By Pat Swords, Turn 180
‘A test case in relation to Citizens’ Rights in Ireland and Environmental Democracy’
2. The Compliance Investigation at the UNECE Legal Tribunal
3. The Resulting Judicial Review in the High Court
4. Access to Justice under EU Law and your Rights under the Convention.
5. Ireland – Access to Information on the Environment
6. Ireland – Public Participation in Decision-Making.
7. Ireland – Access to Justice.
The Judicial Review in the Irish High Court scheduled for the 13th March 2013 has been adjourned until the 11th April. The Irish State submitted a more detailed Affidavit on the 7th March, which required additional work to respond to and the Court deferred the hearing to allow for an additional Affidavit to be prepared and for the exchange of submissions one week before the hearing.
What is clear is that this case goes to the heart of the Citizen’s rights and to the principle; Quis custodiet ipsos custodes? (Who watches the watchmen?). Can Irish law continue to operate outside the framework of European Community legislation and Treaty arrangements with the United Nations; in particular as Ireland has since June 2012 ratified the United Nations Economic Commission for Europe’s (UNECE) Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters?
Can this renewable energy programme, with its enormous financial costs and impacts on the environment be forced through by an administration in a manner, which is clearly outside of the law? To which one could add, the abject failures to demonstrate the effectiveness of the renewable technology chosen, i.e. wind energy, and the reasons for selecting it as suitable to receive billions in State Aid funding. A situation, in which the lack of transparency and accountability is so extreme, that one can only conclude that the system is wide open, not just to the pressure of lobbying, but to the possibility of corruption.
One can also ask what should be the most obvious question – how long are Irish citizens going to tolerate an administration, which actively subverts their democratic rights and uses considerable sums of their taxpayers’ funds to do so? Do they care that they have been effectively been ‘shut out’ of their rights in relation to the decision-making around them and that their State officials will do everything, including operating outside the legal framework, to ensure that this is the situation which remains?
2. The Compliance Investigation at the UNECE Legal Tribunal
Normally a Judicial Review would be dismissed if not brought within the specified time, but in my case the legal framework wasn’t there to allow such a challenge when Ireland’s National Renewable Energy Action Plan was notified on the 30th June 2010 to the EU Commission.
Instead the matter went to the Compliance Committee of the UNECE Aarhus Convention, where the Committee investigated the EU’s compliance with its obligations under the Convention in relation to the implementation of the 20% renewable energy by 2020 Directive in Ireland. This case at the Compliance Committee could not be taken against Ireland, as the Irish State had not then ratified the Convention, the only one of the 27 Member States not to do so. However, the EU had ratified the Convention in February 2005 and and in September 2007 the position of the Aarhus Convention on Community legal order in Ireland was clarified by the EU to the UNECE Compliance Committee, i.e. in theory it applied to Ireland through Community legal order. The communication was therefore submitted in October 2010 against the EU as a Party to the Convention and the Committee then initiated a compliance investigation with regard to the EU’s legal obligations under the Convention.
In its Affidavit to the High Court as part of the Judicial Review, the Department of Energy, Communications and Natural Resources declared that the State:
- “Was not a Party to the Committee’s proceedings, and was not heard, and the findings of the Committee were against the EU only”.
The facts of the matter are widely different to the above. Firstly, the Irish State was not only present as an observer at the Compliance Committee meeting in September 2011 in Geneva, but refused to offer any comments when offered the opportunity to do so by the Committee.
Secondly, the State actively participated in preparing the documentation for submittal by the EU to the Committee, a point known by the official, who swore the above affidavit, as correspondence previously obtained in late 2011 under the Access to Information on the Environment regulations demonstrated that she herself had actively assisted in preparing this documentation. Indeed the letter of the 23rd February 2011 from the Department of the Environment, Community and Local Government (John McCarthy, Assistant Secretary) to the Department of Energy, Communications and Natural Resources (Sarah White, Deputy Secretary) is highly revealing in this context:
- “As you will be aware from previous communications, Ireland is the only EU Member State which has not ratified the Aarhus Convention. However, as the EU is a Party to the Convention in its own right, it has certain obligations, not least an obligation to cooperate with the Aarhus Compliance Committee (ACC) on issues such as this. While we are anxious to avoid creating legal precedence by engaging directly with the ACC until such time as the Convention is ratified, nonetheless it is critical that the State cooperates fully with the Commission as it investigates this matter”.
In August 2012, the Compliance Committee ruled against the EU in that the implementation of the renewable energy programme had by-passed the necessary procedures in relation to environmental assessment and democratic accountability. Since then both Ireland and the EU have refused to comply with the recommendations of the Compliance Committee, which requires providing the public with the necessary information, completing the required public participation in decision making on the National Renewable Energy Action Plan when all options are open and taking due account of the public participation in the final decision.
3. The Resulting Judicial Review in the High Court
As a result of these illegalities, there was no option but to take the current National Renewable Energy Action Plan, and associated funding arrangement REFIT, into the Irish High Court for a Judicial Review. In response, the position the State is now adopting is that it has legitimacy to continue with the renewable programme, as (a) nobody initiated a Judicial Review in the High Court back in 2010 and; (b) because it does not recognise the findings and recommendations of the Compliance Committee of the Convention it has itself ratified. In layman’s terms; I can murder my wife and if you don’t take me to Court within x months, regardless of the fact that because of my actions the Court is not accessible to you, then I’m automatically innocent and can continue as I choose.
