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Reflections on the Future of Environmental Justice

in Ireland

Áine Ryall @EnvJusticeUCC

3 April 2014

#envucc2014

Environmental Justice: Back to Basics

18th recital to Aarhus Convention:

Effective judicial mechanisms should be accessible to the public, including

ENGOs

Environmental Justice: Back to Basics

Why so important?

To ensure the public’s legitimate interests are protected

To ensure the law is enforced

Aarhus Convention & Access to Environmental Justice

Aarhus Convention - Article 9

Access to Justice in Environmental Matters

Right of access to a review procedure:

- to enforce the rights conferred by the Aarhus Convention and

- to enforce environmental law generally

Ireland & Access to Environmental Justice

Main focus is still the cost of environmental litigation

Special costs rules only apply in certain categories of environmental litigation:

- Section 50B Planning & Development Act 2000 (as amended)

- Part 2 Environment (Miscellaneous Provisions) Act 2011

Ireland & the cost of environmental litigation

Serious shortcomings & practical problems with the special costs rules

Lingering uncertainty as to their scope of application → simply fuelling further satellite litigation

Further amendments to the special costs rules are anticipated by way of primary legislation

Ireland & the cost of environmental litigation

Costs – what is the basic obligation?

Costs must not be “prohibitively expensive”

Case C-260/11 Edwards, 11 April 2013

Case C-530/11 Commission v UK, 13 February 2014

Ireland & the cost of environmental litigation

Important series of cases from High Court on the special costs rules:

Holly Hunter v Nurendale Ltd [2013] IEHC 430, Hedigan J

Kimpton Vale Developments Ltd v An Bord Pleanála [2013] IEHC 442, Hogan J

Holly Hunter v EPA [2013] IEHC 591, Hedigan J

Ireland & the cost of environmental litigation

Tesco v Cork County Council [2013] IEHC 580, Peart J

Browne v Fingal Co Co [2013] IEHC 630, Peart J

Plus a somewhat cryptic SCt judgment:

Coffey et al v EPA [2013] IESC 31

Ireland & the cost of environmental litigation

A system in transition to an Aarhus-compliant system

We’ve seen significant changes in how we deal with costs in certain environmental cases as a direct result of obligations under the Aarhus Convention & EU law

But what is the impact of the special costs rules in practice?

Ireland & the cost of environmental litigation

Are the current Irish rules governing costs in environmental litigation compatible with Aarhus and EU law?

Clearly “No” – significant shortcomings remain

And significant issues are still obvious in how we respond to Aarhus and EU obligations generally

There are significant issues beyond costs

Commissioner for Environmental Information – appeal fees, delays & resource constraints?

Standard of review? The legacy of O’Keeffe?

Availability of ex tempore court rulings?

Timely access to justice?

How we respond to Aarhus & EU obligations

A reactive, piecemeal, ad hoc response to date

→ Deficient legislation → a trigger for litigation

A strategic, collaborative and forward-looking approach is required

Significant missed opportunities

Reflections on the future & how we should move forward

Important lessons from the UK experience

How do we unfold Aarhus & EU obligations and integrate them successfully into our legal system?

Reflections on the future & how we should move forward

Ensuring Access to Environmental Justice in England & Wales - “The Sullivan Report” May 2008, updated August 2010

Sullivan Report - ahead of its time?

Identify issues and consider practical solutions

Independent Expert Working Group model?

Unfinished Business

Report of the Environmental Protection Agency Review Group (May 2011) - recommended a wider review of environmental governance in Ireland

→Time to construct and argue for a future agenda based on more joined up-thinking

We must work to mainstream Aarhus obligations

Innovation & Impact

Explore new approaches & new models to deliver an integrated system of environmental justice

Improve quality of environmental decision-making at first instance

Establish effective complaints mechanisms at national level

Innovation & Impact

Resource public authorities to enforce planning & environmental law

Reduce the need for judicial reviews triggered by basic shortcomings in the system of

environmental governance

Fresh thinking?

What is our vision for the future of environmental justice in Ireland?

New Approaches

Analysis → Coherent Strategy

↓Action

↓Environmental Justice/

Rule of Environmental Law

Acknowledgement

This paper draws on research undertaken as part of the project ‘Mapping the Future of Environmental Justice in Ireland’ funded by an Irish Research CouncilNew Foundations grant in 2013

www.environmentaljustice.ie