

Derogation and farm level assessments

The European Commission granted Ireland a 4-year nitrates derogation in March of 2022, which allows licenced farms in Ireland to apply higher levels of manure to the land than would otherwise be allowed. While the European Commission decision cannot be challenged in the national courts, the European decision does rely on a valid Nitrates Action Programme (NAP). A confirmation of the inadequacy of the NAP by the courts may then require a referral to the EU Court of Justice on whether the nitrates derogation is still valid if the NAP is found to be unlawful.

The lack of the required certainty in the NAP is compounded by the absence of any farm level assessment for intensive cattle farming in Ireland. Despite the availability of Irish research showing that tailored farm specific measures are necessary to protect water quality, repeated NAPs rely on a one-size-fits-all approach. While pig and poultry farms over a certain size need to seek an EPA industrial emissions licence, there is no such requirement for intensive cattle farms. As such, there is no mechanism for an environmental assessment for intensive or derogation farms, despite the environmental risk they pose. Although not forming part of this case, An Taisce has repeatedly argued for farm specific assessments to determine if intensive and derogation-enabled farms will affect water quality in any given location. A plan cannot claim to prevent deterioration of water quality if it isn’t assessing the specific risk factors most likely to cause that deterioration. In the absence of farm-level assessments, it is vital that the overarching Plan regulating the application of nutrients to the soil, be robust in its environmental assessments having regard to the science.

Farmers' concerns

We recognise that farmers are very concerned about recent changes in nitrates, and that this challenge may exacerbate that. However, this challenge is not targeting farmers who we believe are the victims of a systemic failure of foresight, policy and leadership at Government level in charting a credible way forward for agriculture while protecting water quality.

Farmers, particularly dairy farmers, have largely followed the market signals and government advice to expand and intensify. This intensification has happened without adequate legally mandated safeguards, those which have been in place to date have failed to protect water quality.

Consequently, farmers are being asked to follow a range of rules, often at their own expense, that are not fit for purpose, and which do not contribute to achieving the desired outcome. This fails the farming community as well as the environment.