Over the past 20 years the huge output in EU environmental policy, both shaping and reflecting an increased environmental consciousness amongst the European public, has undoubtedly been the major driving force in the development of Environmental Law in Ireland.
As Irish Environmental Law has evolved it is possible to discern important trends such as increased powers for environmental regulatory authorities; an emphasis on personal liability for corporate environmental offences; strategic planning for the environment by State agencies; and an ever-more elaborate system of environmental licensing and pollution control.
Increasingly for business and industry, the impact of environmental controls is no longer just about avoiding environmental liability. The increased linkage of the environment with economics – through a growing, if very gradual, pricing in of the cost of pollution externalities, stronger supervisory powers for licensing authorities and a watchdog role for the public have made environmental compliance important also for competitiveness and for improving relationships with customers, business partners, and funders.
The Environmental Protection Agency
Ireland’s Environmental Protection Agency is now established for almost 20 years. Its multifaceted role serves to emphasise how the environmental protection regime in Ireland has evolved and matured in that period. The EPA has an important function in environmental research and monitoring and on environmental quality reporting. It is a statutory consultee in a significant number of development consent
processes relating to infrastructural and other large projects with potential to impact on the environment. It is itself an important licensing and permitting authority for a range of industrial facilities. The EPA also has a critical role in environmental enforcement, as part of which it also polices how local authorities discharge their environmental protection remits. One of the principal Divisions of the EPA is its Office of Environmental Enforcement. The Agency is also the Irish competent authority for many Irish climate change related obligations and functions. For example the EPA measures and reports on Ireland’s greenhouse gas emissions and sinks under the UN Framework Convention on Climate Change. It is Ireland’s focal point for Kyoto Protocol project mechanisms with an Irish connection and it the competent authority in Ireland for the EU Emissions Trading Scheme – the EU’s “cap and trade” carbon trading scheme.
Pollution Emissions Control
Ireland has a comprehensive system for the control of emissions to air and water from manufacturing and processing installations. The EU’s harmonised licensing system for industrial emissions, known as “Integrated Pollution Prevention and Control” (IPPC), applies in Ireland to a range of large industry sectors including minerals, energy installations, chemicals processing and food and intensive agriculture. Each installation is strictly regulated under a licence that requires the operator to have the technical know-how and the financial security to operate the facility; licences have a range of conditions to ensure that relevant “emission limit values” are observed (such as those required under other environmental Directives like the Large Combustion Plant Directive, which controls concentrations of nitrogen oxide, sulphur dioxide and particulate matter). Outside of the IPPC licensing regime, smaller industrial and manufacturing installations are (subject to particular size and capacity thresholds) subject to emissions control and licensing regimes for emissions to air and water, while other facilities are controlled specifically for volatile organic compounds. For smaller installations, typically the local authority rather than the EPA is the competent authority.
Waste Regulation
Our historic over-reliance on landfill, together with hugely increased waste arisings associated with economic development, means that waste management remains one of the most challenging areas of environmental management in Ireland.
Our waste management legislation deals with all aspects of waste management – from prevention, to providing for sustainable disposal and recovery solutions. Important features of this regime include a licensing system for local authority and privately-operated waste facilities; and waste planning whereby local authorities are required to make strategic waste management plans for multi-year periods for their regions. There are now comprehensive producer responsibility (take-back) regimes operating in respect of packaging waste, end-of-life vehicles and waste electrical and electronic equipment. There are many sets of regulations that fill in the detail for areas such as the transfrontier movement of waste, agricultural waste, hazardous waste, and waste charges and taxes. There are regulations in the area of waste permitting (permits, as distinct from licences, are required for smaller-scale waste facilities) and in the area of registration of waste brokers. Notwithstanding important European legislative and policy guidance in the form of the successive EU Waste Framework Directives and the EU’s “waste hierarchy”, waste management strategies and the choice of infrastructure (e.g. incineration/waste-to-energy versus recycling etc.), remain politically unsettled and controversial in Ireland, both nationally and regionally. The basis and terms upon which markets in waste and in waste-related services have been opened up (and in particular the issue of an appropriate competitive and regulatory balance) have also been controversial as between public and private waste providers.
Planning and Land-Use
In Ireland land-use and planning control is achieved through a comprehensive legislative framework, namely the Planning and Developments Acts 2000-2010. These planning laws seek to reconcile the often competing objectives of rigorous environmental protection on the one hand with, on the other hand, an increase in the amount and scale of the “built environment” associated in turn with economic development. The overriding principle for planning authorities in making decisions on specific development proposals is “sustainable planning and development”. One of the principle features of the 2010 Planning Act was the imposition of much stricter controls on local authorities’ zoning of lands for development (in particular for residential development) through the imposition of a legal requirement for evidence based zoning. Planning authorities (essentially the planning departments of local authorities) are legally required to make strategic Development Plans (these are typically revised every six years) in accordance with certain criteria. Applications for planning permission for residential, commercial, mixed use and other projects are then assessed in accordance with the objectives and zonings set out in those Development Plans. An appeal lies from a planning authority’s decision on a particular planning (development consent) application to the Planning Appeals Board (An Bord Pleanala).
An important feature of the planning system since it was comprehensively overhauled in 2000 is its integration with other environmental regimes. For example, the objectives of regional waste management plans are now deemed to be included in land-use Development Plans prepared by planning authorities. Also, where Environmental Impact Assessment is required for certain projects under European Law (see below) such assessments are generally carried out by planning authorities as part of, and in parallel with, their decision-making on applications for the requisite (planning) consent for the project.
