Ireland is urgent need of a dedicated environment court with easy access at low cost with a wide variety of remedies and sanctions, a Climate Bar Association symposium was told on Friday.
A specialist environmental dispute resolution court (ECT) along the lines of the Workplace Relations Commission and Labour Court should be pursued, said Cliona Kimber SC. This approach was proven around the world, most notably in New South Wales.
While it should allow for the provision of class actions and include an expanded range of remedies and sanctions, the High Court would continue to operate in parallel, she added. The ECT, however, would be much more informal, and engage in alternative dispute resolution including mediation, conciliation and arbitration.
The strong demand for the court arises from many people being concerned about air pollution, water quality and wildlife, amid pent-up demand to have their concerns addressed in a low-cost way. “That place is not the High Court for everybody,” she believed.
The move to introduce an environment case list in the High Court later this year was good in its own way, she believed, “but it’s not comprehensive enough ... It’s more of the same.”
“Despite this vast body of law the environment is still routinely destroyed and despoiled: rivers are still polluted, habitats are destroyed, insect and bird numbers are dwindling, mature trees hundreds of years old are cut down, hedges are carelessly cut out of season, the climate crisis has intensified rather than abated,” she noted in a paper presented to the symposium.”
In the court system in Ireland and elsewhere, "there is often a lack of expertise. Procedural rules for bringing a case to court for breach are often too restrictive, in particular as regards standing. Sanctions, if imposed, are often too low to deter the rule breach in the future. The system to prevent imminent damage is too costly for the ordinary citizen. The range of remedies is too limited and focuses on sanction for past breaches", Ms Kimber said.
Consultation findings
Barrister Deirdre Ní Fhloinn outlined the findings of stakeholder consultation to identify barriers to enforcement of environmental law in Ireland. “It shows people find it difficult to know where to access information about enforcement of environmental law,” she said.
There is a cultural reluctance to report certain types of environmental harm for fear of local repercussions with one’s neighbours or local businesses, she said, while there is also “an incoherent set of rules without a consistent enforcement toolbox”.
“The culture of non-reporting is mirrored by a culture of non-enforcement, with serious consequences for the environment, biodiversity and our physical heritage,” Ms Ní Fhloinn said.
Louise Reilly, a legal specialist in arbitration, said environmental legislation in Ireland was a disparate collection of laws at domestic, international and EU level, when the emphasis in tackling the climate crisis should be on accessibility and enforceability.
Essential principles, she believed, should include recognition of the interconnectedness of all life forms; ecocide at domestic and international level, and “the rights of nature” – once enshrined in Brehon Law.
Environmental law in Ireland needs to be overhauled and simplified through "a model environmental code" embracing all relevant law in one accessible document, barrister Louise Beirne suggested.
Aoife Sheehan BL said the rights of future generations were not currently recognised, but she felt it would be appropriate that an environmental NGO would represent their interests if granted standing in a case.
Opening the symposium, Taoiseach Micheál Martin underlined the need for legal frameworks and access to justice as tools to effectively deal with climate crisis from the individual’s and business’ perspective.
This was in the context of it being “the defining challenge of our times”, where the EPA has found 85 per cent of Irish people are worried about its global and local impacts, but also concerned about environmental degradation, biodiversity loss and deterioration of water and air quality.
The Government was pursuing a different course to the exploitative economic model of the past, he said, backed by the appropriate legislative framework provided under the 2021 climate action plan “on the journey to real sustainability”.
"It is not enough to put legislation, plans and policies in place without appropriate implementation and enforcement," Mr Martin accepted. Likewise, success would also depend on public support for action rather than it being "imposed from outside or from above".
Welcomed the setting up of the specialist Climate Bar Association to enhance legal expertise on climate and environment, he said the legal profession and judiciary had a critical role in ensuring environmental protection was upheld.
