James O’Brien is worried about the financial impact the stalling of a proposed cheese factory in Belview, Co Kilkenny will have on his business. 

The dairy farmer, who is based eight miles outside Kilkenny, has invested significantly over the past two years to increase his milk production in anticipation of the contested factory. 

Sheds have been amended and he has been slowly moving his herd away from beef to dairy. With 125 dairy cows on the ground that will be fully ready to be milked in time for next summer – the original opening date of the factory – O’Brien is set to suffer a setback. 

“There is a worry over what we’re going to do with those animals and what we are going to do with the extra milk,” O’Brien says. “The feedback from the co-op is that they haven’t got the capacity to process that milk. I’m hoping to produce extra litres of milk, but I have no home to go to with it.”

The €150 million factory – a venture between Glanbia and Dutch dairy producer Royal A-ware – has faced delays due to an appeal by An Taisce with An Bord Pleanála (ABP) and a subsequent judicial review launched in August last year on ABP’s decision to grant planning. There has been further uncertainty in the last couple of weeks, with the environmental charity set to challenge a High Court decision made by Judge Richard Humphreys not to overturn planning permission for the cheese factory. 

An Taisce, which has come under huge pressure politically – with Taoiseach Micheál Martin asking for it to not appeal the High Court verdict this month – is arguing the environmental impact assessment that is a part of the planning process needs to look at the indirect impact on the environment of milk production by the individual farmers involved.

In his decision in favour of planning permission, Humphreys says this is a policy issue that should be solved in the electoral process – perhaps a nod to the fact that environmental activists are moving towards litigating around policy issues as opposed to individual projects. 

The case law emerging from this and other cases is laying down new rules around how far a given development and its inputs can be assessed against commitments made by the national authorities. These rules will then apply to future applications, with implications from factories to housing and data centres.

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While industry experts are of the opinion that the courts should not be used to slow down an industrial project like this, climate change is at the top of the agenda for many, and activists believe that the agri-food sector needs to take more responsibility in bringing greenhouse gas emissions.

O’Brien is just one of 4,000 farmers supplying milk to Glanbia that is now facing a cap on milk quota supply for next year because of the delays to this project. It is estimated that, collectively, farmers have spent €1 billion on equipping their farms to meet the demand needed by the factory, while they are set to get €180 million annual milk payments from the joint venture.

“We have spent in the hundreds of thousands developing the farm because we saw this as an opportunity to progress and we did it with the knowledge that we were following government policy,” O’Brien says, referring to the abolition of EU milk quotas in 2015. 

He feels that farmers are seen as the bad guys when it comes to climate change and argues it is not the case. “There’s been a 180-degree turnaround. If you go back a few years ago the politicians were thanking the farming community for taking the country out of the recession, whereas now we seem to be the villains of the environment.”

“Farmers are equally concerned about global climate change, but we have to remember that we live in a global world and the solution needs to be global. We can produce food in Ireland economically efficiently, but also environmentally efficiently as well.”

O’Brien argues that, although his farm has moved more towards dairy, his herd count hasn’t changed and is not more damaging to the environment. “In my case, I’m not going to increase anything in livestock numbers. I will produce more milk and I can produce more milk from my animals.”

“We believe it is very clearly a planning question.”

Elaine McGoff, An Taisce

An Taisce argues otherwise and has aired its concerns that the production of 450 million litres of milk needed annually to supply the factory would increase greenhouse gas emissions.

Elaine McGoff, natural environment officer for the State’s heritage and conservation body, tells The Currency: “The indirect effects of the extra milk production should have been considered as part of the planning decision. It is a fundamental part of being able to run the plant.”

She says the courts have “not sufficiently” answered the body’s question around what methodology needs to be used for the environmental impact assessment and that is why it has decided to appeal the High Court decision next month.

McGoff says that though she sees where he is coming from, she disagrees with Judge Humphreys that this is a policy issue An Taisce has raised at court: “We believe it is very clearly a planning question.” 

“For a legal professional or judge to say that this is a policy challenge over a planning challenge is not that unusual in their comeback,” she says. 