On my side my ‘defence’ is novel; nobody before in an Irish legal case has presented such a ruling from this international legal tribunal, a ruling which is associated with a history of refusal by the State to comply with the Convention and the associated framework of EU law. A Convention, which is not only an International Treaty, but also recognises that the environment does not belong to the State administration, but rather to the Citizens, who have to be provided with procedural rights; in other words environmental democracy. It is a somewhat complex situation, described now in further detail for those, who wish to be informed further.
4. Access to Justice under EU Law and your Rights under the Convention
In February 2005 the EU ratified the UNECE Aarhus Convention through Decision 2005/370. In ratifying the Convention, two Directives to the Member States were referred to; namely Directive 2003/4/EC on access to information on the environment and Directive 2003/35/EC on public participation. Directive 2003/4/EC is relatively straightforward in legal terms, as it transposed the first pillar of the Convention on access to and dissemination of environmental information.
The second Directive on public participation was more complex. Firstly it modified the cornerstone for planning approval of all medium and large scale projects, namely the Directive on Environmental Impact Assessment. Secondly it modified the environmental permitting of larger industrial facilities through the Directive on Integrated Pollution Prevention and Control. For both Directives, the citizen’s rights were defined not only in relation to public participation procedures, but also in relation to procedures for access to justice, in that one had to be provided with recourse to legal procedures in a court of law, which are fair, equitable, timely and not prohibitively expensive to “challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive”.
While under Community law such access to justice provisions was essentially only specifically directed at these two key EU Directives on planning and environmental permits, this fell a long way short of what the Aarhus Convention required in its Article 9(3), namely that a Party to the Convention shall ensure:
- “Members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”.
To clarify, the access to justice provisions in the Convention is not just limited to the acts and omissions of the authorities in relation to planning and environmental permits, but is broadened to a far wider scope to include the acts and omissions of private persons and with regard to challenging acts and omissions in relation to all aspects of environmental law. Simply put, with regard to matters related to environmental law, it solves ‘who watches the watchman’, as it gives the citizen the ‘tool box’ to ensure the necessary enforcement by himself or herself.
However, in ratification of the Aarhus Convention in February 2005, the EU ‘kicked to touch’; a Directive on access to justice could not be agreed on, so:
- “European Community also declares that the legal instruments in force do not cover fully the implementation of the obligations resulting from Article 9(3) of the Convention as they relate to administrative and judicial procedures to challenge acts and omissions by private persons and public authorities other than the institutions of the European Community as covered by Article 2(2)(d) of the Convention, and that, consequently, its Member States are responsible for the performance of these obligations at the time of approval of the Convention by the European Community and will remain so unless and until the Community, in the exercise of its powers under the EC Treaty, adopts provisions of Community law covering the implementation of those obligations”.
The Irish State not only sought to take advantage of the legislative vacuum above in relation to environmental democracy, but to actively ensure that its citizens were denied the rights bestowed upon them in relation to the two Member State Directives on access to information and public participation. While the Irish State was by far the worst Member State in relation to failures to comply with the above legislative requirements, less than compliant practices also occurred elsewhere. However, it is useful to go through the three Pillars of the Convention, on information, public participation in decision-making and access to justice and document where the position stands in Ireland.
5. Ireland – Access to Information on the Environment
Firstly while the Irish State finally transposed the relevant Directive 2003/4/EC in March 2007 by means of S.I. No 133 of 2007, more than two years after it was required to do so by Community law, it did not transpose it properly. In December 2011, the State had to make the necessary amendments through S.I. No. 662 of 2011, in particular with regards to the dissemination of information on the environment and that a public authority shall:
- “Ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable”
However, the ‘state of play’ with the regulations in Ireland can be best described as, if you go looking for environmental information, which they want to give you, then things generally run smoothly. If on the other hand you step out of their comfort zone, then public authorities will simply start engaging in an increasing amount of obstruction, even to the point of unlawful behaviour.
In principle under Article 9(1) of the Convention, the Citizen has to have access to an independent appeals process, if the citizen’s request for information has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of the Convention. This appeals procedure has to be fair, equitable, timely and not prohibitively expensive. In Ireland, there is a Commissioner for Environmental Information, which is part of the remit of the Ombudsman. As she herself states in her 2011 Report:
- “Moreover, despite the general duties placed on public authorities to facilitate access to environmental information, a general lack of awareness seems to persist among the public regarding their rights under the Regulations. My staff continue to be in communication with the Department in relation to the operation of the Regulations and have noted in particular that it is of some considerable concern to me that the level of awareness both by the public and public authorities remains very low”.
While the Convention, EU and National law require public authorities to:
- “Inform the public of their rights under these Regulations and provide information and guidance on the exercise of those rights”.
The reality is that this has not occurred. In fact experience has shown that the Department of the Environment itself is actively engaged in obstructing access to information about its activities.
