The Government faces an interesting choice on whether to pursue its case against the United Kingdom on the Sellafield nuclear reprocessing plant under European law, following the European Court of Justice's (ECJ) ruling that Ireland was wrong to bring the case to the United Nations.
This is an important judgment. Potentially it enlarges the substantive legal scope of the ECJ to determine the environmental issue in dispute over Sellafield - that the plant is polluting the Irish Sea with nuclear waste - rather than delimiting the legal process involved. The Government should take the opportunity to test these issues, now that it has been made clear the EU channel can be used.
The issues have become more pressing after Tony Blair's statement last month that replacing Britain's ageing nuclear power stations is "back on the agenda with a vengeance" because of global warming, the growing energy crisis and the need for Britain to avoid becoming 90 per cent dependent on imported gas for electricity generation. This will involve a commitment to renew nuclear power - and presumably, therefore, to enlarge Sellafield's role as a reprocessing plant.
Ireland is especially exposed to the real downside of the argument about using nuclear power to tackle the international energy crisis. The task of managing the radioactive waste produced is passed on not only to future generations, but to those living adjacent to a serially lax management regime at the plant.
Responding to these changing circumstances will be tricky - all the more so following the Government's decision to build an electricity interconnector between Ireland and Britain as a way to increase energy security. This means we will become clients of Britain's nuclear power industry. Is it hypocritical to pursue the Sellafield question in that case? Not so. The fundamental matter of whether nuclear power is justified is not at issue between Ireland and the UK. What concerns the Government is how to prevent nuclear pollution of the Irish Sea, affecting the health of Irish citizens, and how best to pursue that issue in international law.
In response to this judgment the Government should prepare a substantive case on nuclear waste in the marine environment to be heard by the European Court of Justice, drawing on the relevant body of EU law. If that case falls because of a lack of legal competence it would be open to the Government to renew the case it took before the Law of the Sea Tribunal in Hamburg, claiming that Sellafield has illegally polluted the Irish Sea. It would then be on firmer legal ground to do so.