Enforcement of pollution laws lacking in Ireland because of costs involved in taking action, judge warns

A Supreme Court judge has warned environmental law enforcement is lacking in Ireland because of a lack of resources and significant costs associated with taking action.

Environmental litigation brought by everyday people should have an important role to play but is “all too brief”, Mr Justice Maurice Collins told the Climate Bar Association’s law conference in Cork.

The grandnephew of Michael Collins and Clonakilty native, who was nominated to the Supreme Court in November last year, said: “Courts are playing an important role and will always have to play an important role in environmental litigation. In Ireland, courts play far too great a role.

“Individual action, or at least enforcement action, environmental litigation, brought by non-public bodies, has an important role to play in Ireland. But in Ireland, it plays far too brief a role.” 

Public agencies play such a reduced role in enforcement because of the cost and a lack of resourcing, he said.

Pollution enforcement should be brought by local authorities or public bodies because they are “public insults” but is often not because of funding challenges, the judge said.

Even in successful proceedings, the enforcement agency is still left at a loss, despite already having limited enforcement budgets, he warned.

“Those budgets can be eaten up very quickly by any form of significant dispute. Planning enforcement is often simpler but pollution enforcement may involve the devotion of very significant resources to simply establish the source of pollution and the cause of the damage, before you ever get to court at all. 

“If you don’t recover the cost of that from the person against whom proceedings are brought, they you are left with a very significant hole in your budget.” 

The Climate Bar Association last year proposed a new one-stop environmental court to deal with everyday issues like wildlife crime, illegal hedge cutting, and air and water pollution, a concept that Mr Justice Collins endorsed at the conference.

Its recommendation is to streamline environmental law issues in a manner similar to the operations of the Workplace Relations Commission (WRC) or the Residential Tenancies Board (RTB).

The new court would be less formal than regular courts, and would be able to deal with disputes between neighbours over environmental matters, water pollution, wildlife offences, hedge cutting, or habitat destruction, at a much lower legal cost for all concerned, the Climate Bar Association said.

Chair of the Climate Bar Association Clíona Kimber told the conference  Australia had one of the best models internationally.

“It sets up an environmental court and tribunal which has entry-level types of courts which would be much more like the WRC or Labour Court or RTB. They are in a room, less formalistic, aimed at solutions using mediation and arbitration. There is a variety of ways to try and solve problems. It’s a triaging system almost — see what we can deal with quickly and easily.” 

The analogy that the Climate Bar Association has used still holds up, she said. “You don’t have to play every match in Croke Park when the local pitch should be good enough”, and the same should apply to environmental law.

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