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Government takes abstraction to the next level

New Water Bill is strong on verbiage, weak on commitment

 

The words “drought” and “Ireland” are rarely uttered in the same sentence, but in the coming decades climate change may turn the Emerald Isle yellow. The summer of 2018 was one of the hottest and driest on record in Ireland, and a drought last spring caused annual output from the grain sector to drop from 2.3 million tons to under 1.9 million. These problems will intensify as the population grows and the planet warms. Climate change is projected to aggravate the precipitation disparity between the humid north and west and the drier south and east, jeopardizing the water supply of Dublin and other municipalities on the east coast. Water volume in lakes, rivers and streams will decline, and groundwater subsidence may deplete residential wells.

Forestalling this crisis will require two key measures: acquiring data on water usage across the Republic and using this information to improve regulation of abstraction (the removal and transportation of surface water and groundwater). Two weeks ago, the Government took a small step toward accomplishing these goals. The Joint Committee on Housing, Local Government and Heritage conducted its first round of pre-legislative scrutiny on the proposed Water Environment Bill. One of the aims of the Bill is to facilitate the Eastern and Midlands Region Water Supply Project, which would pipe water from the River Shannon to Dublin and other parts of the East and the Midlands. This would forestall the water shortage in the east but imperil agriculture and ecosystem health on Lough Derg and the Shannon.

 

 

 

 

Derg Doom: proposed water abstractions threaten Lough Derg and the River Shannon

 

The Bill proposes a three-tiered system: a set of rules issued by the EPA for all abstractors, registration for those who withdraw over 25 cubic meters per day, and licenses for those who take over 2000 or operate in “areas of significance.” The Bill defines a “significant” abstraction as one that puts a water body at risk of “failing to achieve its environmental objectives.” It cites an EPA estimate that only 6% of Irish water bodies are vulnerable to abstraction but does not mention that only 53% of rivers and 50.5% of lakes are in “good” condition according to EPA standards. Not all of these compromised water bodies are necessarily vulnerable to abstraction, but the lack of data makes potential impacts hard to ascertain. Given the documented repercussions of abstraction on water quality and biodiversity, more than 6% of water bodies may be at risk and should be monitored for adverse effects.

Unfortunately, the Bill’s thresholds are so high that the vast majority of abstractions would escape scrutiny. None of the 21 water bottling plants in Ireland meet the threshold for licensing, and only five clear the bar for registration. High thresholds will prevent regulators from getting an accurate picture of water usage, endangering both the environment and the long-term water supply. They may also place Ireland in breach of the EU Habitats Directive and the Environmental Impact Assessment Directive. This is because the dearth of information on abstractors will prevent the Government from fulfilling its legal obligation to conclude “beyond reasonable doubt” that abstractions will not harm EU protected sites.

Ireland can look to its neighbors to improve its abstraction regulations. Scotland and Northern Ireland have aligned their regulations with the recommendations of the EU Water Framework Directive. They have also ensured public accessibility to licensing information and brought abstraction under the control of a single enforcement agency. In Northern Ireland abstractions above 10 cubic meters must be registered, while those over 20 cubic meters require a license–one one-hundredth of the figure proposed in the Water Environment Bill.

In addition to strengthening its abstraction regulations, the Irish government should work to increase drought resiliency by creating a publicly accessible drought monitor and hydrological outlook, which are both available in many other countries. It should also improve infrastructure. Much of Ireland’s hydraulic system is underfunded and decrepit. Irish Water, the public water utility, has begun revamping it, but the government should allocate additional funds for refurbishment.

Fixing the chronic leakages in the Dublin pipe system would likely obviate the need to divert water from the River Shannon. Indeed, the Dublin hydraulic system is in such bad repair that about half of this diverted water would be lost before it arrived.

Irish Water should also begin stress testing its systems against the extreme droughts Ireland may face in the future. This push to overhaul water policy will face resistance from the industries and citizens who have long held nearly unchecked abstraction rights. It will likewise inflame tensions between the urbanized east and the monetarily poor but water-rich west. However, these complications demonstrate the need for action, not reticence. Conflict over water rights will escalate as demand increases and precipitation declines, but Ireland can meet the challenge if it acts immediately.

 

James FitzGerald is Senior Intern at irish environment magazine and a student at Williams College, Massachusetts, where he majors in history and Chinese. He is currently writing a thesis on the history of environmental policy in the Brazilian Amazon.

