There is no doubt that the legal opinion delivered yesterday by the European Union's Advocate General amounts to a significant setback for the Government's campaign to have Britain's Sellafield nuclear reprocessing complex closed.
The Advocate General, whose opinions almost invariably presage rulings by the European Court of Justice, has found that the appropriate legal forum for pursuing this issue of dispute between Ireland and Britain is the court, and not via the United Nations Law of the Sea Convention, the option pursued by the Government.
If the Advocate General's opinion is indeed upheld by the court, then the Government will have been put in its place. After all, as it well knows, the issue of nuclear safety is clearly within the EU's remit. Indeed, this may explain why former environment minister Martin Cullen took such a highly publicised case over Sellafield to the independent Permanent Court of Arbitration in The Hague in 2002.
It did not get very far in The Hague either. The first case, taken under the Ospar Convention for the Protection of the Marine Environment, produced a verdict that Ireland's demand for the release of commercially sensitive information on the Mox plant at Sellafield did not fall within the scope of the convention. The outcome of the second case, taken under the Law of the Sea Convention, was even more discouraging. In its preliminary ruling, the Hague tribunal rejected Ireland's demand for an end to radioactive discharges from the Mox plant because the Government had not established that they were of sufficient magnitude to cause "an urgent and serious risk of irreparable harm" to the marine environment of the Irish Sea.
But whatever about the relatively minor impact on the Irish Sea, it is unquestionable that the reprocessing - even the storage - of highly radioactive spent nuclear fuel at Sellafield poses a continuing threat to Ireland. This arises not just because of the danger of accidents (of which there have been far too many), but also because the plant itself is a potential terrorist target. However, although it is clearly in our national interest that it should be closed, it is not within our competence to achieve this. Closure is even less likely now, given that the British government's latest energy review will probably recommend more nuclear power stations - ostensibly because they would help to reduce the carbon dioxide emissions blamed for causing climate change; indeed, this argument has become the principal argument of the nuclear lobby.
Yesterday, Fine Gael TD and MEP Gay Mitchell called for an end to the legal "posturing" over Sellafield and suggested that Ireland and Britain "behave like good neighbours" and seek to establish a bilateral agency to oversee environmental and nuclear safety issues. After all, it is not as if the Government comes to this issue with clean hands: the raft of legal actions by the European Commission speaks volumes about Ireland's failure to implement adequate measures to protect its own environment.