With regard to taking appeals to the Commission for Environmental Information, this has a cost of €150 and takes between six months and over eighteen months for an appeal to be resolved. This certainly is not timely and is acting as a major disincentive for people seeking recourse to justice. Indeed, since the introduction of the regulations in 2007, the Commissioner has only resolved 25 appeals. Furthermore, in her latest report, she is making it clear she doesn’t have the resources to process them. It is however interesting to examine a number of these appeals.
In CEI/07/0005 the Department of the Taoiseach (Prime Minister) refused to provide access to documentation on emissions, citing Cabinet Confidentiality under the Constitution. However, Directive 2003/4/EC and the Convention are clear in that no exemptions apply in relation to emissions, this information must be publically available. The Department of the Taoiseach instead of then making the information available, spent considerable funds of taxpayers’ money contesting the matter in the High Court, from which the case has now gone to the Supreme Court, the critical issue being the manner in which the Irish regulations do not properly transpose the EU Directive.
The recent (February 2013) case in the High Court in relation to the National Asset Management Authority (NAMA) is also revealing. When NAMA was set up following the financial crises in Ireland to manage the assets of bankrupt property developers, it was exempt from the Freedom of Information legislation. However, it was as a public authority not exempt from the Convention and the EU and National law implementing it. Despite this it refused to comply with requests for information on the environment and the resulting decision of the Commissioner, which followed an appeal from a member of the public. Instead it contested the Commissioner’s decision in the High Court, where it lost, but not having first incurred €121,350 of legal costs, which had to be funded by the taxpayer, to whom it was using their money to subvert their rights. Additional legal costs would have been incurred by the Commissioner.
In Case CEI/10/0002 information was requested from An Bord Pleanala (the planning appeals board). Under the Convention and the Environmental Impact Assessment Directive, the competent authority for the planning decision has to make available the “the main reports and advice” issued to it. The outcome of the appeal was that the Commissioner ruled that no such information in relation to risk was held by An Bord Pleanala with regard to the Corrib Gas Pipeline it was assessing; a planning decision, which it conducted in a most unprofessional manner outside of the legal framework. As it turned out some months after the outcome of the appeal, such documentation as had been previously legally requested became publically available. When this was pointed out to the Commissioner for Environmental Information, her response was that there had been a two month period after her decision to appeal it to the High Court, which had not been exercised. Clearly An Bord Pleanala had no respect for the law that applied to them or the office of the Commissioner for Environmental Information.
Another equally sad feature that is reoccurring is that even when it can be documented that public authorities are disseminating blatantly false information or fail to have information, which they are legally required to have, no action is taken. In CEI/11/0003 in relation to the Department of Communications, Energy and Natural Resources, the Green Party Minister for Energy Eamon Ryan made claims on prime time TV that wind energy would reduce the costs for consumers and repeatedly stated that his department had national and international reports to confirm this. The subsequent request for information determined that no such reports existed; indeed the two provided in relation to the Irish situation, both had as a base case an installed capacity of 2,000 MW of wind energy and never even assessed the performance of the grid without this considerable investment in wind energy.
As far as the Department was concerned, it was the “Minister’s prerogative to draw the conclusions he deemed appropriate from the reports and other information available to him”. In reality, once the Minister assumes office, he is a member of the public authority and he is bound by its legal framework, in that information on the environment, which includes that given orally, has to be ‘up to date, accurate and comparable’. Unfortunately, such circumstances are routine, with the result is that the public are grossly misinformed about the environment around them and are not in a position to actively participate in the decision-making which occurs.
6. Ireland – Public Participation in Decision-Making
Public participation in decision making is a complete farce in Ireland; if it does occur at all it is simply the collection of submissions, which are then ignored; the decision having already been made by those in authority. If we consider the findings of the Compliance Committee referred to earlier in relation to the National Renewable Energy Action Plan and the public participation which occurred:
- “It was conducted within a very short time frame, namely two weeks. Public participation under article 7 of the Convention must meet the standards of the Convention, including article 6, paragraph 3, of the Convention, which requires reasonable time frames. A two week period is not a reasonable time frame for “the public to prepare and participate effectively”, taking into account the complexity of the plan or programme”.
In their Affidavit to the Court on the Judicial Review, the State made it clear that:
- “The process for ensuring sufficient grid connection to meet the 2020 target and the type of renewable energy concerned was decided well in advance of and before the submission of Ireland’s National Renewable Energy Action Plan in July 2010”.
To put this in context, the two week public consultation, which was held between the 11th June and 25th June, just before the notification date to the Commission on the 30th June 2012, never actually ‘mattered a dam’; it was all a done deal. If we consider the ‘Aarhus Convention: An Implementation Guide’, this is very clear in Page 109 in relation to how “each Party shall ensure that in the decision due account is taken of the outcome of the public participation”.
- “The relevant authority is ultimately responsible for the decision based on all information, including comments received, and should be able to show why a particular comment was rejected on substantive grounds”.
This is extremely important, as the guide puts it; “in appropriate circumstances a member of the public whose comments were not duly taken into account will be able to challenge the final decision in an administrative or judicial proceeding on this basis”. In essence it is this procedure which differentiates simply consulting with the public, i.e. telling them what we are doing, from what is the legally required public participation in decision-making, a key element of environmental democracy and the rights of the citizen.