Ireland’s 2020 Proposed Climate Action Bill: Its Latest Faux Pas

Deja Vu All Over Again

 

Yogi Berra, the 15-year All Star catcher for the New York Yankees, was noted for his loose use of language.  Some memorable phrases are:  “It ain’t over ’til it’s over.” “You can observe a lot by watching.”  And: “It’s deja vu all over again.”  Of course déjà vu means, literally, ‘already seen.’

With regard to the recent Climate Action bill introduced by the new coalition government in Ireland, Berra’s phrasing is right on target.  As John Sweeney, the leading Irish and international climatologist, noted recently: “I’m looking at this new bill with a sense of deja-vu because it contains a lot of the weaknesses of the previous bill.”  Irish Independent, below.

 

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Before we explore one of those familiar weaknesses, it can be acknowledged that this 2020 bill offers some significant improvements over the existing Climate Action and Low Carbon Development Act (2015).  Instead of taking one step backward to go two steps forward, unfortunately the government is taking one step forward to allow it to go two steps backward.

The forward step is that the 2020 bill relies on a specific target of net zero, or carbon neutral, emissions by 2050, while the 2015 act has no specific target but only a commitment to “pursue and achieve” a sustainable, low-carbon economy by 2050.  And the 2020 bill provides for 5-year carbon budgets as a mechanism to reach the target, while the 2015 act relied on illusive “roadmaps” for finding its way.  There are other advances, like an expanded, though still suspect Climate Action council.

The serious weaknesses in the bill have been examined in thoughtful detail by the environmental NGO, Stop Climate Chaos, in a briefing document and through a Webinar featuring John Sweeney and the noted environmental lawyer Andrew Jackson of University College Dublin.

Sweeney points out a number of “ weasel words” in the bill, including the over reliance on all the things that “may” (but then do not necessarily “have to”) be done.

 

 

 

 

 

 

 

We want to focus on a particular phrase that was troubling in 2013 when the first climate act was under development.  It is relied on in the current 2015 Climate Act and resurfaces in the 2020 bill, where it is used 11 times by Sweeney’s count.  The phrase is “have regard to.”   For example, the bill provides that: “A Minister of the Government shall, in the performance of his or her functions, have regard to a carbon budget that has effect under subsection (7) or (11), as the case may be.”  At Section 6B, Approval of Carbon Budget, page 24.

In a video interview with Sweeney in the Podcast section of the April 1, 2013 issue of this magazine, we talked about the usage of the phrase, “Have regard to.”  This conversation and issue was explored further in the Reports section of the same issue in Agriculture Dictates Ireland’s Climate Policy:  The Government’s Climate Bill and the National Economic & Social Council Report, where the following analysis arguably remains relevant:

While Explanatory Notes are added to the text of the [2015] Bill, they do not add much to explain the government’s rationale for  the approach taken in the Bill.  As an example, to “explain” Head 4, the critical section of the Bill, it is noted that Ministers will “consider and have regard to” the ultimate objective of the UN Framework Convention on Climate Change (UNFCCC) and any other commitment under EU or international laws and then the Note quotes Article 2 of the UNFCCC. The explanation for the core of the Bill is simply a restatement of the 1992 UNFCCC, almost as if nothing has advanced since then, at least for this government.

Furthermore, the phrase “having regard to,” used frequently in the Bill, has an unfortunate history in Irish case law.  In the Podcast video interview with John Sweeney in the April issue of irish environment, he refers to a High Court case that provided legal interpretation of the phrase “have regard to,” which phrase is used frequently in the Climate Bill.  As Sweeney explains, the phrase means basically that the Ministers have to read the documents but are not bound by these other considerations in developing their climate plans.

The case is Tony McEvoy and Michael Smith v. Meath County Council (see below in Sources).  In that case it was alleged that Meath Council failed to ‘have due regard to” the Strategic Planning Guidelines for Greater Dublin Area in adopting its county development plan.  While the High Court found that certain provisions of the county plan did not comply with the Guidelines, and departed from the Guidelines’ policies and objectives, nevertheless the Council had “regard to” the Guidelines.  The Court held that the phrase “have regard to” means that the Council could not simply ignore the Guidelines and proceed as if they did not exist, but based on case law the term “regard” is permissive and means that the Council was “not bound to comply with the Guidelines.”

Relying on this term does seem to send a message that any commitment under the Bill is indeed permissive and Ministers need not worry about actually complying with any other considerations in developing their plans.