Her stance is in contrast to a recent interview on RTÉ, where she raised points of national environmental, agricultural and trade policy in support of the litigation. “We want a thriving and diverse environment, one that works for nature and for all people, but what doesn’t fit within that is the over-intensification of dairy and that’s why we’re challenging this,” she told Morning Ireland on May 13. “If we do invest in this and keep going down this road of intensification, it undermines the green image that farming in Ireland so depends on.” 

McGoff says An Taisce is taking the case on similar grounds to the one over Bord na Móna’s Edenderry power plant in 2015. The High Court ruled there was a link between the bogs that supplied the peat to the plant, which should have been considered in the decision-making. “We successfully argued that the peat extraction and harvesting should be considered in the environmental impact assessment for the power plant, and we won that case.”

While a precedent seems to have been set, does this mean that An Taisce will continue to raise challenges to other developments into the future? McGoff says the body will be taking it on a “case-by-case basis.” “We take a case on its merit. We look at what assessment has been made and base our decision around that. It’s not like we are going to target all agricultural infrastructure, or all data centres.”

When asked why An Taisce did not raise the same challenge over a similar €130 million Glanbia cheese factory joint venture with US partner Leprino Foods in Portlaoise that got the go-ahead in 2019, McGoff says she was not familiar with that project and declined to comment any further. 

“An Taisce is objecting to government policy on the back of the 2025 Food Wise strategy.”

Law professor Owen McIntyre

Owen McIntyre, professor at University College Cork’s school of law, says that An Taisce’s request to look at the factory’s inputs – increased dairy – “isn’t an unreasonable one” and is more in line with what is being done internationally.  However, he does outline that the High Court does seem to have an issue with a challenge being made to government policy. 

“They are challenging government policy on the intensification of agriculture. The court said that you can challenge a particular project, but that An Taisce is objecting to government policy on the back of the 2025 Food Wise strategy.” The strategy agreed in 2015 between the agri-food industry and the government targeted a 65 per cent increase in agricultural production and 85 per cent increase in exports by value over the following decade.

McIntyre says because of this, An Taisce will now be arguing around the specific development and the environmental impact assessment. “They will argue the EIA is inadequate and did not correctly or adequately inform the planning decision.”

“The court will have to decide will they take a progressive view in relation to the methodology required for an adequate assessment. If it were a project to do with energy production, they would absolutely look at the inputs in terms of fuel.”

McIntyre says that if this step is taken, it would have “big implications for our national agricultural policy”. 

Would it mean there would be an increase in litigation by environmental activists on points of policy through individual cases? 

From the Climate Case to the cheese case

According to Andrew Jackson, assistant professor of environmental law at UCD, who acted for Friends of the Irish Environment (FIE) in the successful Climate Case 2017-2020, the trend is already here in an international context. 

“Climate Case Ireland was inspired by the Dutch case… and last month Germany’s highest court cited the Irish Supreme Court decision in a similar systemic climate case.”

FIE took a claim against the Irish government over failure to take adequate action on climate change and won in the Supreme Court. The case outlined the weakness and vagueness of the National Mitigation Plan, which has since been replaced by the Climate Action Plan 2019. 

“So, what you see now is a lineage between the highest courts in Europe and indeed the world, on climate decisions that pave the way for the next. So, certainly dialogue is happening internationally and of course the expectation would be that Climate Case Ireland provides inspiration for others to enforce legal obligations and require that climate action be taken.”

Nevertheless, Jackson highlights that project-based challenges have always been taken in Ireland. “It’s fair to say it is quite an active jurisdiction for environmental litigation – there have been project-based challenges for many years and those have continued after the climate case.”

Jackson explains this case worked with influencing policy because the Climate Change Act 2015 was already in place and it could be proven that the government’s ambitions in the 2017 National Mitigation Plan did not comply with its legal obligations.

“You can’t just go into court and say, we disagree with government policy and we think we have a better one. You will never succeed. But this is not what An Taisce is doing in the Glanbia case – they are trying to enforce legal obligations. In Climate Case Ireland we said there are elements of the obligations in the Climate Act that the government has not complied with.

