UCC Law & Environment 2014 – final

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Reflections on the
Future of Environmental Justice
in Ireland
Áine Ryall
3 April 2014
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
To ensure the law is
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
& 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
& 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
& 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
& 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
& 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
& 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
& 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
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 decisionmaking 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
Environmental Justice/
Rule of Environmental Law
This paper draws on research undertaken as part
of the project ‘Mapping the Future of Environmental
Justice in Ireland’ funded by an Irish Research Council
New Foundations grant in 2013