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Aarhus Convention & Irish Environmental Law:

Key Points & Potential Impact

Áine Ryall Twitter: @EnvJusticeUCC

Dublin, 4 February 2014

Aarhus Convention

Aarhus Convention

↓

EU environmental law

↓

Set of international & EU law standards

Different sources of legal authority → complex intersections

AarhusConventio

n

National LawEU Law

Intersections in enforcement context

Aarhus Convention Compliance Committee

(ACCC)

Public authorities & national courts

European Commission &Court of Justice

(CJEU)

Irish environmental law pre-Aarhus

Significant rights of access to information

Extensive provision for public participation

Right of appeal to An Bord Pleanála

Judicial review & statutory enforcement provisions

So what does Aarhus add?

Information → Dir 2003/4/EC

Participation→ Dir 2003/35/EC (PP Dir)

Access to justice → Dir 2011/92/EU (EIA Dir)

Dir 2010/75/EU (IED) (ex IPPC)

A new general EU legislative measure on access to environmental justice? Aarhus Art 9(3)

Uncharted waters ...

Impact of Aarhus & EU related measures on national law

Significant uncertainty

Difficult to advise with confidence

Aarhus Convention:Implementation Guide

2nd edition, 2013

http://www.unece.org/index.php?id=32764

Aarhus - Role of the Courts

Courts in the spotlight - at EU & national level

Gradual evolution of basic principles & emerging trends in the case law

Aarhus Convention & emerging principles in CJEU case law

An integral part of EU legal orderCase C-240/09 ‘LZ’ – ‘Slovak Brown Bear case’

Impact on interpretation of EU environmental directivesCase C-416/10 Križan

Aarhus Convention & emerging principles in CJEU case law

Aarhus-inspired Directives interpreted in light of objectives and scheme of Aarhus Convention

Strong purposive approach – also pragmatic

Keen to ensure environmental rights are effective in practice – Case C-416/10 Križan

Public interest in environmental protection

Aarhus Convention & emerging principles in CJEU case law

Aarhus Article 9(4) – an obligation of costs protection – a ‘ban’ on prohibitive costs

Public interest in protection of the environment

Aarhus Convention & emerging principles in CJEU case law

Case C-260/11 Edwards, 11 April 2013

Case C-530/11 Commission v UK - Opinion of Advocate General Kokott, 12

September 2013- Judgment due 13 February 2014

Aarhus Convention Compliance Committee (ACCC) - Geneva

- Not a “court”

- Operates in very transparent way

- Makes findings & recommendations

- Impact of its findings & recommendations?

Aarhus Convention Compliance Committee (ACCC)

Public may bring “communications” (complaints) concerning Ireland to ACCC from 18 September 2013

Ireland – Access to Justice - Costs

Planning and Development Act, section 50B

Environment (Miscellaneous Provisions) Act 2011, Part 2

Special costs rules

Ireland – Access to Justice - Costs

Holly Hunter v Nurendale Ltd t/a Panda Waste [2013] IEHC 430 Hedigan J

Holly Hunter v EPA [2013] IEHC 591 Hedigan J

Ireland – Access to Justice - Costs

Tesco Ireland Ltd v Cork County Council, Ireland and the Attorney General (No 2) [2013] IEHC 580 Peart J

PDA s50B(2A)

The successful applicant was awarded their costs – without any deduction or discount

Challenges

Incredibly rapid pace of development →

Member States in constant state of “catch up”

Lack of legal certainty & predictability

National legal systems slow to respond to change

Challenges

Economic context → resources to support Aarhus rights and enforcement activity are scarce

Future Directions

Evolving case law from ACCC, CJEU and national courts will (hopefully) bring greater legal certainty & predictability

Future Directions

Political will to deliver on environmental rights and provide the necessary resources to underpin Aarhus implementation?

Future Directions

Aarhus rights must be championed at national level

Awareness raising & cultural change to integrate Aarhus successfully into the national system