Environmental Science and the Law – The Regulatory Environment II: Institutions and Enforcement – © Brian Foley, 2006.
The Regulatory Environment II: Institutions and Enforcement
Introduction
In this topic we examine the roles of the key “players” in environmental regulation and then discuss the respective roles in enforcement of environmental law. We will also briefly look at the different legal obligations placed on institutions to make information on the environment publicly available.
The Department of the Environment and Local Authorities
The Department of the Environment, Heritage and Local Government[1] promotes development and protects amenities and and has responsibility for the protection of natural heritage and heritage policy generally. In addition, the Department has functions relating to housing, manages elections, and promotes the protection of the environment. Its mandate is:
To promote sustainable development and improve the quality of life through protection of the environment and heritage, infrastructure provision, balanced regional development and good local government.
In this regard, the Department develops practical policies and measures while also creating the conditions that are necessary to allow the local authorities to implement such policies. As the Minister for the Environment, Dick Roche, noted in the Department’s Statement of Strategy 2005-2007, “local authorities deliver most of the frontline services of the Department”, while the Department itself oversees this work and determines the policies underlying it.
The Department is, of course, open to receving anyones opinion on environmental matters, but it is important to note (as we will see in a moment) that the EPA has a special role in the provision of information about the environment to the Department.
Local authorities have a particular policy making role, however, in respect of the creation of development plans[2] which indicate the development objectives for a particular area, and waste management plans which are supposed to address policy matters and objectives in relation to the handling of waste in the funcational area of a local authority. Also, there is potential for co-operation between local authorities in relation to, for example, the preparation of Waste Management plans. The Waste Management Act, 1996 specifically empowers local authorities, in lieu of adopting a single plan, to co-operate on a joint plan for two or more functional areas (i.e. the areas of local authority responsibility).
Other Ministers
The Minister for the Arts, Heritage, Gaeltacht and the Islands and Minister for the Marine and the Attorney General have various enforcement functions under different aspects of Irish environmental law. Department of Communications, Marine and Natural Resources also has responsibilities relevant to the environment including policy formulation in respect of energy provision, dumping at sea, fisheries policy and so on.
Indeed, as we become more “environmentally aware” it is most likely the case that no branch of government will be able to function without some degree of awareness about how its policies and activities interact with the environment. The Department of Finance may have to think seriously about subsidising environmentally friendly activities, or penalising polluting activities through special taxes. Equally the Department of Enterprise, Trade and Employment may see environmental protection principles as an important part of enterprise development.
The Environmental Protection Agency
The Environmental Protection Agency is an independent body set up under the Environmental Protection Agency Act, 1992. It was formally established in July 1993. It is different from the majority of other semi-state bodies in that it has a full-time Executive Board consisting of a Director-General and four other Directors. All of these Directors were appointed by the Government following an open competition and screening by a selection committee that included representatives from the public and private sector. Ireland was one of the first countries in Europe to establish a body of this nature.
Since its recent restructuring, there have been five divisions in the EPA – Corporate Governance, Environmental Assessment, Licensing and Guidance, Communications and Corporate Services and Environmental Enforcement. The body operates on a regional basis. Its headquarters are in Wexford and it has five regional offices (Castlebar, Cork, Dublin, Kilkenny and Monaghan) and four sub-offices (Athlone, Letterkenny, Limerick, and Mallow). According to the most recent statistics available, the Agency has 242 members of staff.
Very broadly speaking, the EPA’s brief is to protect the environment, whilst at the same time ensuring that development can take place in a sustainable manner. The independent and impartial nature of the EPA is supposed to ensure that the same standards are applied in this regard to every person and throughout the country. The Agency has been given a great number of specific functions to aid in the furtherance of its wider objectives. For example, one of its principal roles from the outset was to license and control large scale activities having the potential to cause significant environmental pollution. The Waste Management Act, 1996, gave the agency responsibility for the licensing of public and private landfill sites. It seems likely that the EPA will soon also be made to take charge of the licensing of sewage treatment plants in the cases which are currently outside its jurisdiction.
Another key aspect of the EPA’s role from the outset was to monitor the quality of our environment, perhaps most importantly that of the air, water and soil. The Agency is required to prepare Environmental Monitoring programmes for the air and for surface, ground, estuarine and coastal water, which set out the monitoring that needs to be done and suggest the means by which it is to be carried out. In some cases the EPA does the monitoring itself but, more often, the work on the ground is done by the local authorities. The Agency has modern laboratories in each of its five regions which are used in to monitor the environment. About half of the country’s local authorities pay the EPA to use these laboratories for their own monitoring.