As mentioned, planning controls (including civil and criminal enforcement against unauthorised development) are operated by the planning departments of local authorities. However, there is also a layer of oversight from central Government. The Department of the Environment, Heritage and Local Government (DoEHLG) issues periodic guidelines to planning authorities (such as regional planning guidelines) to ensure a coherence and a spatial balance in the development and application of planning and land use policies across the Country.
“Fast Track” Planning Process for Strategic Infrastructure
To address a perceived deficit in Ireland’s national and regional infrastructure, the Planning and Development (Strategic Infrastructure) Act 2006 introduced a “fast-track” planning process for a range of infrastructure deemed to be strategically important for the Country or for particular regions. If the Planning Appeals Board considers that any particular environmental, energy, transport or healthcare development proposal (again, certain minimum size thresholds apply) qualifies as “Strategic” Infrastructure then the planning application need not be made to the local planning authority in the first instance but can be made directly to the Planning Appeals Board, something that generally expedites the development consent process. Members of the public still have a right to make submissions and observations on the application.
Environmental Impact Assessment
The requirement for an assessment to be carried out on the likely significant effects on the environment of certain developments or projects is an essential environmental protection mechanism that is applied in many jurisdictions. Ireland’s arrangements and requirements for Environmental Impact Assessment are heavily shaped by the EU Environmental Impact Assessment Directive, dating back to 1985.
Implementing Irish Regulations in this area create three broad tiers or approaches to EIA. Firstly, EIA is mandatory for certain specified projects or developments irrespective of size or scale (mining works and oil refining are examples); secondly, EIA is also mandatory for certain other projects or developments above a certain threshold or scale (an example being wind farms, where EIA is required for developments involving more than 5 turbines or having a total output greater than 5 megawatts); thirdly, even where such thresholds are not reached (i.e. where a project is “sub threshold”) planning authorities may still exercise a residual discretion to conduct EIA where they consider that significant environmental impact could result.
Much public participation in environmental decision-making in Ireland takes place through the opportunity for the public to examine and make observations on an Environmental Impact Statement (EIS). An EIS is prepared by the project developer and is the centrepiece for the overall Environmental Impact Assessment. Matters of dispute in environmental contentions and controversies between environmental groups and project developers will frequently centre on the adequacy or inadequacy, in legal terms, of the EIS submitted by the project developer.
In addition to environmental assessment for specific projects, increasingly it is recognised that environmental assessment is desirable also for certain plans or programmes. The implementation of certain plans or programmes can profoundly influence and shape the natural environment and so, since 2004, there is a requirement in Ireland for prior “Strategic Environmental Impact Assessment” (SEA) as part of the preparation and adoption of certain plans and programmes that ultimately “set the framework” for development consents. Land Use Development Plans and Regional Waste Management Plans are examples of the kinds of plans/programmes that now have to be subject to prior SEA in Ireland.
Nature Conservation and Biodiversity
A range of regimes of national and EU origin are designed to protect biodiversity in Ireland. For many decades Ireland has had its own set of Wildlife Acts. There is also a national system of protected areas know as Natural Heritage Areas (NHAs). As an EU Member State Ireland has implemented both the Birds Directive from 1979 and the Habitats Directive from 1992. These Directives imposed on Ireland the obligation to participate in establishing an EU-wide network of protected areas known as “Natura 2000”. Those protected areas created under the Birds Directive are known as Special Protection Areas (SPAs), while those under the Habitats Directive are known as Special Areas of Conservation (SACs). The key protection mechanism is the requirement to consider the nature conservation implications of plans or projects on an SPA (or a proposed SPA) or on an SAC (or on a candidate SAC). This is achieved in Ireland through the carrying out of a formal “Appropriate Assessment”. The “scope” and level of detail in an Appropriate Assessment will be determined by factors such as conservation objectives of the protected area in question; whether there are any priority species or habitats involved; the nature and scale of the proposed plan or project; and, in the case of a project, whether it is a project that is required to undergo Environmental Impact Assessment separately under EIA legislation.
Future Developments
Environmental Law in Ireland is continuously evolving in an attempt to strike a balance between economic development and environmental protection. Whereas there have been some examples of “home-grown” Environmental Law, it is likely that the picture will continue to be shaped heavily by developments in EU Environmental Law and Policy.
Traditionally air and water have been the focus of protection efforts and there are now comprehensive licensing and regulatory regimes in force to protect these vitally important environmental media. There is still no statutory contaminated land regime in Ireland. As a result, determining liability associated with contaminated soil or land can often depend on the application of related regimes such as groundwater legislation (where groundwaters are affected) and/or waste law and/or certain common law rules, such as nuisance. The terms of any relevant commercial or property transaction involving land such as the caveat emptor rule and any warranties or indemnities that may apply may also be relevant in determining liability for clean up or damages in relation to contaminated land.
The climate change agenda is driving a range of measures. An important first step in this regard was the implementation here in 2005 of the EU Carbon Emissions Trading Scheme. A more recent example is the 2009 EC Directive on Carbon Capture and Storage – elements of this Directive have already been implemented into Irish law, such as the requirement for newer large combustion plants to assess the scope for the retrofitting of CO2 capture technology.
For further information on this topic please contact Conor Linehan, Partner, Environment & Planning Group.