“In the Supreme Court we succeeded by saying there was a provision in the Act that says the National Mitigation Plan had to specify the manner in which the government proposed to achieve the so-called national transition objective and the Supreme Court agreed the plan didn’t do that. It was vague and aspirational.”

Another part of FIE’s case was a rights-based challenge that the policy infringed human rights under the Constitution and the European Convention on Human Rights. “The argument was if you accept the science of climate change, as the government have, then you need to reduce emissions rapidly and deeply, but if you then do the opposite, you are responsible for the risk of harm that will follow.”

Jackson explains that the Supreme Court decided FIE was a corporate body and did not have standing to litigate personal rights. 

He stresses that An Taisce’s case and the Climate Case could bear a resemblance, with High Court judges initially ruling both to be about a policy issue and not for the courts to decide. 

For instance, the decision by Judge Michael McGrath in the High Court stated that parts of the Climate Change Act under consideration were “couched in terms of measures and considerations” and said this shouldn’t be adjudicated on in a court but by government: “I also accept that it is not part of the function of the court to second-guess the opinion of government on such issues.” 

However, when the Climate Case reached the Supreme Court, Judge Frank Clarke concluded that the issues brought before the court were “justiciable and do not amount to an impermissible impingement by the courts into areas of policy. What might once have been policy has become law by virtue of the enactment of the 2015 Act.”  

“The Irish Supreme Court identified a very narrow domestic law issue regarding mistakes made in complying with the Irish laws.”

Brendan Slattery, McCann Fitzgerald

Perhaps, An Taisce’s challenge will achieve a similar result. Though others dispute this. Brendan Slattery, partner in environmental law at McCann Fitzgerald, thinks the Irish Climate Case had a stronger argument. 

“It was a direct attack on the relevant policy and so it was well constituted. It was the National Mitigation Plan under the relevant climate legislation, which apparently has been displaced since by the Climate Action Plan, which is a great solution to the ultimate successful challenge to the mitigation plan. But it was a direct attack.”

“The interesting thing about the Climate Case is that while much celebrated as an example of Ireland’s doing the same [as other countries], when you get into the details of the Irish Supreme Court [decision] it didn’t champion the big themes. 

“The Irish Supreme Court identified a very narrow domestic law issue regarding mistakes made in complying with the Irish laws. While very important from a public engagement perspective and motivating action perspective, the litigation outcome is a very narrow win. And I think this might have slowed the pace of increased challenge to policy.”

When it comes to An Taisce’s challenge to the Glanbia factory, Slattery says the High Court decision is important for developers and decision makers. “The breadth of the An Taisce challenge made it almost impossible – the decision-making process and defending the planning process. So having a judgement like that, concluding that the board carried out a lawful assessment, is incredibly helpful.”

He says that the body has brought challenges like these in the past and will likely do it again in the future, comparing the Glanbia case to the previous challenge brought against the Bord na Móna plant. 

While An Taisce won the Bord na Móna case, Slattery argues that the project was easier to assess with the plant only using two bogs and asks how an environmental impact assessment can gauge the actions of 4,000 farmers producing milk. 

“Does the planning maker have to understand how each farmer is organising their farm and how these animals and the land is managed? From a climate change perspective, that’s an incredibly impossible challenge.”

Slattery says he does not believe environmental activists challenging planning developments through the Irish courts has a negative impact on foreign direct investment. “I don’t think investors should be afraid that there is a robust process here for checks and balances on decision-making.”

The lawyer does say there was an initial delay between An Taisce lodging papers in August of last year to seek a judicial review of ABPs verdict and the time when the High Court granted that leave at the end of November. “That period of delay is both surprising and unwelcome – for a project of significance to be lost in the process for that period of time is not good for the courts.”

Slattery, however, did make the point that from November onwards that pace accelerated and was decent by international standards. Yet when it comes to the planning process in Ireland, he says parts of the system are “creaking” and there is a need for court resources to move things along.

Further reading

Irish agri-food is facing up to its climate responsibility – it’s just 10 years late