However, despite a legal request for the documentation in which the Department of Communications, Energy and Natural Resources took account of the public participation on the National Renewable Energy Action Plan, there has been a refusal to provide any, a recurring theme with the farce that is public participation in Ireland.
Indeed, European law is quite specific, while Article 7 of the Convention requires that the ‘necessary information’ be provided to the public, Directive 2001/42/EC on Strategic Environmental Assessment requires that the plan or programme be subject to a process of Strategic Environmental Assessment, which is not only a key element in democratic accountability and public participation, but it ensures that:
- The environmental objectives of the programme are clearly defined.
- The alternatives to achieve those objectives are also defined.
- The likely state of evolution of the environment without implementation of the plan or programme is assessed.
- The impacts of the programme on the environmental factors, such as population, human health, biodiversity, landscape, climate, etc, are assessed.
- The appropriate mitigation measures are identified in relation to the impacts above.
- The programme is monitored for unforeseen adverse effects during its implementation phase.
In other words, it is about proceeding with due care and attention, ensuring that the programme is appropriate and proportionate. However, none of this was completed in Ireland for the renewable energy programme, a position which led the UNECE Aarhus Compliance Committee to accept Communication ACCC/C/2010/54 and initiate a compliance investigation.
Unfortunately, as history shows us, when a vacuum is created by the lack of defined and transparent procedures, then political agendas and exploitation of the circumstances occur, so too with the renewable energy programme. There are eleven different sources of renewable energy listed in Directive 2009/28/EC. In particular, it is internationally recognised that Waste to Energy plants can result in CO2 abatement cost of a third of that for wind. However, the coalition Government, which was in power up until early 2011 contain the Green Party, which was vehemently against such Waste to Energy plants. Unfortunately, the Department of the Environment acted according to their Green Party Minister John Gromely’s wishes to essentially put these legitimate businesses out of operation.
Firstly, they prepared their waste policy documentation utilising the services of the two companies, Eunomia and TBU, which prepared similar documentation for Greenpeace. The documentation was highly deficient. They then went to public participation on their Strategic Environmental Assessment and their programme to apply punitive levies on waste to energy plants. When the consultation closed, they refused to provide access to the Submissions received. This was appealed and finally resulted in the Submissions being posted on the website. The Submissions from the Environmental Protection Agency (EPA), the County & City Managers’ Association, the Regional Authorities for Waste Management and others pointed out that the proposed levies were not in compliance with EU legislation on waste management.
Despite this, a Bill had been published to introduce the levies on Waste to Energy and was proceeding through the second house, the Seanad, when the Government fell. It was therefore requested in April 2011 that documentation be provided in relation to the ‘taking account of the public participation exercise’ and procedures in relation to such public participation in decision-making.
There was a refusal by the Department of the Environment to provide this information; instead they requested a fee estimated at €146 for ‘search and retrieval’. This was appealed to Commissioner for Environmental Information, who finally in February 2012 ruled that the charging of such a fee for ‘search and retrieval’ was not appropriate. Despite this the Department are refusing to provide the relevant information citing as the reasons that they are considering appealing the Commissioner’s decision to the High Court.
A few months later with the new Government in place, the Department once again had a waste policy consultation and again it was requested that access to the submissions be provided and as to how ‘due account of the public participation would be taken in the final decision’. In their Reply AIE/2011/022 the Department stated:
- “At this time, no such records exist. When such records are generated, it may be the case that they are considered to be non-releasable on grounds such as the need to protect Cabinet confidentiality and the wider policy making deliberative process”.
I never did receive them. Sadly the whole process is one of patronage, which is wide open to abuses, abuses which are occurring with regularity.
The same issues arise with public participation in decision making with the planning process. With the Corrib Gas planning process the scientific evidence didn’t matter a jot, a political agenda was at play and in their letter of 29th January 2010 to the developer, which never appeared on the public register, An Bord Pleanala defined the critical statement that revealed the standard to be applied for assessing the route for the pipeline was:
- “The intent of the Board is to ensure that persons standing beside the dwellings will not receive a dangerous dose of thermal radiation in the worst case scenario of a “full bore rupture” of the pipeline at maximum pressure”.
Clearly this was the acceptance criteria in relation to risk. In effect several centuries of engineering experience in designing high pressure systems, such as guns or boilers, was completely irrelevant – it was going to completely split in two regardless. An Bord Pleanala were acting Ultra Vires by applying a condition, which was based solely on consideration of consequence, without any consideration of likelihood, the existing technical basis for design and approval of such piping systems and the experiences to date. The developer was left with no option after that letter of the 29th January, but to either bore a tunnel underground or bring An Bord Pleanala into the High Court. He chose to carry the cost of a tunnel, the reasons why will become clearer in the next section, at an estimated cost of €500 million, of which 25% represents lost revenue to the State.
StatoilHydro, who have a share in the this Corrib project in County Mayo, stated to the Media in August 2009, even before An Bord Pleanala refused to give planning permission to the final 9 km of pipeline:
- “When we look at political risk with practical consequence to project progress then Ireland unfortunately stands out as an example”.
