The starting point – the role of An Taisce in society 

An Taisce is a charity founded in 1948 that works to promote environmental awareness and action in the context of the climate and biodiversity emergencies.

Over the past few years, the organisation’s original mission has been widened from ‘the protection of built and natural heritage to a more encompassing vision including a focus on ecosystem resilience and biodiversity enhancement as essential to sustain human community and wellbeing.

That work is organised under three headings – education, heritage and advocacy. Our work on advocacy focuses on sustainable planning and development and other environmental issues on local, national and European levels. We are the only independent environmental non-governmental organisation in Ireland with prescribed status as a statutory consultee on planning and environmental matters under Irish planning legislation.

An Taisce is a charity registered with the Charity Regulator. We are obliged to remain independent of all State, political or commercial influences. Our work is informed and guided by scientific intelligence including that supplied by expert European institutions and the competent state agencies here in Ireland. Much of the work of An Taisce is undertaken by volunteers including its Board and Council who are representative of member associations throughout the country. The organisation is funded from multiple sources. This includes restricted funding from different State sources for specific initiatives in education and heritage. The administration of An Taisce and its advocacy work is funded from membership, philanthropic and commercial income. The costs of making observations, submissions and any appeals in relation to planning are exclusively resourced from advocacy and general funds. The breakdown of these funds is set out clearly alongside the organisation’s Annual Report which is published on our website.

The Kilkenny cheese plant – sequence of events

In November 2019, Kilkenny County Council granted planning permission for the development of a cheese factory at Belview Industrial Park beside the village of Slieverue near the mouth of the River Suir where it meets Waterford Harbour.

Ireland has made explicit commitments to conform to EU Directives and to the climate targets of the Paris Accord. A factory of the scale proposed which will require a supply of an estimated 450 million litres of milk annually – over 5% of all milk produced in Ireland – would have a material negative impact on the capacity of the dairy sector in Ireland to meet those commitments.

Accordingly, in December 2019 and following a submission to Kilkenny County Council on the original application, An Taisce lodged an appeal to An Bord Pleanála against the granting of that permission on environmental impact assessment grounds.

In June 2020, An Bord Pleanála confirmed the grant of permission subject to some added conditions, in effect dismissing the concerns raised by An Taisce.

In November 2020, An Taisce was granted leave by the High Court to seek a judicial review of the planning process.  In April this year (2021) the High Court dismissed that challenge.

An Taisce has now decided to seek leave to appeal the judgment on a number of points of law that we believe set a precedent in respect of environmental assessment in planning matters which cannot be allowed to go unchallenged. The crucial issue is clarifying the correct level of assessment of environmental impacts required under EU law.

Ireland and its dairy industry

The agriculture and food sectors have always been regarded as ‘natural’ to Ireland and in the early decades of independence would have been the main source of economic activity in the State.

A significant element of that position remains today even though the country’s economic capacity has evolved in many ways since the 1950s. The agriculture and food sector retains a very strong voice and is held closely by the political establishment as being of critical importance. This status is reflected also in the priorities that Ireland has maintained in its relationship with the European Union and in the priority afforded to maximising the potential of the EU’s Common Agricultural Policy.

Notwithstanding its importance by scale, prominence, and indeed popularity as a symbol of a ‘green Ireland’, the food production sector is also now facing a set of structural challenges beyond anything it has ever met previously. Chief among these is the realisation that as it has expanded and mechanised, modern day farming and food production has scaled up its use of and reliance on fossil fuels and chemical-enabled actions that are progressively destroying the fabric of the natural world and the wellbeing of all that live in it.

In its 2020 ‘State of the Environment’ report published in December last, the Environmental Protection Agency (EPA) notes “Damage to the environment from agriculture activity undermines the credibility of Ireland’s clean, green image on which the Government’s Food Wise 2025 vision is constructed” (page 327).

All of the data available tells us that agriculture has a continuous negative impact on the scale of greenhouse gas (GHG) emissions, on soil and water quality, on biodiversity loss, and in ammonia air pollution.

The growth in dairy processing since the lifting of milk quotas in 2015 with the resulting levels of nitrate fertiliser and fodder input required makes current bovine stocking levels unsustainable.

In 2017 the European Parliament’s Committee on Agriculture and Rural Development reported that Ireland’s agricultural output per tonne of greenhouse gas emissions was the worst in the EU. The EPA has more recently reported that agriculture was responsible for 35.3% of greenhouse gases in 2019 in which year the national dairy herd increased by 2.8%, the 9th consecutive year of increase. It noted that the agriculture sector is responsible for over 99% of national ammonia emissions.

Biodiversity in rural lands is likewise under pressure from land use changes and intensive farming. In May 2020, the EU Court of Auditors reported on the ineffectiveness of successive agri-environmental schemes, in Ireland and across the EU, to reverse biodiversity loss caused by intensive farming.

