A recent ruling of the European Court of Justice (ECJ) has been widely welcomed by environmental activists and campaigners in Ireland. This ruling reverses a decision of the Irish Supreme Court and should provide fresh impetus for the newly elected Irish government to reconsider how Ireland assesses the impact of major projects or developments on the environment.
EU Directive
Directive 85/337/EEC, which is commonly known as the Environmental Impact Assessment Directive (the "Directive"), requires member states to establish a procedure whereby the effects of major projects will be assessed prior to commencement in order to mitigate any consequential and harmful environmental effects.
Ruling
The ECJ found that Ireland had failed to sufficiently transpose the Directive into Irish law. Furthermore, Ireland's implementation of the Directive through the Irish Planning Acts did not attain the result pursued by the Directive.
Whilst this was both a complex case and ruling, the notable parts of the judgment are as follows:
- Ireland failed to properly transpose parts of the Directive; and
- Ireland failed to ensure that the Directive was completely fulfilled when divided among two or more government agencies with decision making powers.
1. Failure to properly implement the Directive
The Directive requires obligatory assessments by competent authorities of the environmental impact of certain projects given their "nature, size or location" prior to granting permission for such developments. These projects would include, for example, the construction of rail networks, airports, motorways and other projects considered as having significant effects on the environment. A project is said to have a significant effect if there is a risk it will cause "a substantial or irreversible change".
Environmental Impact Assessments should identify, describe and assess the direct and indirect effects of a project on:
- human beings, fauna and flora;
- soil, water, air, climate and the landscape;
- material assets and the cultural heritage; and
- any interaction between the above subjects.
The ECJ ruled that what constitutes an Environmental Impact Assessment is of pivotal importance and therefore must be transposed explicitly. Furthermore, the ECJ held that the Irish competent authority must undertake both an investigation and an analysis to reach as complete an assessment as possible of the direct and indirect environmental effects of the project.
Although the Irish Planning Acts do require the planning authority to have regard to Environmental Impact Statements when submitted as part of the planning process, it did not impose further obligations on the authority other than establishing the completeness of that information. The planning authority was not required to conduct an assessment to establish the environmental impact on the relevant subjects at (a) to (d) above.
The ECJ did acknowledge that there was no requirement on member states to adopt the exact wording of a directive. However, a directive must be implemented with the specificity, precision and clarity required to provide legal certainty. The ECJ was of the opinion that Ireland's implementation of the Directive was not transparent and did not allow an individual to ascertain the full extent of their rights.
2. Failure to attain the results pursued by the Directive.
It was submitted that Ireland had failed to completely fulfil the objective of the Directive where several authorities are involved in the decision-making process.
The decision making process for most projects in Ireland is typically divided between the planning authority and the Environmental Protection Agency ("EPA"). There is no obligation on the authorities to co-ordinate their activities, a position the ECJ held was contrary to the Directive. The ECJ found that the Irish system failed to take into account the concept of the "environment" as a whole in the decision-making process.
For example, it was submitted that the EPA did not require an Environmental Impact Assessment on an application for a waste pollution licence. Also, it appeared that the EPA was entitled to make a decision on the pollution aspects of a project before an application was made to the planning authority for permission to build.
The fact that Ireland has adopted a two bodied authority was not problematic. It was the lack of interaction between the bodies which gave rise to the issues and the fact that the Irish system did not oblige the planning authorities and the EPA to co-ordinate their activities to ensure an integrated assessment.
Conclusion
ECJ's ruling of 3 March 2011 ensures that the spotlight will be firmly reaffixed on the manner in which competent authorities in Ireland now assess the environmental impact of major projects.
The judgment incentivises both the EPA and planning authorities to co-ordinate their split decision making process and open better lines of communication and consultation.
In light of the ECJ's findings, Ireland was fixed with the costs of the case. Going forward, the new Irish government will need to act quickly and effectively to address these findings to ensure that our public finances are not subjected to further needless costs and fines.
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