As the Irish Academy of Engineering stated in their March 2010 Submission to the Joint Oireachtas Committee on Climate Change and Energy Security:
- When during the year the Chairman of Statoil publicly referred to the “political risk” of doing business in Ireland his comments would have been perceived by the international investment community as a major barrier to investment in Ireland. Political risk is what the oil industry normally associates with countries like Nigeria or Angola.
The costs of essentially being a ‘banana republic’, in which a small entrenched elite dispense favours to their favourites, while putting those that are not their favourites at an enormous commercial disadvantage, have reached the situation, where the political risks of investing in Ireland are simply too high.
7. Ireland – Access to Justice
As one moves from the first pillar of the Convention on information, through to the second pillar on public participation and finally to the third pillar on access to justice, the relative importance and significance rises; so too do the abject failures of the Irish State to comply, which is a deliberate feature and not occurring by accident. In Case C-427/07 Commission v Ireland, the Commission sought to address Ireland’s failure to comply with the requirement of ‘not prohibitively expensive’, with regard to the citizen’s right to challenge acts and omissions of public authorities in relation to planning and environmental permitting. Namely Directive 2003/35/EC as mentioned previously. These measures in relation to access to justice should have been in place by the 25th June 2005 by the latest.
The European Court in July 2009 found that the mere discretion of the Irish Courts to award costs after the event was not a valid implementation of the obligations in relation to ensuring the appellant’s rights in relation to ‘not prohibitively expensive’. Indeed Irish case law in the High Court on this issue had been pretty disastrous, in Friends of the Curragh Environment Limited v An Bord Pleanála  IEHC 243, Justice Kelly declined to make a protective cost order available, instead stating with regard to the Directive’s requirement on ‘not prohibitively expensive’:
- “The language is not sufficiently precise, clear or unconditional to render it of direct effect”.
Even worse happened in the case of Volkmar Klohn, who contested a planning decision adjacent to his organic farm in County Sligo, he was left not only with his own costs but also €86,000 of An Bord Pleanala’s costs. Justice Hedigan stating in May 2011 in relation to Article 29.6 of the Constitution, which provides that:
- “No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”
- “With regard to the Aarhus Convention, this convention is not applicable as Ireland has not formally ratified it”.
Therefore, ‘not prohibitively expensive’ simply did not exist; one could not rely on the Aarhus Convention or even the European Legislation, which implemented it.
There is also the aspect of ‘standing’; could one get over this first threshold of a Court appearance, where one is required to demonstrate a justifiable reason for a full Court hearing? Under Irish law to achieve standing one had to demonstrate ‘substantial interest’ and ‘substantial grounds’ for seeking a Judicial Review. In Harding v Cork County Council  IESC 27, the Supreme Court decided that in order to prove a substantial interest in an environmental planning case, an applicant must prove a peculiar and personal interest of significant weight which is affected by or connected with the development in question. This was in contravention to the Aarhus Convention, as it was too restrictive, and was finally updated by the Environment (Miscellaneous Provisions) Act of 2011, in which it was changed to ‘significant interest’.
Indeed despite the ratification of the Aarhus Convention on the 20th June 2012 and it taking effect ninety days later, the situation in relation to access to justice continues to be deplorable. Firstly, following the ruling of European Court in case C-427/07, the Planning and Development (Amendment) Act 2010, Section 33 specified for Judicial Reviews related to Directive 85/337/EEC on Environmental Impact Assessment, Directive 2001/42/EC on Strategic Environmental Assessment, Directive 2008/1/EC on Integrated Pollution Prevention and Control that each party (including any Notice Party) shall bear its own costs.
While, this may well have helped in that the Volkmar Klohn situation would not arise again, in that one would be forced to carry the costs of the planning authority, it fell far short of ‘not prohibitively expensive’. Clearly ‘inequality at arms’ still applied in that the State with unlimited resources could drag the case on for days and simply ‘burn out’ the appellant. Even worse, if in the past one had a very strong case there was the possibility that a lawyer would work ‘pro bono’, on the basis that if there was a win, the other side would pay the costs. Now under the new costs rules of each side pay their own, this was gone.
It wasn’t as if the State wasn’t warned about this and how these costs rules were a breach of the citizen’s rights, it was, it just chose to ignore it. Amazingly it was the Green Party Minister of State for Planning, Ciaran Cuffe, who defended the State’s position in restricting access to justice to its citizen’s in environmental matters.
Not unsurprisingly in May 2012, the EU Commission commenced formal proceedings against the State yet again in relation to access to justice and Directive 2003/35/EC. The problem is that these proceedings with the EU Commission take many years to have effect. Furthermore, one has to question the will and ability of the legal enforcement section of the Directorate General (DG) Environment, who in June 2009 were stating they were “prioritising work to improve access to justice in Ireland, which will include fresh infringement proceedings if necessary”. Nearly four years later there is really no evidence of anything having been achieved.
