Environmental Law

Can a whale hear? It must if it sings songs. Can it read? Unlikely. Can it read this map HERE? Unlikely; this writer cannot read it. It is from the website of the Department of Communications, Energy & Natural Resources.

A friend tells this writer that the Minister has authorized a seismic survey off the west coast of Ireland. The survey involves months of work. The work includes the creation of loud noises in pulses every fifteen seconds. This will go on for the duration of the survey.

Can an Irish whale hear?

Unlikely.

There is, in law, no such thing as a legal dead letter. That is, it is not open to the courts to refuse to implement a statutory provision, purely on the ground that it has fallen into disuse or has been forgotten.

There are, it seems, legal chicanes; if a law fails to get mentioned (or is mentioned) it falls. It is no longer law.

What of the Public Health (Ireland) Act of 1878 ((41 & 42 Vict.) c. 52)? It was recited in the First Schedule of the Statute Law Revision Act 2007 and was, consequently, retained as law in Ireland.

Previously. Section 54 of the Public Health (Ireland) Act 1878 was repealed by Section 6 of the Waste Management Act 1996 and the Fifth Schedule of that Act.

Before that, Section 54 of the Public Health (Ireland) Act 1878 was specifically brought into force in the County Health District of Dublin by the provisions of S.I. No. 310/1970.

Consequently, Section 54 of the Public Health (Ireland) Act 1878 appears to be still in force in [South Dublin County], [Fingal County] and [Rathdown County]. (County Dublin, excluding the City of Dublin).

The Public Health (Ireland) Act 1878 was the enabling provision for the Dublin Corporation Bye Laws of June1899 referred to HERE.

What happened, then, to those Bye Laws on the repeal of Section 54 of the Public Health (Ireland) Act 1878 in 1996?

They were, in the absence of any saving provision, implicitly revoked.

What alternative provision did Dublin City Council introduce? It had that power under Section 37 of the Local Government Act 1994.

We referred to a Dublin Corporation Bye Law of 1899 requiring the clearing of snow from the footpaths of the City of Dublin.

Here is what Section 54 of the Public Health (Ireland) Act 1878 says on the subject:

“54. [Where the [district council] do not themselves undertake or contract for The cleansing of footways and pavements adjoining any premises, the removal of house refuse from any premises, the cleansing of earthclosets, privies, ashpits, and cesspools belonging to any premises, [A district council] may also, and when required by order of the Local Government Board shall, make byelaws for the prevention of nuisances arising from snow, filth, dust, ashes, and rubbish, and for the regulation of the keeping of animals on any premises, or for the prevention of such keeping, so as to be [prejudicial to health].”

This legislation clearly states that the snow is a nuisance. It is a public nuisance if it is on the public pavement. If it is not cleared off by the adjoining occupier, it is being maintained by him/her. Consequently the occupier is answerable for injury sustained by passersby who fall on the snow.

Our offices are, almost, in Lower Bridge Street and I travel down Clanbrassil Street daily to get to them. It is an ironic occasion every morning for me to join the single lane of traffic traveling north on Patrick Street in front of St. Patrick’s cathedral. Until recently there were two lanes for the north-bound traffic; now, one is a dedicated bus lane.

In 1953, Dublin Corporation determined to ensure that traffic would not be hindered by narrow streets like Clanbrassil Street and Patrick Street. They should be widened, it felt. The Corporation persisted in this feeling from 1953 to 1989 when it finally built a “dual-carriageway” along [some of] Clanbrassil St. and on into Patrick Street.

The fact that the planned Compulsory Purchase Order, to implement this, undermined the values of the properties along the west side of Clanbrassil Street and Patrick Street, from 1953 onwards, is neither here nor there.

What is of moment is this: we no longer care about traffic, that is, the private motor car. We have changed our viewpoint. We cheerfully squeeze it daily into a narrow traffic lane in Patrick Street. That’s not the only change. Dublin Corporation is now Dublin City Council: it hasn’t gone away and it is still an institution of vision.

Currently, it has a vision for a waste incinerator in Ringsend. Perhaps we need such a thing. But will we always? Will we always think it a good thing to burn rubbish? To burn it within the city?

The answer is yes, because the operator of the proposed incinerator will compel us to do it, under the terms of a contract signed by it and Dublin City Council.

Peculiarly, the property rights in rubbish may be more easily defended than the property rights in buildings.

Section 261 of the Planning and Development Act 2000 made special provision for the control of quarries. A quarry is as defined in the Mines and Quarries Act 1965.

On the coming into force of Section 261 (on 28th April 2004) a quarry to which Section 261 applied (most quarries), had to be registered with the local planning authority within one year of 28th April 2004. Failure to register rendered the quarry an unauthorised development. “Registration�? refers to the supply of the required information, not the entry on the register. (S. 261 (10) (a)).

