Environmental decision-making is a hot topic. It’s inherently controversial and highly political. Climate, energy, water, biodiversity and land-use planning all pose significant challenges for government and generate strong opinions on the best way to address these challenges.
Under an international treaty known as the Aarhus Convention, which Ireland ratified in June 2012, the public enjoys significant environmental rights including: the right of access to environmental information; the right to participate in decision-making; and the right of access to justice to enforce environmental law at a cost that is not “prohibitively expensive”.
These rights are significant because they are designed to ensure that the public interest in environmental protection is respected and that environmental laws are enforced. But what impact do these rights have on a day-to-day basis in Irish planning and environmental law?
There is a legal right of access to environmental information held by public authorities, subject to certain, very limited, exceptions. However, where a public authority either fails to respond to a request for access, or refuses access, it costs €150 to bring an appeal to the Commissioner for Environmental Information (a reduced fee applies in certain cases). As things stand, there is absolutely no guarantee of a timely determination of any such appeal. Long delays in determining appeals are, in fact, commonplace. Plainly, the Office of the Commissioner for Environmental Information is not currently delivering an effective remedy where access to information is delayed or denied. (The commissioner’s annual report for 2012 makes grim reading: an office “stretched beyond its limits at present, with a significant backlog of cases already on hand”).
Public participation
As regards the right to participate in decision-making, the situation is more positive. There is a strong tradition of active public participation in planning and environmental matters in Ireland. In complex cases, however, significant advance notice of an application for a planning permission, licence or consent (as the case may be) is essential in order to prepare to participate effectively. Moreover, expert technical and/or legal advice is usually necessary in order to prepare a cogent submission. The strict, and generally rather short, time limits that apply in planning and environmental decision-making procedures do not always facilitate effective participation. Plus, expert advice usually comes at a cost. Not all individuals and local communities are in a position to foot this cost, thereby impacting on the effectiveness of their participation.
Delivering access to justice in environmental matters is where the most significant problems arise in practice. The primary means of challenging planning and environmental decisions is judicial review in the High Court. The Aarhus Convention and EU law have led to important changes in the rules governing costs in certain categories of environmental litigation. The special costs rules that now apply provide that each party to the litigation is to bear their own costs and the court may award a successful applicant their costs (or a portion of their costs). The special costs rules are very significant. Where they apply, these rules, in effect, remove the risk of liability for the other side’s costs in the event of an unsuccessful challenge. There is no doubt but that this represents a major improvement on the previous position.
The problem is that the scope of the special costs rules is unduly narrow. They apply to judicial review proceedings involving environmental impact assessment, strategic environmental assessment and integrated pollution control, as well as a range of proceedings aimed at enforcing planning and environmental law. But this leaves many areas of planning and environmental law that are not covered by the special rules. Plus there is still considerable uncertainty as to when exactly the special rules will apply.
The special costs rules do not go far enough to meet the requirements of the Aarhus Convention. Not surprisingly, amendments to the current rules are anticipated to address this situation.
It is disappointing that the Government’s reaction to the Aarhus Convention regarding the cost of environmental litigation has been largely reactive and piecemeal to date. Ad hoc legislative change has simply triggered more litigation and led to widespread uncertainty around costs in environmental cases.
We lack a vision for the future of environmental justice in Ireland. With new legislation on the horizon, now is the time to articulate such a vision and to explore new approaches to deliver an integrated system of environmental justice. Piecemeal tinkering with costs rules is no longer an option. More fundamental change, driven by a clear vision of what we want to achieve as a democratic society in terms of environmental justice, is long overdue.
Áine Ryall lectures in environmental law at UCC. This article is based on a paper delivered at the Law & the Environment conference held at UCC on April 3 rd, 2014. Follow developments via @EnvJusticeUCC