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Transcript of Columns Picture here Reflections on the Future of Environmental Justice in Ireland Áine Ryall...
Columns Picture here
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