Lack of enforcement of environmental laws ‘a national scandal’

The lack of enforcement of environmental laws in the face of flagrant disregard by waste operators “is a national scandal”, according to an expert on environmental law.

Commenting on the recent RTÉ Investigates programme on "Ireland's Wild Waste", Dr Áine Ryall of UCC said: "We were presented with images of wanton environmental destruction on an absolutely outrageous scale."

Public outrage about the programme had died down quickly, however, and she could see no evidence of follow-up, Dr Ryall told a legal conference reviewing the impact of the 20-year-old Aarhus Convention on access to environmental justice –

Dr Ryall, who is vice chair of the convention’s compliance committee, said: “There is a lesson there for all of us. Sustained public pressure is needed if there’s going to be any meaningful action on waste at political level.

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“But the scandal now is, given the scale of the problem revealed, that we don’t act to make sure that this comes to an end, and that our systems of enforcement are completely redesigned to ensure that this kind of thing cannot be allowed happen.”

Dr Ryall said she could say the same about planning laws. Such failures underlined the importance of the ability of individuals and NGOs to turn to the courts where the State and regulators failed to act in a prompt and effective manner. The convention, she said, facilitated access to justice while ensuring costs were not prohibitive.

Ireland, she said, was focused on judicial reviews and challenging planning decisions but paid less attention on enforcement once a planning permission or waste licence was granted - "how we police that and follow up to make sure the terms and conditions of those licences are complied with".

On Government proposals to amend judicial appeal legislation on strategic infrastructure projects, she said the Bill when published should not give the State a free hand, and must comply with the convention.

Dr Ryall highlighted moves to reduce time limits for making submissions from eight to four weeks and changes to requirements on individuals and NGOs bringing challenges.

The intention was to reduce the number of challenges, she believed, but it was “disappointing the Government has not published the reasoning behind these proposals”.

Liam Cashman of the European Commission's Environment Directorate-General told the Environmental Pillar conference at the weekend that Ireland stood out due to high legal costs in environmental cases. Costs of litigation should be predictable from the outset and not be prohibitive, especially where those bringing cases do not succeed in their actions, he said.

Chief Justice Mr Justice Frank Clarke confirmed a surprising number of environmental cases were coming before the Supreme Court, and high associated legal costs was an issue. There had been difficulty implementing provisions of the convention in most countries, while the high costs issue arose in countries operating in "common-law tradition".

Speaking at an event marking the formation of an environmental bar association last week, Mr Justice Clarke acknowledged the courts needed to play their part “in ensuring our systems are as good as they can be so as to lead to timely disposition of environmental litigation”.

But he warned that if legislators both in Europe and in Leinster House continued to produce "unclear or unduly complex legislation issues" they would take a lot of effort to resolve.

“As long as that remains the case then projects are going to be held up,” he added. “This is a cry which is not based on a complaint that the policy behind any particular piece of legislation is wrong. That is not a judge’s business. It is a cry for clearer legislation which will make the resolution of environmental litigation easier and therefore quicker.”

Mr Justice Clarke said: “If there is a political demand for greater speed in the resolution of environmental cases then a significant part of the solution lies in the production of clear and well worked out legislation.”

If that does not happen there would continue to be projects which, even though they may successfully clear all hurdles at the end of the day, may suffer by being held up for too long, he said.