The Construction Industry Federation says it is not getting ready to challenge NAMA (more particularly the legislation setting up NAMA).

We have only to go back to 2005 to find out why it is not gearing up.

In Construction Industry Federation v Dublin City Council [2005], the Supreme Court denied locus standi to the CIF because its members were easily able, individually, to take the litigation pursued by the CIF against Dublin City Council.

The Court said;

In the present case, the Appellant claims to have a sufficient interest on the basis that the proposed scheme affects all or almost all of its members in the functional area of the Respondent, and therefore the Appellant has a common interest with its members. However, it appears to me that to allow the Appellant to argue this point without relating it to any particular application and without showing any damage to the Appellant itself, means that the Court is being asked to deal with a hypothetical situation, which is always undesirable.”

So, too, now, CIF membes are easily able to take action for themselves.

The challenge, (there will be a challenge) will come from the members or some of them.

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

UPDATE (7/7/2008)

1. Three Motions are (or were) before the High Court. One, that of the Irish Human Rights Commission, was promptly decided by the judge in favour of the IHRC. The IHRC is now a “party” to the proceedings as “amicus curiae”.

2. The State challenged the locus standi of the Plaintiff to brings its proceedings. The IHRC has supported the right of the Plaintiff to bring its proceedings. The Defendants are denying that right but have made concessions in the hearings.

3. The State claims that the Plaintiff should furnish security for costs.

4. The Plaintiff’s current application is for a reference by the High Court to the European Court of Justice for a ruling from the ECJ on the validity of Directive 2006/24/EC.

5. The hearing of the Motions has continued before Judge McKechnie in the High Court and is now adjourned to 11th July 2008 at 10.30 am.

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.