The section set out the information which had to be supplied on registration, with provision for the planning authority to make further enquiries. Failure to provide the further requested information also will render the quarry an unauthorised development.

Under S. 261 (12) provision was made as follows:

(12) The Minister may issue guidelines to planning authorities regarding the performance of their functions under this section and a planning authority shall have regard to any such guidelines.�?

The Minister has issued guidelines to the planning authorities on quarries. The guidelines emphasise that “registration�? does not authorise an unauthorised development.

Under S. 261 (7) provision was made, in respect of quarries the “extracted area�? of which was greater than 5 hectares; or was on a European site or other protected site; and that commenced operation before 1st October 1964; and would be likely to have significant effects on the environment, for the planning authority to require, within one year of registration, that the owner apply for a planning permission and to submit an environmental impact statement.

The effect of Section 261 of the Planning and Development Act 2000 is to establish a baseline for the operations of registered quarries. (Assuming the information furnished with the “registration�? is accurate). The public may compare the current operation of any quarry with the details in the register (which details relate to a period in 2004) and they or the planning authority may take action if the comparison shows intensification of use.

Massachusetts v EPA

The USA is an amazing place (of extremes). They seem to have an Environmental Protection Agency (“EPA”) like ours unless I am mistaken.

Under the US Clean Air Act, the administrator of the Environmental Protection Agency is authorized to set emission standards for

any air pollutant” from motor vehicles or motor vehicle engines “which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.

The EPA was challenged by the Plaintiffs because it disputed whether it had power to set such emission standards.

The parties were:

Petitioners: the states of California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington, the cities of New York, Baltimore and Washington, D.C., the territory of American Samoa, and the organizations Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U.S. Public Interest Research Group.

Respondents: the Environmental Protection Agency, the Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, Utility Air Regulatory Group, and the states of Michigan, Alaska, Idaho, Kansas, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah.

The case turned on questions, essentially of power (“locus standi�? and statutory interpretation), including

1. The standing of the plaintiffs to bring the case to court.

2. Whether the EPA Administrator had authority to regulate carbon dioxide and other air pollutants associated with climate change under the Clean Air Act.

3. Whether the EPA Administrator could decline to issue emission standards for motor vehicles based on policy considerations.

The majority opinion of the US Supreme Court found for the petitioners and recognized they had standing. It found the Clean Air Act did give the EPA the authority to regulate motor vehicle emissions of greenhouse gases. On the third question the Court referred the issue back to the EPA for valid justification, finding the EPA’s current view lacking justification.

In typical form SCALIA J dissented. In his view, regardless of the importance of the issue, the Court should not attempt to second guess the view of the executive agency (EPA) in light of its experience and judgment.

This has something familiar about it.

Meanwhile, for an opinion piece on all this look HERE.

For a sombre review of what is at stake see HERE.

Locus Standi (“standing�?) expresses the obligation on a litigant to show (s)he has an interest in the subject matter of the dispute in legal proceedings.

The rules as to standing vary from jurisdiction to jurisdiction and from issue to issue. The rules may be defined by statute or may be found in the case law.

The parties to a dispute arising from a road traffic accident or a contract will normally have no difficulty showing standing.

The difficulties arise in areas such as planning law, environmental law, or constitutional law.

In The State (Lynch) v Cooney [1982] IR 337 at page 369 Walsh J, stated in the Supreme Court:

The question of whether or not a person has sufficient interest must depend upon the circumstances of each particular case. In each case the question of sufficient interest is a mixed question of fact and law which must be decided upon legal principles but, it should be added, there is a greater importance to be attached to the facts because it is only by examination of the facts that the Court can come to a decision as to whether there is a sufficient interest in the matter to which the application relates.

In planning matters the leading case is Lancefort Ltd. v. An Bord Pleanala (No.2) [1999] 2 IR 270. There, the Supreme Court, following an examination of the merits of the applicant’s case against the respondent, declined to accord locus standi to the applicant.

In Ireland there is a broad approach to standing in constitutional law cases, exemplified in Horgan v An Taoiseach [2003] 2 ILRM 357, where the court described the Plaintiff’s case on standing thus;

At the outset, counsel on behalf of the plaintiff submits that the plaintiff have (sic) locus standi to seek the relief sought in these proceedings as a citizen of Ireland, relying on the approach adopted by the High Court and Supreme Court in Crotty v. An Taoiseach [1987] I.R. 713, McKenna v. An Taoiseach (No. 2) [1995] I.R. 10 and McGimpsey v. Ireland [1988] I.R. 567.

In Mulcreevy v the Minister for Environment, Heritage and Local Government and Dun Laoghaire-Rathdown County Council [2004] 1 IR 72, the Chief Justice said in the Supreme Court:

While the applicant accepts that he has no private interest in these proceedings, it is not suggested that he has brought them for any other reason than to ensure that the national monument is not damaged irreparably, as he claims it would be, by the local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses.