Indeed on the 3rd December 2010, on my own expense and time, I went to Brussels to meet with officials of the EU Commission (DG Environment and DG Energy), to discuss the repeated abuses of EU environmental legislation, which were occurring in Ireland and related to the CHAP(2010)00645 complaints file. I considered their behaviour and response at the meeting to have been downright unprofessional, in particular in that I had to listen to Liam Chapman, Deputy Head of Unit ENV A.2, Compliance Promotion, Governance and Legal Issues, repeatedly ‘moaning’ about how difficult it was to take the Irish State into a legal process at the European Court of Justice, as they always had the best team of lawyers and fought every step of the way.
A clearer approach to the EU Commission’s view on Access to Justice can be seen from the fact that;
- (a) not only was it criticised by the Aarhus Convention Compliance Committee for its procedures in relation to providing access for the EU citizens to challenge acts and omissions of the EU institutions in the European Court, but;
- (b) the European General Court found it in breach of Community law on this point. Despite this, it is now using our taxpayer’s money to appeal this decision to the higher European Court of Justice.
Going back to the situation of the upcoming Judicial Review on the 11th April, the reality of the above is that back in June 2010 when the National Renewable Energy Action Plan was notified to the Commission:
- Would one have got ‘standing’ to challenge the lack of public participation? Certainly the bar was set extremely high in relation to having to demonstrate ‘Substantial Interest’.
- Was there any hope at all in relation to achieving ‘not prohibitively expensive’? Not only had Ireland failed to comply with the public participation Directive 2003/35/EC, but as the National Renewable Energy Action Plan related to a plan or programme on the environment connected with energy, it was not addressed by this Directive. Instead it was connected to Directive 2001/42/EC on Strategic Environmental Assessment and Article 7 of the Convention. As such it would have to be enforced by the general provisions of Article 9(3) of the Convention, a Convention which Ireland refused to recognise.
The only certainty with the above was that there was a very good chance that one could end up with a very hefty bill to pay and nothing to show for it. Clearly therefore, the only opportunity that presented one with the opportunity to take a legal case was after the ratification of the Convention and it coming into effect in September 2012, at which point the Compliance Committee’s recommendations and findings had been published.
However, despite this ratification of the Convention in June 2012, the ‘access to justice’ provisions in Ireland are still in awful shape, reflecting the reality of a legal system which is a ‘locked Ferrari’.
In case C-240/09 Lesoochranárske zoskupenie, relating to a reference for a preliminary ruling from the Supreme Court of the Slovak Republic, a clear message was sent in March 2011 to the national courts regarding their duty to uphold the rule of EU environmental law. Although the European Court determined that Article 9(3) of the Aarhus Convention did not have direct effect in EU legal order, its ‘provisions are intended to ensure effective environmental protection’. In the words of the Court: “If the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it practically impossible or excessively difficult to exercise rights conferred by EU law”.
One could also point to Section 8 of the Environment (Miscellaneous Provisions) Act of August 2011:
- “Judicial notice shall be taken of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998”.
The reality is completely different despite the clear direction given above since late 2011. When litigants have actually turned up at the Irish High Court looking for cost arrangements to limit their financial exposure in relation to ‘not prohibitively expensive’, they have been shown the door. In my case when seeking leave as a lay litigant in November 2012, Justice Peart responded in relation to the requirement of the Aarhus Convention and ‘not prohibitively expensive’, that this would be dealt with in January 2013 when the case reconvened, as the European Court’s decision on the Edward’s case was imminent.
This situation requires some explaining in that in November 2010; the Aarhus Convention Compliance Committee found that the cost of access to justice provisions in the UK did not meet the requirements of ‘not prohibitively expensive’ and the UK is now subject to compliance mechanism by UNECE in this regard. This was followed in April 2011 by the European Commission announced that it was referring the UK Government to the European Court of Justice for failing to rectify provisions standing in the way of access to environmental justice in UK law. As a result legal reform is occurring in the UK, although the pace of reform is still slow.
As part of this reform, a test case in relation to ‘not prohibitively expensive’, called Edwards v Environment Agency, was referred by the UK Supreme Court to the European Court for a preliminary ruling on the concept of ‘prohibitively expensive’. The ‘Edwards’ case is a ‘forerunner’ of a more general case that the European Commission is bringing against the UK for failing to ensure costs are not ‘prohibitively expensive’.
When the Edwards case was heard in September 2012 in the European Court in Luxemburg, the Commission intervened in support of the Appellant. Denmark, Greece and Ireland intervened in support of the United Kingdom. In essence, Irish taxpayer’s money was used to fund legal submissions, both written and oral, which had as their aim, the denial of those taxpayers’ legal rights.
While the Advocate General Kokott’s opinion is now published on the case, the actual judgement will not be issued until the morning of the 11th April, the same day as the Judicial Review takes place in the Irish High Court. However, the Advocate General’s opinion does provide some indication of the resulting judgement; see for example points below which she made:
- Recognition of the public interest in environmental protection is especially important since there may be many cases where the legally protected interests of particular individuals are not affected or are affected only peripherally. However, the environment cannot defend itself before a court, but needs to be represented, for example by active citizens or non-governmental organisations.
- It would not be compatible with wide access to justice if the considerable risks in terms of cost are, as a rule, liable to prevent proceedings.