Using such weasel words to avoid concrete commitments suggests the Irish government, of whatever composition, has learned nothing in the intervening period since 2015, despite the critical action plans detailed by the environmental NGOs, the Citizens’ Assembly, the Climate Change Advisory Council, and the Joint Oireachtas Committee on Climate Action.

Plus ça change, plus c’est la même chose

 

Sources:

Department of the Environment, Climate and Communicaiotns, Climate Action and Low Carbon Development (Amendment) Bill 2020 (October 2020).  bit.ly/37Uhusp

Caroline O’Doherty, “Expert says climate bill full of ‘weasel words, get-out clauses and loopholes’,” Irish Independent (14 Oct 2020).  bit.ly/3jvvuLa

Stop Climate Chaos Coalition Briefing on the Climate Action (Amendment) Bill 2020 https://bit.ly/3e5jz5D

Interview with John Sweeney on the Irish Climate Bill and National Economic & Social Council report on climate policy
in Podcast section of irish environment magazine (April 1, 2013) at bit.ly/37QCKiK   See at 14:45 of interview.

Robert Emmet Hernan,  Agriculture Dictates Ireland’s Climate Policy:  The Government’s Climate Bill and the National Economic & Social Council Report in Reports section of irish environment magazine (April 1, 2013) at bit.ly/3msBNB2

John Gibson, “Ireland Climate Bill Slammed as ‘Full of Loopholes.” DesmogUK  (20 Oct 2020).  bit.ly/34yf6Fy

Irish Supreme Court Decision in a Climate Case

When Vagueness Became Illegal

 

The question before the Irish Supreme Court was whether the government failed, as a matter of law, to fulfill its obligations to address actions necessary to mitigate climate breakdown in its National Mitigation Plan (NMP or Plan).

The Supreme Court’s answer was, Yes, it did fail.  And the analysis to get to that simple answer was quite straight forward.

 

 

 

 

Friends of the Irish Environment had won the right to take an appeal, without going through the Court of Appeals, on the High Court decision that the government did enough to address climate change.

The Supreme Court closely examined the national Climate Action and Low Carbon Development Act (2015) and determined that it required that the government specify what actions were necessary to reduce greenhouse gases (GHGs) by 2050.

Then the Court examined the National Mitigation Plan that was required by the Climate Act of 2015 to establish the necessary actions.  What the Court found was a void, an empty vessel.  There was nothing in the Plan that approximated specific actions. It was all vagueness.

And that was not, legally, enough.

So the Plan was quashed and a new Plan with concrete, specific steps will have to be drawn up by the new government, which now includes the Green Party that has lots of specific ideas and policies to satisfy the requirements of the Climate Act of 2015.  Of course the environmental community, the Citizens Assembly, the Oireachtas Joint Committee on Climate Action, and the Climate Change Advisory Council have been advancing ideas and policies for a number of years.  It’s just that the government did not bother to listen to this wide public discourse.  If the government refused to listen to the public, who was it listening to?   What interest groups caught the ear of the government?

The basic legal takeaway from the Supreme Court decision is that vagueness can be illegal.  In the context of climate breakdown, the decision is historic.  No longer can the government try to excuse itself by saying, off-hand, it can be a laggard at times.  More, much more, is now required.

 

 

 

 

 

 

But there are also some interesting questions arising from possible wider implications of the decision.

The first two sentences of the decision announce a sea change for any discussion about climate change in Ireland, and arguably can be applicable to other areas of environmental law, such as biodiversity.

The Court announces that: “Climate change is undoubtedly one of the greatest challenges facing all states.” (Emphasis added)  And then adds that, “Ireland is no different [from all those other states].”

The Court lays out the facts that it finds to be relevant and established by the evidence, and that serve as the basis for applying the law.  See Section 3, “A Brief Overview of the Science.”  These factual findings include “the current scientific understanding of climate change itself…”.  At 3.1.  Beside the basics about how real climate change is, how dangerous it is, and how pressing it is, the Court acknowledges the reality of tipping points and the need to reach net negative carbon dioxide emissions at some point during this century.

While in most cases a court’s factual findings are applicable only to the case before it, as disputes and conflicts differ in their predicate facts, i.e., the facts to which the law is applied.  But in the climate case, it is an interesting notion that the Supreme Court’s finding of facts should be dispositive with regard to any claims that climate change is not real or is not of the most serious import.  Is any further litigation on climate change bound by these findings of fact, so that a litigant need not introduce evidence (through live testimony or affidavit of experts) on the realities of climate change?  Could the next litigant simply recite the Court’s findings of facts in this climate case?  If there were a subsequent case revolving on climate change, should any litigant be allowed to argue that climate change is not real or serious?  Of course all these notions assume there is no significant change in the science supporting the facts on climate change.