…I would, accordingly, agree with the conclusion of the learned trial judge that the applicant had locus standi to institute the present proceedings.

In Mulcreevy, the Defendants were constructing a motorway partially on the site of some archeological remains of importance. Effectively, the courts acknowledge that there will be no challenges to such threats to the fabric of Ireland’s history if the standing of public interest parties is not recognized and consequent protection to the historical residue is secured thereby. (The High Court declined to permit the application for judicial review on the grounds of delay; the Supreme Court reversed in circumstances where he applicant had shown a high probability of success if his application went ahead.)

O’Higgins C.J. said in Cahill v. Sutton [1980] I.R. 269 at p. 276:-.

This Court’s jurisdiction, and that of the High Court, to decide questions concerning the validity of laws passed by the Oireachtas is essential to the preservation and proper functioning of the Constitution itself. Without the exercise of such a jurisdiction, the checks and balances of the Constitution would cease to operate and those rights and liberties which are both the heritage and the mark of free men would be endangered. However, the jurisdiction should be exercised for the purpose for which it was conferred- in protection of the Constitution and of the rights and liberties thereby conferred. Where the person who questions the validity of a law can point to no right of his which has been broken, endangered or threatened by reason of the alleged invalidity, then, if nothing more can be advanced, the Courts should not entertain a question so raised. To do so would be to make of the Courts the happy hunting ground of the busybody and the crank. Worse still, it would result in a jurisdiction which ought to be prized as the citizen’s shield and protection becoming debased and devalued.

There are limits to the Irish broad approach to standing. In Incorporated Law Society of Ireland v Carroll [1995] 3 IR 145, the Plaintiff (a solicitors’ representative body) was denied standing in an application to restrain the Defendant from holding himself out as a solicitor.

In Construction Industry Federation v Dublin City Council [2005] 2 ILRM 256,
the Supreme Court refused locus standi to the applicant, remarking

Unlike many of the cases in which parties with no personal or direct interest have been granted locus standi there is no evidence before the Court that, in the absence of the purported challenge by the Appellant, there would have been no other challenger. Indeed the evidence appears to be to the contrary.

It is not clear that the true history of Irish land development has been written. Consider the contents of the 2006 Annual Report of An Bord Pleanala.

The report highlights the failures of local planning authorities to take into consideration very important planning aspects in granting permissions for development. The results include improper zoning; consequential flooding; unplanned town development; and water pollution.

If that is what we see now in 2007, what major failures lie in the past?

One failure is pointed to in the setting of penalties of up to €500,000 for local authorities (the very people granting the questionable planning permissions) that pollute water resources.

It now appears that everybody has known for years that the local authorities were (and are) the major polluters of Irish waters before, (or is that after?) farmers.

And what of personal living spaces? Well, they need revision.

What’s to be said? In the words of Alexander Chase:

The peak of tolerance is most readily achieved by those who are not burdened with convictions.

What is the difference between poisoning the populace with dirty water and poisoning the populace with dirty chocolate?

When you are exposed as a distributor of dirty water the Irish Government springs to your defence and points out the residual toilet uses of the dirty water (washing yourself, apparently).

When you are exposed as a distributor of dirty chocolate the local Government prosecutes you and the court fines you €1.48 million.

Fianna Fail, in concluding its “programme for government�?
with the Irish Green Party has, apparently, acceded to the “implementation�? of the Aarhus Convention.

Ireland is in fact a signatory to the Aarhus Convention, (but has not formally ratified it) . The European Union is also a signatory. Consequently, EU environmental law [e.g., Directive 2003/4/EC; Directive 2003/35/EC] is already driving the “implementation�? of the Convention. It was only a matter of time before Ireland had to “implement�? the Convention. Ireland has been a great procrastinator (HERE & HERE ) in the implementation of EU environmental law. (Twenty one years passed between the first EU waste Directive and the introduction of the Waste Management Act 1996).

On 11th June 2007, just three days prior to the conclusion of the “programme for government�?, the European Court of Justice found Ireland still in breach of Directive 79/923/EEC, intended to protect shellfish in coastal waters.

The Convention is valuable; as the wikipedia article, linked to above, says,

The Aarhus Convention grants the public rights regarding access to information, public participation and access to justice, in governmental decision-making processes on matters concerning the local, national and transboundary environment. It focuses on interactions between the public and public authorities.

It will be interesting to see if the commitment to implement the Convention will follow or depart from the current resolute approach of division of functions between planning control (and enforcement) and environmental protection (best seen HERE)

It will also be interesting to see how “access to justice�? in environmental cases will be squared with the judicial rush to close down the opportunity to challenge administrative acts by judicial review by requiring applicants to move “promptly�? for relief.

Current law in Ireland does not appear to conform to the aims of the Convention. At the very least Order 84 of the Rules of the Superior Courts will require amendment. Paragraph 21 (1) thereof reads:

21. (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.

The Green Party has a mountain to climb.