Environmental Enforcement

General

The rules that apply in relation to river management and riparian owners vary significantly in their nature. Common law rules and liability, such as those discussed in relation to riparian rights, nuisance, negligence and trespass give rise, at most, to a right of damages (compensation) for persons such as adjoining owners, who suffer quantifiable economic loss. In some cases, injunctions are available to enforce property rights.

In the case of most of the legislation mentioned, 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 a statutory right compensation or injunction in some cases, for  persons injured by reason of pollution and breach of environmental legislation. In some cases, a statutory right to enforce may be given to everybody or to a wide class of persons. The right may or may not be limited to persons who suffer quantifiable economic loss such as damage to land.

Public Authorities Enforcement

A public authority often 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.

The authorities usually have limited resources to  enforce and prosecute, and prioritise. There is limited scope for compelling an authority to take action. There is the possibility of informal or formal review within the authority itself.

Generally, the authority acting reasonably within the scope of the priorities will be entitled to decide which cases it enforces which doesn’t. There are some statutory duties to enforce planning  permission and certain environmental, but of necessity, there are exceptions and limitations.

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 controllers of a company owner may be convicted for serious breaches of the relevant legislation. The sanctions may be a fine or even imprisonment.

For the most serious environmental offences, there may be  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 for serious  water pollution and up to 5 years imprisonment in some cases. In the case of the company, both the company and individuals behind can be prosecuted or convicted.

Court Order

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 much speedier remedy. However, the costs and costs risks are significant in many cases, even if they can be potentially recovered. The local authority or other authority usually can itself apply to court for an injunction under the same provisions in addition to or instead of using its administrative enforcement powers.

EU derived legislation protects against costs incurred by private parties, including representative bodies which  take legal action to enforce serious environmental breaches affecting the public. These provisions allow for protective costs orders so that the bodies and persons concerned will not run the risk of carrying the other side’s costs if they lose. Generally, the legislation applies to more serious breaches of a public interest nature rather than individual complaints.

Common Law Rights (Courts)

Under common law, the persons who can take action are usually only those directly affected. Ever prior to modern planning and environmental legislation, where pollution is emanating from a particular premises interfering with the enjoyment of another, the landowner of the other premises  can take legal action for compensation and an injunction. To some limited extent abatement or self-help is possible, but the circumstances are limited. It is rarely advisable to take self-help action without a court order.

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 the occupier such as a tenant.

In the context of riparian rights, it is the owner only has a right to enforce. This is not a right  enjoyed by the community.

Equally with negligence, such as the context of flooding or other adverse consequences by reason a neighbour’s  actions, recourse for breach of common law rights  is limited to measurable economic loss. This would require damage to property or persons. Pure economic loss, such as  loss of profits  without damage to property or persons, is not generally allowed in a negligence case.

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 to waters and make 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 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 Environmental Law Binds State and Authorities

An important feature of environmental legislation is that most of it binds the State and  State authorities. This is an enormous change in the law from that in earlier times. Until recent decades, State and State authorities could do much as they wanted.

State bodies and local authorities were and remain are exempt from the requirements for planning permission. There has been a  public consultation procedure since the 1990s.

The obligations are 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 water and water 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 40 years of legislation is that it is the State which is largely obliged to implement the most detailed environmental rules. State bodies are often 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 failure to meet objectives. There may be some leeway for the State authority.

Some European Union environmental rules set requirements for States which are monitored by the European Commission. Part of the rationale 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. As mentioned, there are rules in relation to costs which seek to help private parties in ensuring that states comply with their environmental obligations.

Positive Action

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 expenditure to meet a public policy objective.

This is not to say that private persons cannot be obliged to incur expenditure over and above what they would wish, when they seek permission to do something new. This is perfectly legitimate as is the case with planning permission and environmental consents.

Equally if private persons does something wrong or cause damages, they can be required to remediate the  position, even though it involves expenditure.An owner may be liable to remediate historical contamination.

However,  if 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 private persona 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  the greening elements of the basic payment. There are also supplementary elements with additional environmental commitments.

The basic obligation is to comply with the good agricultural and environmental condition and comply with the statutory management requirements. Significant amount of these obligations relate to environmental standards. The statutory management requirements are legal obligations.