Dispute on nitrate pollution referred to European Court

The High Court has thrown into doubt the way in which the 1991 EC Directive on nitrate pollution from agriculture has been implemented in the UK. A group of farmers had challenged the legality of the designation of nitrate vulnerable zones (NVZs) under the Directive, and on 7 May the court decided that the issues of EC law were sufficiently uncertain for the matter to be referred to the European Court of Justice.

The Directive obliges Member States to identify both surface and groundwaters which contain or could contain more than 50mg/l of nitrate. Once such waters are identified, Member States must designate as NVZs those areas of land which drain into them, and implement action programmes to reduce nitrate inputs to them. Initial NVZ designations had to be made by the end of 1993, and reviewed at least every four years.

Regulations to implement the Directive in England and Wales were made last year, and in March 1996, after a lengthy consultation process, the Government announced an initial designation of 68 NVZs (ENDS Report 254, p 45 ).

In R v Secretary of State for the Environment and Minister of Agriculture, Fisheries and Food ex parte Standley and others, several farmers challenged the designation of a number of NVZs. The issues raised are of general application, since the main arguments concerned the interpretation of the Directive.

Evidence from the Government showed that it had adopted a three-stage approach towards designating NVZs. First, waters which were heavily polluted or showed a clear potential for pollution by nitrate were identified. Then areas of land draining into those waters were identified. Finally, the Government assessed whether agricultural sources were making a significant contribution to the levels of pollution identified.

The applicants argued that this approach was misconceived, given the underlying objective of the Directive to reduce nitrate pollution from agriculture. In their view, the Government should first have considered the sources of pollution, and identified only those waters where the nitrate limit was exceeded by reason of agricultural inputs. By failing to discount other possible sources of nitrate in the initial identification, the Government was potentially asking farmers to bear the costs of dealing with pollution by others.

The Government argued that this interpretation strained the language of the Directive. Whatever its underlying purpose, the Directive's criteria for initial identification referred to the 50mg/l limit, with no qualification concerning sources. If the applicants were right, the initial identification would exclude areas where agriculture made a contribution to nitrate pollution. In any event, the specific contribution from agriculture would be taken into account in the post-identification stages, and especially in devising action programmes. The Government also contended that accurate measurement of nitrate in surface waters which was attributable to agricultural sources alone was not practical.

The applicants countered by arguing that if this was right, the Directive fell foul of the "polluter pays" principle in Article 130r of the EC Treaty, and was unlawful as such. In effect, the Directive allowed for the costs of reducing nitrate levels below 50mg/l to fall solely on farmers, even though agriculture was only one of a number of nitrate sources.

The court heard evidence that other EC countries were taking rather different approaches towards implementing the Directive, and was aware of the problem of different language versions of the Directive which might lead to subtle differences of interpretation. According to general principles of Community law, all the language versions of EC legislation have equal legal validity, presenting particular problems for national judges when dealing with ambiguities.

Mr Justice Potts concluded that the arguments of both the applicants and the Government would require words to be read into the Directive, and felt that he could not with complete confidence resolve these issues of construction. He therefore felt that the matter should be referred to the European Court of Justice.

Under the referral procedures contained in the Treaty, any national court may refer a matter of EC law to the European Court of Justice for an authoritative interpretation. Essentially, the Court confines itself to considering issues of Community law, and then refers the matter back to the national court to apply those principles to the matter before it.

Given the time-scales involved - the backlog in the European Court is such that a referral may take two years or so - national judges, particularly in the lower courts, are often reluctant to refer cases. This was well illustrated in last year's Lappel Bank decision concerning the Directive on bird conservation, where the case had to reach the House of Lords before a reference was made (ENDS Report 260, p 43 ).

The Standley case appears to be one of the first in which the High Court has made a direct reference in a dispute concerning Community environmental law. In the meantime, further progress in implementing the nitrate Directive, which has already been subject to considerable delays, may be impeded until the conclusion of the case.

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