Environmental Law

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.

In Wicklow County Council v. Fenton & Ors [2002] IEHC 102 (31 July 2002) the High Court likened the owner of an illegal dump to a receiver of stolen property. Without a receiver there can be no profit in theft; without an illegal dump there can be no illegal dumping. The court accepted the principle advanced by the applicant Council that it did not have to prove negligence; that the state of mind of the Respondents was not required to be proved. The court endorsed the principle of “the polluter pays�?, a principle found in Council Recommendation 75/436Euratom and specifically incorporated in Section 5 of the Waste Management Act 1996.

“the polluter pays principle” means the principle set out in Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March, 1975 1 regarding cost allocation and action by public authorities on environmental matters;

Under Section 26 of the Waste Management Act 1996 the Environmental Protection Agency is obliged to incorporate the “polluter pays�? principle into its national hazardous waste management plan.

The court found that the Respondents had been negligent on the facts and made orders for the remediation of the lands on which the illegal dump was found.

Consequently, liability under the Waste Management Act 1996 can be established simply by showing that there has been dumping on lands and that there is no authority for such dumping. The liability attaches to the occupier of the land; there is no need to show that the dumping took place during the period of occupation by that occupier.

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.