Agriculture is also the biggest polluter of water in Ireland. 50% of our water bodies are polluted, and water quality is rapidly declining, particularly in dairy rich areas where the intensification of activity is a noted contributor to Ireland being in breach of the Habitats Directive.  The EU Commission is actively tracking Ireland for failures in compliance with the Water Framework Directive.

The state agricultural research agency, Teagasc, projected in 2020 that emissions associated with agriculture would decrease by 2030. However, this was based on stable herd numbers, and Teagasc has also projected increases in the dairy herd.

While we would all want Ireland to have an accurate reputation as a food producer with a low environmental footprint, these numbers show that that is not currently the case. Talking down or wishing away the evidence and those that are advocating for action on foot of that evidence will not make ‘the problem’ go away.

Royal A-Ware and Glanbia

The proposed development is a joint venture between Glanbia and the Dutch dairy processor Royal A-ware. The milk from the plant will come from Glanbia suppliers for whom it was being presented as an opportunity to expand production.

The Belview development has been presented as a move to create alternate markets (in Holland for Gouda cheese) that will offset potential losses from the opportunity to supply into the UK.

Of less prominence is commentary on the significant reduction in bovine sector output in the Netherlands and a cull in the dairy herdthere on foot of climate and water pollution mitigation obligations introduced to avoid breaching phosphate limits under the EU Nitrates Directive.

Ireland, by comparison, continues to have a regime of direct and indirect subsidy in support of milk production, processing and export.

It has to be a concern that Dutch food processors are looking to countries with laxer regulations and more politically powerful agriculture industry lobby groups (as Ireland undoubtedly has) to facilitate the very intensification of dairy production in Ireland that is being blocked in the Netherlands.

The An Taisce case against the proposed factory

By any measure, the impact of this plant is significant in the context of national dairy production output. As noted above, dairy production and the supporting chain of industrial activity and animal husbandry, is a substantial contributor to Ireland already breaching key European metrics for emissions and environmental controls. We thus have a fundamental concern for how this plant will add to Ireland’s carbon and pollution footprint.

The 450 million litres of milk needed to supply the plant represents 5.6% of the estimated national annual milk pool of 8,000 million litres.

The production of that milk on its own will lead to a 2.5% increase in ammonia emissions – at a time when Ireland is already in breach of its commitments to limit ammonia emissions and has a legal obligation to meet lower limits in the future [1]. There is no room for increases.

We have also raised concerns about the effects on water quality and protected habitats in the South East, which are already degraded due to run off of fertiliser and slurry into rivers and lakes in the region.

In that context it would be irresponsible and a dereliction of duty to ignore the impact of the increased production required for this development and the inevitable added negative impact for the environmental performance of the Irish dairy industry.

The basis for appealing the High Court decision

An Taisce’s mission statement requires it to engage with the planning system to promote ecosystem resilience and biodiversity enhancement as essential to sustain human community and wellbeing in Ireland.

In its 2019 appeal to An Bord Pleanála An Taisce expressed its concerns on:

1.   The need to assess impacts of the proposed milk supply on water quality, biodiversity loss, greenhouse gas emissions and air pollution;

2.   Legal and policy considerations including:

a.    Precedents for assessing environmental impacts in supply chains critical to the functioning of a proposed development;

b.   The legal requirements of the Habitats Directive.

The appeal was cited against national legislation, EU directives and relevant prior case law that highlighted fundamental grounds on which to overturn the permission. An Bord Pleanála, however, granted permission. An Taisce did not consider this to be in line with EU Directives or established case law and so took a Judicial Review with the High Court, which ultimately upheld An Bord Pleanála’s decision.

As with any legal judgement, the recent decision of the High Court establishes a precedent on which future decisions may rely.

Having considered the judgment in detail we believe there are a number of points of exceptional importance arising. If unchallenged, these would alter the fundamental legal obligations for environmental assessment in planning matters.

These changes would relate to any other industrial developments where there is a connected supply of produce, the production of which in itself impacts the environment – as is the case here where there is an inextricable relationship between the proposed plant and the supply of milk, without which it cannot survive.

Crucially, the ruling cast doubt on what the correct standard is under European law for the assessment of indirect environmental impacts, such as those caused by the production of the milk needed for the proposed cheese plant. An Taisce’s appeal of the High Court’s judgement is seeking clarity on that question.

The judgement also asserts that a permission or permit that is compatible with government agri-food policy cannot be challenged on indirect environmental effects. The consequences of that position, if it were to enter into jurisprudence unchallenged, would be far-reaching.

Letting this judgement stand would create unsound and contradictory case law when assessed against previous judgments on related issues. It would be irresponsible and directly contrary to the mission of An Taisce to do so. Policy decisions can and will change with governments and even within government, but they must always be subject to the test of the law and not vice versa.