Even if these findings of fact do not carry any weight in other litigation, they should weigh heavily in any public discourse on climate change.  For instance, how could RTE or any other media entertain persons or reports or opinions that contradict the Court findings.  Hasn’t climate denialism in Ireland suffered a mortal blow.

And the argument that Ireland is different because it is a small nation or without resources to affect global climate is now also badly wounded by the second sentence of the decision:  “Ireland is no different.”

A final implication of the Court’s decision is found in its analysis of what constitutes specificity.  The Court held that

“the level of specificity required of a compliant plan is that it is sufficient to allow a reasonable and interested member of the public to know how the government of the day intends to meet the NTO [National Transitional Objective]so as, in turn, to allow such members of the public as may be interested to act in whatever way, political or otherwise, that they consider appropriate in the light of that policy.”  At 44.    On one level, this is an extraordinary, and enlightened, standard.  The Court finds the public to be a trustworthy source for judging whether the government is telling them what they need to know in order to take informed decisions about the matter at hand.  That is a welcome sense of participatory democracy, and so much more welcoming than smoke-filled, backroom politics.

Sources

Appeal No 205/19, Friends of the Irish Environment CLG and  The Government of Ireland, Ireland and the Attorney General (31 July 2020). bit.ly/2S57p2m

Robert Emmet Hernan, Attacking the Irish Government’s abysmal National Mitigation Plan: The Friends of the Irish Environment eNGO raises the stakes in court in ieBLOG section of www.irishenvironment.com (1 February 2019).

A Tipping Point on Climate Change in Ireland? in Reports section of www.irishenvironment.com (1 January 2018).

 

Exhausted from reading or hearing about coronavirus, BoJo and Trump

Try the daily news on climate change to feel better?

We update the News section of our magazine, irish environment, once a week, usually on Mondays. The sources are usually Irish and British news sources, plus occasional items from US, EU and more far flung sources. It is most helpful for us to cover the news as it keeps us up to date on what is happening with regard to environmental matters on the island of Ireland, as well as in the UK and EU, and elsewhere. It also provides leads on stories, issues and studies that we then report on in fuller detail.

While the coronavirus has spread and Trump and Boris Johnson (BoJo) have thickened, news about climate issues has receded. We thought it was time to push back on the other depressing news and take a look at what has been reported just this past week on climate issues. These are the kind of developments that await us when we get out from under both the virus and the Trump-BoJo distraction.

On the bad news side, we learn that the earth has lost 28 trillion tons of ice since 1994. The analysis was based on satellite surveys of the planet’s poles, mountains and glaciers and the scientists described the loss as “staggering.” As a result the sea level rise could reach a meter (3 feet) by the end of this century. Studies indicate that for every centimeter of sea level rise about a million people will be displaced from low-lying lands. And, to make matters worse, with the loss of such volumes of ice, replaced by darker seas, the earth is less able to reflect solar heat back into space so the loss will intensify the warming of the planet. The report indicates that there is little doubt the loss of ice is due to climate warming.

 

 

 

 

 

 

 

©︎Mayumi Ishii  With permission of the artist.  See www.mayumiishii.com

 

That warming is scarily reflected in the aptly named Death Valley National Park, California, where a record high temperature 129.9°F (54.4°C) was recorded on Sunday 16 August 2020. According to the World Meteorological Organization (WMO) that would be the third-highest temperature ever and highest this century. During this summer we have also noted that the Arctic experienced its first 100°F on record and the Siberian town of Verkhoyansk hit 100.4F (38C). As well, July 2020 was the hottest single month in more than a century of recordkeeping at such far-flung US locations as Phoenix; Miami; and Portland, Maine.

 

 

 

 

 

So while we have been studiously avoiding the virus, and with any luck Trump and BoJo, the climate marches on and hotter.

Some good news is unfolding in the fight against fossil fuel interests. A major Australian insurance company, Suncorp, has announced that it will end any financing or insuring of the oil and gas industry by 2025. Suncorp already has banned support for new thermal coal projects. The step is important, in part, because it includes pulling back from covering or investing in gas projects, which are often touted as the bridge fuel to a renewable energy future. It is also noteworthy because the Australian government is considering focusing on development of gas resources as a way out of the economic hole dug by the pandemic.

