New Government rules imposing an as–yet undisclosed cap on recoverable legal costs in successful environmental judicial reviews will be catastrophic for environmental and climate protection, according to the Environmental Pillar.
The national network of environmental organisations added that the move is regressive and represents a heavy blow to public accountability and the quality of environmental decision-making.
Ministers Darragh O’Brien and Jack Chambers this week signed regulations to give effect to introducing a scale of fees for environmental judicial reviews.
The Pillar argues that effectively, this puts the State in control over who can and who can’t afford to go to Court and seek justice and observance of the law by our public bodies, eroding public accountability and undermining fundamental principles of our democracy and the rule of law. Government can also, at the stroke of a ministerial pen, decrease the rates.
Attracta Uí Bhroin, Manager and Law Officer of the Environmental Law Ireland Initiative said: “Claims by the Government that the regulations do not limit access to justice or constrain the right of individuals or communities to challenge decisions do not hold water. People of ordinary means, and eNGOs typically with limited resources, usually rely on this award to pay their own legal teams when they win their case. But now it is to be capped by levels set out in regulations. The move has a chilling effect on ordinary people seeking access to justice.
Essentially, you could win your case and be totally vindicated by the Court in finding the decision to be unlawful, but you could still end up with a huge balance to pay to cover your own legal team where the Court’s award won’t cover it. So, you will be effectively penalised for taking the case, and people and groups may be less able to take important cases.
Equally, if public bodies consider that oversight of the legality of their decisions by the courts is increasingly less likely, this presents a real risk to the quality of decisions.”
“The government’s claim that the fee caps will help to ensure that ‘environmental concerns are balanced with the greater public good’ is dangerously blinkered and incoherent,” said Caroline Whyte, Environmental Pillar Steering Committee Member and ecological economist working for Feasta. “The fee caps will actually undermine the public good, because there can be no public good without a healthy environment; the environment isn’t an optional add-on. Furthermore, these changes are likely to compromise the public good in other ways, by generating delays to much-needed housing and critical infrastructure, as there will be complex arguments around their legality and the whole system will become mired in uncertainty and confusion.”
Judicial reviews are sometimes portrayed as the preserve of individual NIMBY types or environmental busybodies. The Pillar argues that in reality, they are often the last opportunity for concerned individuals or groups to draw attention to legally flawed planning decisions before they are cast in concrete with all the negative impacts that can flow from that for local communities, and our shared environment.
Conversely, claims by some prominent figures that the housing crisis is caused by judicial review are untrue and highly misleading, according to the Pillar. Research by Fred Logue, a solicitor specialising in environmental law, shows that the number of new housing judicial reviews against grants of permission has decreased significantly year on year, with judicial reviews by developers against refusal increasing.(1).
Karen Ciesielski, Coordinator of the Environmental Pillar said: “This proposal, and multiple other changes in rules in Judicial Review, create an increasingly difficult and uncertain terrain for Judicial Review and are not just of concern to us as eNGOs but they are of serious concern to lawyers, and risks a flight from the Practice Area. Without decent representation when taking on State bodies and large Corporate interests, ordinary people and small environmental groups don’t have access to justice.
The State bodies, and well-off citizens, large developers and corporations will not be disadvantaged by the Government’s changes to costs for judicial reviews, so a cynic might be forgiven for thinking that they are aimed at ordinary citizens, members of the public, and small local organisations and eNGOs seeking oversight by the courts. Therefore, what is proposed here is fundamentally unacceptable.”
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