The EPA is required to collate the results of any monitoring done and to present its conclusions and its analyses of trends and problems. The results of this work are usually made available to the public in the form of periodic reports on specific areas of the environment and/or in the EPA’s major “State of the Environment” report, which is published every few years. The Department of the Environment is supposed to respond to the EPA’s findings by mounting policies or strategies to counter negative trends, e.g. the recent strategy document “Managing Ireland’s Rivers and Lakes”, which was published as a consequence of the Agency’s most recent Water Quality Report. In the coming years, the EPA also aims to make all public documents relating to the environment and pollution available in Internet database. It should be noted however, that there are regulations which entitle the public to access to this type of information as a matter of right – we will look at these regulations in the last section of these notes.
In addition to those already mentioned, the EPA has several other functions which serve to further its overarching objective. The most important of these functions include: co-ordinating environmental research; controlling and regulating the use of genetically modified organisms; overseeing environmental activities; providing guidance on environmental problems and issues to local authorities; and promoting environmentally sound practices through, for example, the establishment of the eco-labelling scheme.
The EPA also has a role as the Irish focal point for the European Environment Agency (EEA) and, as such, takes a key role in the co-ordination of EEA-related activities at national level. The work taken on by the Agency under this head includes inputs to projects such as the EEA’s EuropeanState of the Environment Reports. The Agency has appointed various organisations to take responsibility for national data on particular environmental topics, this information then being available to the EEA. These organisations include, for example, Teagasc for soils, and the National Parks and Wildlife Service for nature conservation.
The EPA launched its Strategic Framework Document, 2003-2006, on 22nd October, 2003. Probably the most important initiative to be undertaken in furtherance of this strategy is the establishment of an Office of Environmental Enforcement under the auspices of the EPA. This Office is intended to be the vehicle via which the EPA leads a new offensive against polluters in Ireland, adding a more rigorous enforcement programme to its previous emphasis on prevention. The current Director-General of the EPA, Dr. Mary Kelly, has stated that, under the new initiative:
“The EPA will rigorously pursue offenders, using all means available to us. The Office of Environmental Enforcement will also work closely where necessary with the National Bureau of Criminal Investigation, the Criminal Assets Bureau, the Office of the Director of Corporate Enforcement and, where appropriate, with the Gardaí.”
Additionally, under the Protection of the Environment Act, 2003, the EPA has been given a number of new powers related to the enforcement of its brief. The Agency now has an increased capacity to gather and use evidence for prosecutions and is allowed to revoke or suspend licences. The penalties available in prosecutions under the environmental legislation have been increased and the courts are allowed to have regard to any environmental remediation undertaken by the defendant in determining the penalty to be imposed.
Planning Authorities and An Bord Pleanala
The role of planning in environmental regulation is quite important, in theory. Essentially, we recognise that development can have adverse effects on the environment. This does not mean that development has to “pollute” in the classic sense, but can refer to more aesthetic environmental issues – such as for, example, the question over whether the Spire was appropriate for O’Connell Street. Thus, the planning regime has an important role in the regulatory regime. Indeed, it is primarily through the planning process that Environmental Impact Assessment takes place. However, when we come to consider planning law in more detail, we will see that there are significant problems in relation to the interrelationship between the planning agencies (i.e. planning authorities an An Bord Pleanála) and the Environmental Protection Agency.
To put it basically, all decisions to grant or refuse planning permission are at first instance a matter for the relevant planning authority[3] and for An Bord Pleanála on appeal. It is important to note at the outset that all development, unless specifically exempted[4], needs planning permission. Furthermore in making planning decisions the relevant authority is restricted to considering the proper planning and development of the area in question, including the preservation and improvement of amenities, the development plan[5] and any valid written submissions or observations made on a proposed development.
It is also to be noted that the planning regime requires planning authorities to adopt “development plans” which, in turn, must indicate specific development objectives for the relevant functional area such as, for example, the conservation of the environment, the protection of the landscape, and matters relating to the provision of waste and water facilities (the latter of which will also be covered by the relevant local authorities Waste Management plan).
