22nd September

Ireland referred back to Court over incomplete environmental impact assessment laws

Broadhaven Bay. Failure to apply the Aarhus Convention during the Corrib gas pipeline projected prevented objectors from their rights to take a judicial review of the planning or EPA decisions. Photo Shay Fennelly

Broadhaven Bay. Failure to apply the Aarhus Convention during the Corrib gas pipeline projected prevented objectors from their rights to take a judicial review of the planning or EPA decisions. Photo Shay Fennelly

While Ireland has finally ratified the Aarhus Convention giving Irish citizens the same environmental rights as the rest of Europe, the European Commission referred Ireland back to the Court of Justice on June 21 to bring its national legislation on assessing the effects of projects on the environment into line with EU rules.

The Commission has requested the ECJ to impose a lump sum fine of over €1.8m and a daily penalty payment of over €19,000 for each day until the infringement ends.

Despite an earlier referral to the Court and a subsequent ruling in March 2011, Ireland has not yet ensured the full transposition of the Environmental Impact Assessment into national law,’ an EC statement reads.

Public participation
The Aarhus Convention sets down basic rules to promote citizen involvement in environmental matters and to improve enforcement of environmental law. Its provisions are broken into three pillars: Access to Information; Public Participation in Environmental Decision-making and Access to Justice.

The convention has been implemented in the EU by two Directives: 2003/4/EC on Access to Information on the Environment, and Directive 2003/35/EC on Public Participation in Environmental Decision-Making and Access to Justice.

Assessment before approval
The aim of the EIA Directive is to ensure that projects likely to have significant environmental impact are adequately identified and assessed before approval. Developers can then adjust projects to minimise negative impacts before they actually occur, or the competent authorities can incorporate mitigation measures into the project approval.

A fundamental objective of the EIA is to ensure that projects likely by virtue of their nature, size or location to have significant effects on the environment, are subject to an impact assessment.

Concerns remain regarding complete transposition of Article 3 of the Directive, avoiding any negative consequences of split decision-making between Irish planning authorities and the Irish Environment Protection Agency, and the exclusion of demolition works,’ it adds.

Department response
In a statement to Inshore Ireland the Department of the Environment said the Attorney General confirms all provisions are now in place:

There are no fines associated with the ratification of the Aarhus Convention. The ECJ case you refer to (regarding EIAs) is a separate issue, and ratification of the convention is not affected by the case.

In March 2011, the Court of Justice of the European Union found against Ireland in Case C-50/09 to the effect that Ireland had not fully or correctly transposed elements of the EIA Directive, as amended. 

Furthermore, acknowledging the wider applicability of Article 3 to other consent systems provided for in Irish law, the Department, in consultation with other Departments, is currently in the process of engaging on these other legislative consent processes outside the planning system to ensure full and correct transposition of Article 3 in those codes. The Department is working closely with the Commission to close out this case, and avoid the imposition of any fines.

Comment challenged
Pat Swords, a chemical engineer who won a case against the EU for failure to properly implement its renewable energy programme in accordance with Aarhus Convention, challenges the Department’s position:

“The Convention requires that planning should be conducted in a transparent and fair manner, with accessibility to the reasons and considerations for any decision. Failure by Ireland to transpose Article 3 of the 1985 EIA Directive is a failure in this regard.

“Transposition requires the planning authority (county council or An Bord Pleanala to conduct its ‘own’ systematic assessment of the environmental aspects to derive its decision – an assessment that has to be made public on request, such that the citizen has the information to evaluate the basis for the decision and if deemed necessary to challenge it.

“If progress is to be made such that the Convention becomes properly accessible it is going to take Irish citizens to challenge public authorities, for example, requesting information, engaging in public participation and accessing their rights through the courts.

“The Convention is there to be used to ensure proper accountability; we can continue to have decisions that affect us made by others, or we can engage in the process. Ultimately the choice is ours,” he told Inshore Ireland.

Environmental milestone
Michael Ewing of the Environment Pillar said that ratification was an important milestone but these rights were only meaningful if they are exercised.

“Raising public awareness of the Convention and training personnel in public authorities is therefore crucial for its effective implementation,” he said.

 “The Convention also requires proactive provision of environmental information. The EPA is making great strides to provide interactive online mapping so that you can see mostly historical information on what’s going on and the state of the environment in your locality. 

“At the same time, local authorities that have detailed and up-to-date information on the quality of drinking water, for example, do not in many cases share that important information with the consumer, except to give boil water notices when things get really bad,” he told Inshore Ireland.

Although Ireland signed up to the Convention in 1998 it has taken until this year for the government to ratify it. When 15 months have elapsed from the date of ratification (Sept 29 2013) any person may go to the Compliance Committee of the Convention to seek a remedy if the government is not fulfilling its legal obligations.

(Further information on the Aarhus Convention go to: www.ec.europa.eu/environment/aarhus/)

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