The High Court has referred two questions about environmental assessment to the Court of Justice of the European Union (CJEU) in a judicial review challenging Ireland’s Fifth Nitrates Action Programme and an EU decision allowing a higher manure limit for eligible farms.
Mr Justice Humphreys made the reference on 6 December 2024. He stayed the substantive determination of the proceedings pending the CJEU’s ruling, while leaving open the possibility of procedural or interlocutory decisions in the meantime. The High Court has not decided the underlying challenge.
The first question asks whether EU rules on strategic environmental assessment prevent “material assets” from outweighing other environmental factors, or require selection of the option with the least adverse environmental effects. The second asks whether reasonable alternatives must be identified, described and evaluated in a comparable way to the proposed programme.
The applicant, An Taisce – The National Trust for Ireland, argued that alternatives require comparable assessment and that economic considerations should not determine the environmental assessment. The State respondents argued that the directive sets procedural requirements but does not require the least environmentally harmful option to be chosen or alternatives to receive the same level of assessment as the preferred option. The Irish Farmers’ Association and Irish Creamery Milk Suppliers Association agreed with the State’s submissions.
The judge set out proposed answers for the CJEU: “No” to the first question and “Yes” to the second. These are proposed answers in the reference, not a final ruling by the CJEU or a determination of the judicial review. The judgment records that the alternatives were not assessed in comparable detail and that economic implications for material assets were treated as outweighing options that might have been more environmentally friendly. Whether those matters breached EU law remains unresolved.
The challenged Fifth Nitrates Action Programme covers 2022 to 2025. The judgment says the European Commission’s 2022 decision granted Ireland a derogation from the standard limit of 170kg of nitrogen per hectare, allowing up to 250kg under specified conditions. The proceedings were initiated in May 2022, and leave for judicial review was granted in December that year.
The reference is separate from an earlier module of the case already referred to the CJEU. The High Court also asked the CJEU to note that natural-person notice parties had requested that their names not be anonymised in the EU proceedings.