The State launched its High Court defence of the current nitrates action plan and the nitrates derogation it allows for on Wednesday, as well as arguing as being sufficient the approach taken to assessing whether the plan was expected to impact the environment.

Senior counsel Margaret Grey represented the State, as it was heard for the first time which arguments would be put forward to counter the case brought by an Taisce against the nitrates action plan.

On Tuesday, an Taisce had claimed that the State failed to ensure compliance with EU regulations, including the nitrates directive, the water framework directive and the strategic environmental assessment directive.

The State denies breaching these directives and has disputed an Taisce’s assertion that the nitrates action plan is not a protective environmental measure in and of itself.

The NGO contended on Tuesday that insufficient analysis was completed on the expected impact of the current nitrates action plan on the environment and, in particular, sites designated as protected under the habitats directive.

State response

On Wednesday, Ms Grey argued, on behalf of the State, that the case being made by an Taisce does not concern any harm being caused to specific Natura 2000 sites by the nitrates action plan.

The State also claimed that an Taisce’s argument “pins its case” on a nitrates judgement handed down to the Dutch government, but which has a “number of very distinct features” between the challenge currently before the High Court and that was has handed down to the Netherlands.

The State submits that there are “insurmountable pleading problems” with the arguments put forward by an Taisce.

An Taisce’s case “fundamentally overlooks” the fact that the nitrates action plan is mandated by EU law when it comes to the group’s position on the plan’s possible impacts on Natura 2000 sites, according to Ms Grey.

Emphasised by Ms Grey was the State’s argument that the nitrates action plan is a protective measure in and of itself under the nitrates directive.

Commission approval

It was also raised by the State that the European Commission agreed that nitrates derogation was lawful when it approved a derogation for Ireland when approving the nitrates action plan.

Ms Grey stated that the Commission’s position was that Ireland’s plan met the necessary criteria under the water framework directive.

On an Taisce’s seeking of a judicial review of the compliance of the nitrates action plan with the water framework directive, Ms Grey argued that the State sees “no basis for the court to do that and no need for the court to do that”.

The case taken by an Taisce “amounts to an impermissible attack on the Commission decision” to grant a derogation and that the High Court is “not the right forum” to review the Commission’s decision, according to the State.

The State also contends that an Taisce’s argument “misunderstands” the relationship between the nitrates directive and both the water framework directive and the strategic environmental assessment.

The case is to resume on Thursday and the court has yet to hear from the notice parties, including the Irish Farmers’ Association and Irish Creamery Milk Suppliers’ Association (ICMSA).