- In examining whether costs of proceedings are prohibitive, account must be taken of the objective and subjective circumstances of the case, with the aim of enabling wide access to justice. The insufficient financial capacity of the claimant may not constitute an obstacle to proceedings. It is necessary always, hence including when determining the costs which can be expected of claimants having capacity to pay, to take due account of the public interest in environmental protection in the case at issue.
Coming back to the reality of the situation, I’ve been given no direction as to what arrangements will be made in relation to ‘not prohibitively expensive’ other that in their action against me the in relation to seeking ‘undue delay’, the State Solicitor is actively seeking their costs and expenses to be awarded against me. So much for respecting the principle of the Convention they ratified and in particular Article 9(5) which states:
- “In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice”.
Finally in relation to access to justice, the issue of ‘not prohibitively expensive’ is not the only major failure with the Irish legal system. The Convention defines the citizen’s right to challenge the substantive and procedural legality of any decision, act or omission. However, as Professor Aine Ryall of UCC in her 2012 report on access to justice in Ireland for the EU Commission stated:
- The substance (or merits) of a planning or environmental decision may only be challenged indirectly in judicial review proceedings on the basis that the decision in question is “unreasonable” or “irrational”. “Unreasonable” or “irrational” in this context has been interpreted narrowly by the courts. In order to succeed, the applicant must prove that the decision-maker had no relevant material before it to support its decision or, as one Supreme Court judge famously expressed the test for judicial intervention, whether the contested decision “is fundamentally at variance with reason and common sense”.
On this basis, the Irish courts have tended to defer to the technical expertise of decision-makers such as planning authorities, An Bord Pleanála and the Environmental Protection Agency. Little wonder, that on the Corrib pipeline decision, the developers carried the cost of the €500 million tunnel rather than go to Court with a valid technical argument, which wouldn’t have received a fair hearing.
In other jurisdictions, while the judiciary may not draw such hefty salaries as in Ireland, they are trained in the subject matter of environmental law and the ‘substantive’ issues, such as noise impacts, can be raised in legal proceedings without as in Ireland, the judge solely devolving to the evidence of the regulator.
Fortunately with the upcoming Judicial Review on the renewable energy programme, the evidence on which the case is built relate to failures to complete defined legal procedures on public participation, for which there are findings and recommendations from the UNECE Compliance Committee. If the issue had been one of the ‘substantive’ issues of the National Renewable Energy Action Plan, rather than the ‘procedural’ failings, one wouldn’t have a prayer with regard to the current Irish jurisprudence in the area of environmental law.
Not only has seven months of working in the Ukraine before the Orange Revolution in 2004, plus extensive work experience in other places which would not be exactly renown for the behaviour of those in power, attuned me to what those in Western Democracies refer to as somewhat oppressive regimes. However, is there a lot of difference to the Western World? For most people not really, after all here in Ireland and many Western States one can talk about it, read about it, watch it, write about it, even campaign about it, but in reality the decisions are taken behind closed doors without any involvement of the citizen. You have only an appearance of being involved in the decision making, because you are discussing it. There is actually no structure to the decision making and the current decision makers are making very sure you don’t have a ‘look in’.
In a totalitarian state, you just don’t do so much discussing, but for the overwhelming majority life just goes on as usual, same as in the Western World. Then there are those, who are of the somewhat more ‘unreasonable’ disposition, who have other ideas and potentially the means to articulate and progress them. So they are quickly isolated and repressed by the regime, but the regime itself does not ‘take it out’ on the overwhelming majority of the population – it doesn’t have to.
- In simple terms, democracy means that the people decide. Political scientists describe our system of voting every few years but otherwise leaving everything up to government as weak democracy. In weak democracy, citizens have no role, no real part in decision-making between elections.
Ireland is a dangerously weak democracy, where power is centralised to the few who sit around the cabinet table and an unaccountable administration dances to their agenda. Any notion that the Irish State exists to serve the welfare of its citizens is laughable. This degree of significant political instability is leading to not only dysfunctional governance, but a massive loss in investment in the country. It is not unsurprising that Ireland has always been associated with a ‘brain drain’; the current flight of the youth of the country being just part of a long standing tradition. The establishment (elite) rules; the youth know that and that there are better opportunities to progress elsewhere, where a system of greater equality and opportunity prevails.
History repeats itself; in 1945 George Orwell published ‘Animal farm’ where the pigs decided everything and the animals had to toil building windmills. So what has changed? The ideology may well be ‘Green’ not red; you may not have to do physical labour building windmills, but you do have to fund them out of your disposal income through increased compulsory charges on your electricity bill. As regards environmental protection, any benefits associated with this renewable energy programme are completely derisible. It may be ‘Green’, but the reality is the Green Moverment is a threat to democracy.
Simply put, the manmade contribution to on-going global warming is not a planetary emergency. However, the bureaucracy has to be kept turning, of which rule number one has always been:
- “Maintain the problem at all costs! The problem is the basis of power, perks, privileges, and security”.
