Misc Enforcement
General
The rules and applications that apply in relation to environmental management vary significantly in their nature. Common law rules and liability for nuisance negligence and trespass give rise, at most, to a right of damages (compensation) for persons such as adjoining owners who actually suffer quantifiable economic loss. In some cases, injunctions are available to enforce property rights.
In the case of most of the legislation, the primary entity which enforces it is the public authority. This is the case in relation to planning legislation and the enormous amount of environmental legislation affecting rivers and watercourses.
Modern legislation has provided for compensation in some cases by persons injured by reason of pollution and breach of environmental legislation. This gives the new right of claim that didn’t exist traditionally and is not usually limited to persons who suffer a quantifiable economic loss such as damage to land, et cetera.
Public Authorities
A public authority generally has more effective immediate, and cheaper remedies available to it, including the service of notices requiring remediation in action. Typically, failure to comply is an offence which is the subject of a prosecution in the District Court. There are usually significant ongoing fines in most cases for breaches.
Depending on the particular legislation, the public authority may serve a notice requiring remediation of the breach concerned. In some cases, it can enter, do the works and charge the cost, which it may recover from the owner or occupier.
A common complaint is that authorities do not act on foot of complaints in the manner in which the person complaining might wish. In many cases, the complainant may not understand the reason for not taking action, which may be soundly based.
In some cases, the authorities have limited resources to prosecute and enforce and must prioritise. There is very limited scope for compelling an authority to take action. There is the possibility of informal or formal review within the authority itself.
There is a duty to enforce planning permission and certain environmental laws, and there are exceptions and limitations.Generally, the authority acting reasonably within the scope of the priorities will be entitled to decide to what extent it enforces.
Prosecution
Various public authorities may also prosecute criminal breaches of legislation directly in the District Court or Circuit Court. Almost all prosecutions are in the District Court.
Usually, the occupier or owners or company or owners of the company may be convicted for breach of a serious breach of the relevant legislation. The sanction, in this case, may be a fine or even imprisonment.
For the most serious environmental offences, there may be a trial by jury in the Circuit Court. Individuals at fault may be prosecuted, convicted and imprisoned.
In some cases, the fines are very substantial, up to €15 million maximum for serious water pollution and to 5 years imprisonment in some cases. In the case of the company, both the company and the individuals behind it can be prosecuted or convicted.
Civil Application to Court
Planning and much environmental legislation can also be enforced directly in many cases by an application for an injunction to the Circuit Court or High Court. This can be a speedy remedy. However, the costs are significant in most cases, and this is rarely done. The local authority or other authority can usually itself apply to the court for an injunction under the same provisions without using its administrative powers.
An initiative in the last 10 years based on Irish legislation and EU legislation is protecting against costs for private parties such as representative bodies which take legal action to enforce serious environmental breaches affecting the public. These provisions allow for protective costs orders so that bodies concerned persons concerned will not run the risk of carrying the other side’s costs if they lose. The legislation applies to more serious breaches of a public interest nature rather than individual complaints.
Common Law Rights (Courts)
In the case of common law, the persons who can take action are only those directly affected in almost all cases. Prior to modern planning and environmental legislation, where pollution was emanating from a particular premise interfering with the enjoyment of another, the landowner of the other premises could and still can take legal action for compensation and an injunction. To some limited extent, abatement or self-help is possible, but the circumstances are limited, and it is rarely advisable to take self-help action without a court order.
A right to compensation lies under common law for tangible damage or loss. In the case of nuisance, which is interference with the enjoyment of the landowner’s rights, it may cover loss of amenity and enjoyment. With nuisance and claims of damage to land, the rights are limited to the landowner or occupier such as a tenant.
Equally with negligence, such as in the context of flooding or other adverse consequences by reason of a neighbour’s actions, the common law rights enforced by the court are limited to measurable economic loss. This would require damage to property or persons. Pure economic loss is loss of business without damage to property or persons and is not generally allowed in a negligence case.
Apart from the inherent limitations of who might recover for breach of riparian rights, trespass nuisance, and negligence, there can be significant practical obstacles in going to court
Remediation Obligation
European Union legislation provides that there must be a right to compensation where environmental damage is caused by certain operators. Environmental damage includes damage to water. Operators must notify the Environmental Protection Agency of damage and send proposals to remediate.
They are usually liable for remediation to a baseline condition and also for other complimentary remediation. This is in addition to other liability operators may have, e.g. under water pollution and fisheries legislation.
The legislation applies to “operators”. They include bodies undertaking licensed activities such as trade discharges into water and groundwater, as well as water abstraction and impoundment. It can include Irish Water in some contexts. The regulations are enforced by the Environmental Protection Agency. It can apply to court. Individuals can also apply to the High Court to review the legality of the EPA’s decision or failure to act.
EU Binds State and Authorities
An important feature of environmental legislation is that much of it binds the State and state authorities. This is an enormous change in the law from that in earlier times. Until recent decades, the State and state authorities could do much as they wanted.
Such bodies and local authorities were and remain exempt from needing planning permission. There has been a public consultation procedure since the 1990s. Their obligations are only to notify projects and take account of inputs and representations made by the public.
Sometimes an environmental impact assessment is required. Some public bodies may need planning permission or a licence from the Environmental Protection Agency.
Since the mid-1980s, The European Union has taken on environmental functions and powers. An enormous amount of European Union-wide legislation has been made which is relevant to environmental standards. In contrast to most legislation, this principally binds the State in its widest sense. The State, in its laws and its administrative actions, must comply with the various regulations and standards.
The result of the last 20 or 30 years of legislation is that it is the State which is largely obliged to implement detailed environmental rules. State bodies can be obliged to undertake an environmental impact assessment. The EPA may take action against state bodies such as Irish Water for failures of compliance.
The EU Commission may take action to fine Ireland for failures of compliance and objectives. The objectives often have some leeway in them.
European Union rules set requirements for states which are monitored by the European Commission. The idea of the European Union’s powers and competence in environmental matters is to ensure fair competition. If some states had lax environmental rules, then they would have an unfair advantage in producing goods and agricultural produce.
There are very extensive rules in relation to access to information on the environment. There are rules in relation to costs which seek to help private parties in ensuring that states comply with their environmental obligations.
Private Persons’ Duties
States are bound by EU rules, whereas private individuals are not bound or are indirectly bound by them at most. For example, the State has a general obligation to meet environmental targets and some cases, to remediate past damage. The general position under the Irish Constitution is that private individuals and landowners are not generally required to incur expenditures to meet a public policy objective.
This is not to say that private persons cannot be obliged to incur expenditures over and above what they would wish when they seek permission to do something new. This is perfectly legitimate, as is the case with a new planning permission and environmental consent.
Equally, if private persons do something wrong or cause damage, they can be required to remediate the position, even though it involves expenditure. However, generally, if it is a question of an existing position or state of affairs which has existed without fault, owners are not generally obliged to spend money to improve the current position.
In a case where there was proposed legislation by which employers were obliged to spend money adjusting premises for disabled persons, the Supreme Court held the requirement unconstitutional. The requirement was a matter of public policy, and the court decided that a private person, such as an employer, could not be required to spend money making adjustments beyond relatively nominal amounts. The legislation was amended so that nominal expenditure only was required.
Farm Payment Incentives
Many of the objectives and targets and environmental law are effectively met through incentives provided through green elements of the basic payment. There are also supplementary elements with additional environmental commitments.
The basic obligation is to comply with good agricultural and environmental conditions and comply with the statutory management requirements. A significant amount of these obligations relates to environmental standards. The statutory management requirements are legal obligations.