In the recent case of NO2GM Ltd v. Environmental Protection Agency, the Irish High Court considered whether it should grant an order that an applicant for judicial review not be exposed to prohibitively high costs.
The applicant company wanted to seek judicial review of a decision of the Environment Protection Agency to license the release of genetically modified potato lines. The applicants submitted that the Aarhus Convention, an international convention ratified by Ireland (but not yet adopted into Irish law), requires that the procedures for challenging the validity of certain administrative decisions affecting the environment not be prohibitively expensive. Because the convention hasn’t yet been adopted into Irish law, the Court said that the relevant binding obligations upon the State are found instead in European Directives which were brought into force to transpose the Aarhus Convention into EU law.
The court considered the meaning of “prohibitively expensive costs” and observed that in another case before the Court of Justice of the European Union it had been suggested that the question of prohibitive cost “should be measured by reference to the standards and monetary values of the average members of the public”. Justice Hogan said that he was inclined to rely upon this definition, but emphasised the fact that the meaning of “prohibitively expensive” is disputed and further guidance is needed from the Court of Justice. He said that there were other areas of procedural uncertainty in the case.
In refusing to grant the order, Justice Hogan said that given the many areas of uncertainty it would be unfair to make such an order without notice to the other parties and without giving these parties the opportunity to be heard.