To this of course must be added that wealth and resources must be diverted to vested support groups and away from those, which are considered political opponents. So the pigs decide; 40% of Ireland’s electricity is to be generated by wind mills controlled by their programme, already their semi-state companies have drawn down €1 billion in loans from the European Investment Bank for infrastructure we don’t need and which will have to be paid for by us through increased electricity charges. Depending on which side of the Atlantic you are on, it is a ‘pork barrel’ or ‘jobs for the boys’.
As with the ‘Borg’ in ‘Star Trek’; ‘Resistance is Futile’. Ordinary people in Ireland, in the midlands in particular where several thousand 185 m high turbines are to be built, are finding that a massive wind energy project is going on around them, for which they have never been informed about nor provided with an opportunity to participate in. This is not in the least bit unsurprising given that neither at National nor County level were the legally required Strategic Environmental Assessments and associated public participations completed for this wind energy programme. Furthermore, the developers simply approached the farmers and signed them up with a confidentiality clause, nobody inform the adjacent neighbours.
The planning approvals will now go straight to An Bord Pleanala as part of the Strategic Environmental Infrastructure Act. This planning authority has never adhered to technical or legal standards and is furthermore characterised by the political decisions of its board, which is composed of political appointees. If you don’t agree with the board’s ‘deliberations’, then you can bring your noise experts, etc, into the High Court – I wish you luck!
Bottom line is; the pigs have decided and the projects are their ‘done deal’
None of this has happened by accident, but rather by apathy of a population, which has ceded the decision making around it to others, who are completely unaccountable. Indeed, the civil servants don’t bat an eyelid in spending considerable amounts of the citizen’s tax money in legal cases to defend their maladministration and prevent the citizen from obtaining their rights, such as with regard to access to simple environmental information in relation to emissions.
Indeed, in relation to my case on the 11th April, it would appear that the State has no intention of respecting a citizen’s right to challenge blatant acts and omissions of their administrative colleagues, in relation to the citizen’s rights to be informed and to participate in the development of this renewable energy programme. Their office does not serve to ensure proper legal standards in administration, but to protect the power base of that administration and its ‘modus operandi’ of ignoring the legal framework, which applies to it. For that they are paid a health sum of money by you the citizen. There is no doubt that within the metaphor of ‘Animal Farm’, they are the guard dogs of Napoleon the ‘pig’.
In the spring of 2012 I was working in Belgrade and was quite intrigued by one of the posters in a quite striking exhibition on the main street; it said:
- “Dissent protects democracy; Secrecy promotes tyranny”.
What an appropriate phrase I thought and sought its origin. It turned out to be part of a quote from Edward Abbey, a rather colourful US author and environmental campaigner. The final part of the quotation is to be found below, at the time I thought it was hyperbole; though one’s viewpoints often can and do change with time:
- “A patriot must always be ready to defend his country against his government”.
Pat Swords BE CEng FIChemE CEnv MIEMA
 Ref. Una Dixon 1st Affidavit 29th Jan 2013
 See further details: The Committee considers that the provision of “a period of approximately six weeks for the public to inspect the documents and prepare itself for the public inquiry” in order to “to exercise its rights under article 6, paragraph 6”, and provision of “45 days for public participation and for the public to submit comments, information, analyses or opinions relevant to the proposed activity” under article 6, paragraph 7, “in this case meet
the requirements of these provisions in connection with article 6, paragraph 3, of the
Convention”: Section 89(c): http://www.unece.org/fileadmin/DAM/env/pp/mop4/Documents/ece_mp.pp_2011_11_eng.pdf
 Affidavit of Una Dioxin Department of Communications, Energy and Natural Resources 7th March 2013.
 See Table 1 for a cost of €37 per tonne as opposed to that for €120 per tonne for wind: http://www.ecofys.com/files/files/serpec_wastesector_report.pdf and http://www.eirgrid.com/media/2004%20wind%20impact%20report%20(for%20updated%202007%20report,%20see%20above).pdf
 Communication ACCC/C/2008/32: http://www.unece.org/fileadmin/DAM/env/pp/compliance/CC-32/ece.mp.pp.c.1.2011.4.Add.1.e.pdf
 See page 19 of EU’s 2008 First Implementation Report on Aarhus Convention, where it stated that Article 7 of the Convention on plans and programmes related to the environment would be implemented by Directive 2001/42/EC on Strategic Environmental Assessment: http://www.unece.org/fileadmin/DAM/env/documents/2008/pp/mop3/ece_mp_pp_ir_2008_EC_e.pdf
 http://www.pila.ie/bulletin/2012/october-2012/3-october-2012/irish-high-court-refuses-application-that-judicial-review-applicant-not-be-exposed-to-prohibitively-high-costs/ and http://www.pila.ie/bulletin/2012/november-2012/28-november-2012/irish-high-court-refuses-to-make-a-protective-costs-order-in-an-environmental-case/
 If global temperatures are rising, which they aren’t, then the benefits can only be quantified as about €5 million per annum, which is a sad reflection of €30 billion in capital expenditure, for which the bulk of the infrastructure will be life expired in 15 years: Bishop Hill
 See for instance Chapters 8 and 9: http://www.iae.ie/site_media/pressroom/documents/2011/Apr/06/IAE_Energy_Report_Web2_05.04.2011.pdf