An Taisce concerns for rural Ireland

Since An Taisce first raised its concerns about Belview in late 2019 its actions have been the subject of a steady flow of public comment.

Very little of that comment has addressed the substantive issue – the sustainability of an industry that everybody acknowledges as being of great importance and value to Ireland and Irish life.  The arguments have been based solely on the need to maintain jobs and increase growth often without reference to the climate impacts or environmental consequences.

The request for a judicial review and the subsequent request for an appeal is not a case taken against farmers – it was a case taken for the environment and for the future viability of Irish farming which is currently endangered by planning decisions that are not compliant with our environmental legal obligations.

Contrary to the thrust of some recent public commentary, An Taisce cares deeply about the viability of Irish rural life. We want Ireland’s agriculture and food sector to be strong and assured long into the future, as the anchor for a vibrant rural economy and society based around family farms that are sustainable and profitable in the medium term.

In our understanding and judgement of what is possible however, the continued expansion of intensive dairying of the type that is embodied in the proposal for this factory presents an existential threat to that possibility.  In that scenario there will be some (short-term) winners – mainly industrial scale producers and food processors – and many losers in both the short and the longer term.

Decision makers and commercial interests in the agriculture and food production sectors must recognise the urgent need to bring Ireland into compliance with its binding national and European legal obligations and frame policy and investment for the future in that context.

We recognise that we are holding a position that differs from strong and vocal lobby groups who see themselves as having a primary obligation to shareholder and contractual partners. Science supports our position, and we believe that it would lead also to better long-term outcomes for all other partners also.

An Taisce’s position on further development

Managing food production and sustainable land use into the future is one of the primary challenges facing Ireland’s policy makers and farming communities. The ambition in the Climate Bill currently in the Oireachtas to achieve a 51% reduction in emissions by 2030 will require far-reaching and radical changes in all sectors, including agriculture. Attempts to defend agriculture from doing its fair share will effectively undermine the collective national effort.  Fragmentary tweaks applied at the margins will not add up to the substantial transformative changes in land use and food production that are essential.

Yet these changes must be equitable and support the viability and vibrancy of Irish rural life. We must work with change models like Just Transition [2] where all of the partners in society work in unison to plan and deliver a package of complementary interventions to secure livelihoods while shifting rapidly to sustainable methods of food production.

At present the Government has put its thinking on the future of the food industry for the next decade – AgriFood 2030 – out for public consultation.  As part of the Environmental Pillar, An Taisce withdrew from the industry-led Strategy Group after its concerns that the new strategy essentially continued the business-as-usual approach were not adequately addressed.

We have, however, continued to contribute to the public debate and set out a vision for the future of agriculture in Ireland through a joint report, “Towards a New Agricultural and Food Policy for Ireland”. Released in April 2021, the report was written by three civil society coalitions, the Environmental Pillar, Stop Climate Chaos and the Sustainable Water Action Network. It represents over 70 diverse groups, including An Taisce and other environmental NGOs, development NGOs such as Trócaire, faith-based groups, community groups, etc.

The report’s recommendations are aimed at ensuring Ireland’s food production is in line with commitments to the UN Sustainable Development Goals, the Paris Agreement, the EU Green Deal, and national and EU environmental legal obligations, all while supporting farming livelihoods and rural communities. The suggested actions will help incentivise farm diversification, increase farm incomes and security, restore biodiversity on farmland and good water quality, lower greenhouse gas and ammonia emissions, and contribute to Ireland’s food security.

Our work is informed by the evidence available on the central importance of the environment and the necessity to focus on its protection for the good of society in the long term. With that in mind, we will continue to be an advocate for greater, stronger and equitable change for the wellbeing of both people and planet.

Notes

[1] Ireland has breached its 116kt per annum ammonia limit under the National Emissions Ceiling Directive (2016/2284/EU) since 2016, 99% of which is caused by agriculture. Ireland is legally obliged under the Directive to decrease its ammonia emissions to 107.5kt by 2030. This ongoing breach is currently subject to an EU legal infringement complaint.

[2] Scotland has laid out a detailed legislative  formula for Just Transition Principles: https://www.legislation.gov.uk/asp/2019/15/part/3/crossheading/climate-change-plan/enacted

Originally Published by An Taisce on 12th May, 2021 at bit.ly/3HlkU6g

UPDATES:

The Irish Supreme Court granted An Taisce leave to appeal Kilkenny cheese plant planning decision (September 2021).   https://bit.ly/35oSIBc

Tim Healy, “All grounds can be raised in An Taisce appeal over cheese factory,” Irish Independent (7 Dec 2021). bit.ly/35AAL2Q

The Supreme Court has held that An Taisce will be free to raise all grounds in its appeal over a refusal to quash permission for the Glanbia cheese factory in Co Kilkenny.

Oral arguments in the appeal were heard by the Supreme Court in January 2022.