Perhaps, however, the planning regimes greatest contribution to environmental regulation is through the process of Environmental Impact Assessments which were introduced as a legal requirement for certain types of development which effect the environment to a significant extent by the EC (EIA) Regulations, 1989 and the Local Government (Planning and Development Regulations), 1990, which was since repealed by the Local Government (Planning and Development) Regulations, 1994. These Regulations were intended to give effect to Directive 88/337/EEC, as amended by Council Directive 97/11/EC. EIA is now covered by Part X of Planning & Development Act 2000 now deals with Environmental Impact Assessment and by aspects of the Planning and Development Regulations, 2001.
The basic gist of EIA is simply that certain projects which we may colloquially refer to as “environmentally suspicious” must undergo a process of evaluation in respect of their environmental impact and effect as part of the planning process. The EIA process is supposed to enable the relevant planning agency to determine whether or not to grant planning permission. Although it should be noted that the relevant provisions simply say that an Environmental Impact Statement (the document required to be prepared by the application for planning permission as part of the EIA process) is something to which the planning authority or An Bord Pleanála “must have regard to”[6] in its decision as to whether the proposed development is consistent with the “proper planning and sustainable development of the area”.
Other Institutions
There a multitude of other state institutions as well as private institutions and organisations which have roles to play in environmental protection. We will look at only a few here – a more detailed list coupled with web-links can be found at
The Central Fisheries Board and Regional Fisheries Boards
The Fisheries Boards are charged with ensuring the observance of the Fishery Acts, Bye-Laws and Orders. Their purpose is to ensure the protection and conservation of our fishery resource. Regional Fisheries Boards have an active role in prosecuting violations of water pollution law.
The Heritage Council
The Heritage Act 1995 provided for the establishment of the Heritage Council. Its main function is to propose policies and priorities for the identification, protection, preservation and enhancement of the national heritage. The Act defines “national heritage” as including monuments, archaeological objects, heritage objects such as art and industrial works, documents and genealogical records, architectural heritage, flora, fauna, wildlife habitats, landscapes, seascapes, wrecks, geology, heritage gardens, parks and inland waterways.
Teagasc
Teagac was established under the Agriculture (Research, Training and Advice) Act, 1988. It has many functions in respect of agricultural training and education, but also has an important advisory function to the Minister for Agriculture. It gives such advice as may be specified by the Minister for the purpose of giving effect to any directive, regulation or other act adopted by an institution of the European Communities. This function has come under scruinty in recent times becaues of the controversy surrounding the Nitrates Directive and the preparation of the Government’s Action Programme. Teagasc itself has gone so far as to say that
Teagasc categorically states that it has not been and will not be involved in making any decisions in relation to the Nitrates Directive. Its role at all times has been a consultative one.
The Enforcement Regime
So far we have looked broadly at some of the various institutions involved in environmental regualtion. In this section we take a look at some of the powers which these instituitons have in respect of the enforcement of environmetnal law. The point here is not to give an exhaustive overview of the various ways in which environmental is enforced, but simply to examine some of the ways in which it may be and which institutions may be responsible for the different methods of enforcement.
The Enforcement Role of Local Authorities and the Transfer of Power to the EPA
Local authorities once had a wide enforcement role, but this has been curtailed since the coming into force of the Environmental Protection Agency (Extension of Powers) Order, 1996. The effect of these orders has been to transfer various powers from the local authority to the EPA. However, and this is quite a technical point, these functions have only been transferred to the EPA in respect of activities which are subject to the IPPC regime. Activities outside that regime, it seems, are still subject to enforcement through the following mechanisms by local authorities.
1. Right to Apply for Injunctive Relief
Under s. 10 of the Local Government (Water Pollution) Act, 1977, a local authority was once entitled to apply to the District Court for an order which essentially amounts to injunctive relief where it suspects that an individual is causing or permitting polluting matter to enter waters. Section 11 of the 1977 Act also permitted the local authority to go to the High Court to make such order permanent. Section 28 of the Air Pollution Act, 1987 also allows local authorities to apply to the High court for an order prohibiting or restricting any emission. Both these powers have since been transferred to the EPA in respect of activities subject to IPPC.
2. Serving notices
a) Water pollution
Section 12(1) of the Local Government (Water Pollution) Act, 1977 allowed local authorities to serve notices requiring any person to carry out such measures as are necessary to prevent polluting matter from entering waters. This power has been since transferred to the EPA in respect of activities subject to IPPC.