A 12-year legal battle by four Co Louth residents aimed at closing the Sellafield nuclear reprocessing plant may have come to an end, with a Supreme Court decision yesterday which affirmed a High Court decision that the Irish courts have no jurisdiction to hear the case.
The three-judge Supreme Court agreed with a High Court ruling that the Irish court does not have jurisdiction to decide if the Thorp nuclear reprocessing plant at Sellafield should have been subject to an environmental impact assessment (EIA) in line with EU directives.
In light of that finding, the Supreme Court also upheld the High Court decision that the Irish courts cannot make mandatory orders against British Nuclear Fuels Ltd (BNFL), compelling it to comply with the same directives.
The action was initiated in 1994 by Constance Short, Mary Kavanagh, Mark Dearey and Olann Herr, who all live in Co Louth. They claimed Britain failed to observe EU directives in relation to the reprocessing plant and sought an injunction directing BNFL to comply with those directives. They were also seeking damages for alleged assault, nuisance, trespass and negligence.
Their complaint was that BNFL, in operating Thorp at Sellafield, had caused discharges into the Irish Sea resulting in pollution of the environment and damage or potential damage to their health. The four had appealed to the Supreme Court against a High Court judge's determination of various points of law.
Giving the Supreme Court's reserved judgment yesterday, Mr Justice Nial Fennelly said the ultimate question was whether the courts of one member state in the EU - Ireland - had jurisdiction to determine the lawfulness and validity of administrative procedures and decisions of another member state - the UK - in circumstances where such decisions had rendered lawful activities alleged to cause damage in Ireland.
Mr Justice Fennelly said he was satisfied that the High Court judge was correct to hold that the High Court does not have that jurisdiction.
The authorisations and decisions under which BNFL operated were granted under UK laws and the courts of the UK had jurisdiction to determine the validity of those decisions in accordance with English law. It was a matter for the English courts, where they are obliged to do so, to interpret national law in the light of EU law. It would be "patently absurd" for the courts of another member state to exercise such a power.
The residents had brought their proceedings after the development of the Thorp facility at Sellafield in the 1990s. In February 2003, the High Court said the residents' statement of claim disclosed two separate actions - one against the State and the second against BNFL - and directed that a number of preliminary issues be determined. In relation to the case against BNFL, it directed that the High Court should decide whether it had jurisdiction to declare whether Thorp should have been subject to an EIA within the meaning of EC Council Directive 85/337 and/or that it should have been subject to a "justification procedures" as provided by Euratom directives.
British Government confirms support for nuclear plants: page 8;
Editorial comment: page 15