Stringent water quality assessments at river catchment and sub-catchment levels – and possibly at individual farm level – will be required for Ireland to prove that the nitrates derogation is not having a negative environmental impact, the European Court of Justice (ECJ) has indicated.
In an opinion – or preliminary finding – issued on the case taken by An Taisce against the fifth nitrates action plan, advocate general Juliane Kokott of the ECJ cautioned that increased nitrogen applications cannot affect water quality.
However, the advocate general accepted in her opinion that there may be a justification for the derogation from a societal and economic standpoint and indicated that higher nitrogen application could be justified in instances where the necessary monitoring and reporting mechanisms were in place.
“Member states may approve the application to the land of an increased amount of nitrogen in agriculture only after it has assessed and determined…that the objectives of Article 4 of that directive [the water frameworks directive] are not thereby prejudiced,” the advocate general noted.
Article 4 of the water frameworks directive requires member states to protect the quality of water bodies and prohibits the introduction of measures and programmes that could result in a deterioration of water quality standards.
In addition, the opinion states that increased nitrates limits must be examined in relation to the “conservation of natural habitats and of wild fauna and flora, in order to determine whether any reasonable scientific doubt is ruled out that such application will adversely affect the integrity of Natura 2000 sites as a result of nitrogen deposition”.
Environmental assessment
The opinion states that any measures, such as the nitrates derogation, which allows the application of increased levels of nitrogen must be accompanies by greater environmental assessment, monitoring and reporting.
In respect of the “approval of the application of increased amounts of nitrogen by farms”, the opinion specifies that the environmental reporting must include “the effects on the amounts of nitrates in surface waters and Natura 2000 sites” of the increased application limits.
While focusing on the environmental impact of the nitrates derogation, the opinion accepts that there are also societal and economic considerations to be weighed in the final judgment.
“The societal impacts of agricultural activities, the impact of the plan or project on the agricultural industry and on the output and income of farmers, the sustainability of the agricultural industry in the member state concerned, the food supply chain and the employment of a significant portion of the population may be taken into account in the environmental assessment in order to justify the choice between different alternatives,” the opinion explains.
An opinion in an ECJ case is not a judgment or legally binding, but it is a strong indicator of the way a judgment is likely to go.
A final judgment is likely in May or June. The case then reverts to the High Court in Dublin.
Read more
An Taisce to seek judicial review of nitrates action programme
EU court to decide on Irish nitrates case next summer
Explainer: why Ireland's nitrates derogation is before Europe's highest court
Stringent water quality assessments at river catchment and sub-catchment levels – and possibly at individual farm level – will be required for Ireland to prove that the nitrates derogation is not having a negative environmental impact, the European Court of Justice (ECJ) has indicated.
In an opinion – or preliminary finding – issued on the case taken by An Taisce against the fifth nitrates action plan, advocate general Juliane Kokott of the ECJ cautioned that increased nitrogen applications cannot affect water quality.
However, the advocate general accepted in her opinion that there may be a justification for the derogation from a societal and economic standpoint and indicated that higher nitrogen application could be justified in instances where the necessary monitoring and reporting mechanisms were in place.
“Member states may approve the application to the land of an increased amount of nitrogen in agriculture only after it has assessed and determined…that the objectives of Article 4 of that directive [the water frameworks directive] are not thereby prejudiced,” the advocate general noted.
Article 4 of the water frameworks directive requires member states to protect the quality of water bodies and prohibits the introduction of measures and programmes that could result in a deterioration of water quality standards.
In addition, the opinion states that increased nitrates limits must be examined in relation to the “conservation of natural habitats and of wild fauna and flora, in order to determine whether any reasonable scientific doubt is ruled out that such application will adversely affect the integrity of Natura 2000 sites as a result of nitrogen deposition”.
Environmental assessment
The opinion states that any measures, such as the nitrates derogation, which allows the application of increased levels of nitrogen must be accompanies by greater environmental assessment, monitoring and reporting.
In respect of the “approval of the application of increased amounts of nitrogen by farms”, the opinion specifies that the environmental reporting must include “the effects on the amounts of nitrates in surface waters and Natura 2000 sites” of the increased application limits.
While focusing on the environmental impact of the nitrates derogation, the opinion accepts that there are also societal and economic considerations to be weighed in the final judgment.
“The societal impacts of agricultural activities, the impact of the plan or project on the agricultural industry and on the output and income of farmers, the sustainability of the agricultural industry in the member state concerned, the food supply chain and the employment of a significant portion of the population may be taken into account in the environmental assessment in order to justify the choice between different alternatives,” the opinion explains.
An opinion in an ECJ case is not a judgment or legally binding, but it is a strong indicator of the way a judgment is likely to go.
A final judgment is likely in May or June. The case then reverts to the High Court in Dublin.
Read more
An Taisce to seek judicial review of nitrates action programme
EU court to decide on Irish nitrates case next summer
Explainer: why Ireland's nitrates derogation is before Europe's highest court
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