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TOM FLYNN BARRISTER–AT-LAW

Reform of Environmental Law in Ireland - Some Key Issues

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Introduction

An exploration of a number of key issues in context of an agenda reform of Irish environmental law

‘environmental law’ – widely defined as encompassing planning law

Not a comprehensive of systematic analysis but rather a focus on a number of key issues in the context of agenda for reform of environmental law in Ireland

Is there an appetite for reform of Irish environmental law ?

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The key issues

The urgent requirement for a consolidation of Irish Environmental Legislation

The need for reform of the Environmental Impact Assessment Process

The need for a re-evaluation of the relationship between land-use planning and environmental controls

The inadequacy of the current regulatory framework

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Consolidation of Irish environmental legislation

A fundamental problem – statute book is a mess ! Key Problem – excessive use of poorly drafted

secondary legislation to transpose EU law coupled with amendment of primary legislation by secondary legislation

Result – a fragmented & piecemeal legislative framework – presents a barrier to individual citizens

Problem recognised – EPA Agency Review Report some attempts to address problem – Law Reform Commission restatement – and ‘unofficial’ consolidations

Solution – a programme of consolidation of environmental legislation

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Need for reform of EIA Process

EIA - as currently structured a ‘developer led’ process perceived as lacking in independence

Case C-50/09 – CJEU held Ireland non-compliant with EIA Directive as the competent authority itself must conduct the EIA

Amending legislation introduced to clarify but unlikely to result in significant change to practice

A more radical proposal – involve independent authority in EIA process to prepare EIS

Would require significant changes in existing practice & law”

Inject much greater independence into entire EIA process

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Land-use planning and environmental controls

Current system – land-use planning and environmental controls essentially operate separately and in parallel

A dual consent procedure EPA – IPPC/Waste Licensing – ABP/LA - Planning control

Has proved problematic in the past – Martin v ABP Case C -50/09 – highlights potential problemsCurrent system does not allow for a proper

integrated assessment Case for an integrated development consent

process?

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A revised regulatory framework

Current regulatory framework emerged in an ‘ad hoc’ manner not from a systematic considered analysis of what is required

Result is a fragmented regulatory and administrative framework of environmental governance.

Is fit for purpose ? Many anomalies exist Multiple bodies with significant

overlapping/mixed functions and competences What is required – an accountable, fair,

accessible, and efficient regulatory framework

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A revised regulatory framework

Need a separation of the decision and appeals process – establish quasi-judicial independent appeals tribunal with mixed legal/expert competence

Large scale infrastructural projects to be determined by as part of a unified process and ideally a single body – appeal to tribunal

Enforcement – expand remit of OEE to planning

Establish an environmental court ? – no just divisions/lists within current structure

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CONCLUSIONS

Key issues highlighted if addressed would significantly reform Irish environmental law

Not excluding need for reform in other areas of Irish environmental law such as access to justice, environmental information

Not my concluded view – designed to provoke debate

Key question - Is there the social and political appetite for reform ?

Need is for coherent reform