Dr. Áine Ryall is Senior Law Lecturer at University College Cork.
Environmental courts and tribunals are found in many countries around the world. Essentially, these are judicial or administrative bodies empowered by the State to specialise in resolving environmental disputes. Among the best known examples are: the Land and Environment Court in New South Wales, Australia; the Environment Court of New Zealand; the Vermont Environmental Court in the United States; and the Swedish Land and Environment Courts. England and Wales now has an Environment Tribunal and a recently established ‘Planning Court’ which takes the form of a specialist ‘Planning List’ in the High Court. Scotland is considering whether to establish an environmental court.
In Ireland, there are no specialised environmental courts as such. Environmental cases are dealt with across the different courts, from the District Court to the Supreme Court. But we do have well-established environmental tribunals in the form of An Bord Pleanála and the Aquaculture Licences Appeals Board, while the Office of the Commissioner for Environmental Information deals with disputes over public access to information.
Given the complexity of both the law and the technical issues that often arise in environmental disputes, it is timely to consider whether an environmental court is a good idea in the Irish context. Also, the mechanisms in place to determine environmental disputes must be assessed in light of Ireland’s obligations under international and European Union (EU) law.
The Aarhus Convention and EU law require the State to provide mechanisms by which the public can challenge environmental decisions. These review procedures must be “fair, equitable, timely and not prohibitively expensive.” The high cost of legal services, delays in processing cases in the courts and dissatisfaction with the narrow scope of judicial review are frequent complaints from those involved in environmental litigation in Ireland.
Greening Justice, a report published in 2009 by The Access Initiative, provided a detailed study of environmental courts and tribunals around the world. It presented the potential benefits of specialisation as including: greater efficiency and less cost; consistency in decision-making; improved judicial oversight leading to greater public confidence in the system; greater visibility of environmental issues; and scope to develop special procedures, including more flexibility and an emphasis on alternative dispute resolution.
On the other hand, the potential disadvantages of specialisation include: how to define ‘environmental’ cases; the fact that other areas of law, apart from environmental law, also deserve specialist knowledge; the risk of marginalising environmental courts from the mainstream judicial system; a potentially insufficient caseload to justify a specialist court; and the significant start-up costs of setting up a new ‘stand-alone’ court.
So there is clearly a wide range of important practical issues to be weighed up in determining whether a specialist environmental court would bring any added value to the current system operating in Ireland.
Another significant issue is how best to recruit and appoint expert judges to preside over an environmental court? Apart from the obvious challenge posed by the relatively small pool of judges and lawyers in Ireland who specialise in planning and environmental matters, consideration would also have to be given to the potential role of experts who are not lawyers (i.e. technical and scientific experts) as members of a specialist environmental court. For example, the Land and Environment Court of New South Wales is made up of legally qualified judges and ‘Commissioners’ who have qualifications and experience in a wide range of relevant areas including: town, country or environmental planning; environmental science; environmental assessment; natural resource management and engineering etc. The regional Land and Environment Courts in Sweden comprise a legally qualified judge, a technical judge (with technical expertise in environmental matters) and two expert lay members. The idea of specialist environmental judges who are comfortable with the material, willing to engage with it and who can understand the technical and scientific evidence is certainly attractive. Specialisation should deliver consistency and reliability in the case law.
But addressing persistent problems with delay and cost is far more complicated than simply appointing specialist judges to deal with planning and environmental cases. Delivering faster and cheaper environmental justice will involve making significant changes to rules of practice and procedure, proactive and intensive case management by judges, and, of course, a commitment to invest the resources necessary to support the efficient administration of justice.
If a specialist court is considered to be desirable, the question then arises as to what particular model should be adopted to suit the Irish context? A new ‘stand-alone’ environmental court or an environmental ‘division’ or ‘list’ within the existing court structure? Depending on how it is configured, establishing a new, wholly separate environmental court would probably require a constitutional amendment. On the other hand, an environmental ‘division’ or ‘list’ would not involve any radical change to the current system and could be designed along the lines of the Commercial Court which is, in effect, the Commercial List of the High Court which operates under special provisions of the Rules of the Superior Courts.
Whether or not an environmental court is established, delivering a dispute resolution system that is efficient, affordable and user-friendly will require innovative approaches and a significant ongoing investment of resources by the State.
A well-informed discussion among interested parties about how best to resolve environmental disputes in a manner that is compatible with Ireland’s obligations under the Aarhus Convention and EU law is the best starting point. An important part of that discussion must be how we can prevent or at least reduce environmental disputes. Working to improve the quality of decision-making at first instance, through specialised training, capacity building and access to expert advice for decision-makers, is an obvious practical step in the right direction.
Follow Dr. Ryall's environmental law research work and developments concerning the Aarhus Convention and EU environmental law related issues, including access to environmental justice at www.environmentaljustice.ie and on Twitter @EnvJusticeUCC.