Also this week we find that a Nordic hedge fund worth more than $90bn (£68.6bn) has dumped its stocks in some of the world’s biggest oil companies and miners responsible for lobbying against climate action. Storebrand divested from miner Rio Tinto as well as oil giants Exxon Mobil and Chevron as part of a new policy targeting companies that use their political clout to block green policies. For example, it has been reported that ExxonMobil lobbyists met key EU commission officials in an attempt to water down the EU Green Deal in the weeks before it was agreed.

A recent article documents how the gas industry is following the dishonorable history of the tobacco, oil and coal industries in blocking legislative and legal efforts to fight climate breakdown. The subtitle of the article is: “In a nationwide blitz, gas companies and their allies fight climate efforts that they consider an existential threat to their business.” Of course the real “existential threat” is climate breakdown, in growing part because of the use of the fossil fuel, gas. The article details efforts by the gas industry to defeat a city ban in progressive Seattle. The ban was based on the fact that gas is a prime source for heating and cooking in buildings, which constitutes 1/3 of the city’s climate footprint.

 

 

 

 

A core argument being pushed by the gas industry is that gas produces less carbon dioxide than other fossil fuels and therefore can serve as a so-called “bridge fuel” toward renewable sources of energy. In other words it is the lesser of other evils. Yet gas is also a major contributor of methane, a more potent greenhouse gas than carbon dioxide, through the extraction and transportation of natural gas.

Countering the gas industry regressive practices, there are those pointing out such arguments must be rejected in any economic fix to the coronavirus crisis. The opening of the article by Jonathan Porritt says it best:

Trillions of dollars will be invested by governments in reviving their economies over the next two or three years. If those dollars are well spent, ensuring low-carbon, nature-restoring prosperity, we have a real chance of avoiding runaway climate change and ecosystem collapse. If they’re spent on taking us back to pre-coronavirus days, we’re screwed. The climate’s screwed. The planet’s screwed. And all future generations are screwed. It’s as simple – and as binary – as that.

Porritt points out, for example, that the UK chancellor ought to plan on using £27bn not for unneeded roads (people and companies are planning on working at home to avoid commutes) but for public transport, cycling lanes and pedestrian facilities. Or, for another example, isn’t it time to actually commit resources to retrofitting homes, with all the jobs that go with such a program.

If any lesson is to be learned from the virus crisis it is not that we reduced our GHG emissions during the crisis, or that our air and water have not been so clean in a very long time, or that birds and animals not seen in a very long time came back to visit. These are only short-lived, albeit most pleasurable. The real lesson is that we are vulnerable to global catastrophes and that we can survive and work our ways out of them only if we rely on sound science and reasoned, thoughtful political analysis, not on autocrats and narcissists, or self-serving industrial interests.

Sources:

Robin McKie, “Earth has lost 28 trillion tonnes of ice in less than 30 years: ‘Stunned’ scientists say there is little doubt global heating is to blame for the loss,” The Guardian (23 August 2020). bit.ly/31pDMhL

Bob Henson, “We may have just seen the world’s highest recorded temperature ever. Has that sunk in?” The Guardian (19 August 2020).

Graham Readfearn, “Insurance giant Suncorp to end coverage and finance for oil and gas industry,” The Guardian (21 Aug 2020). bit.ly/3ldnNLz

Jillian Ambrose, “Major investment firm dumps Exxon, Chevron and Rio Tinto stock: Storebrand says corporate lobbying to undermine climate solutions is ‘unacceptable’,” The Guardian (24 Aug 2020). bit.ly/32jCDrj

Emily Holden, “Revealed: how the gas industry is waging war against climate action,” The Guardian (20 August 2020).bit.ly/3gEDSGZ

Jonathan Porritt, “We must not miss this glorious chance to address the climate and biodiversity crises,” The Guardian (24 June 2020). bit.ly/3gxb9np via @guardian

There has been a call for wildlife crime busters in the Gardaí

Maybe beefing up prosecution of environmental crime within the Irish EPA would work better

 

Several members of the Social Democrats have proposed that the new government in Ireland establish a specialised Gardaí unit to deal with wildlife crime and to “properly resource” the National Parks and Wildlife Service, presumably to work with such a unit.  There are no details on how such an arrangement would be structured or implemented, nevertheless, we can work off of it and suggest some issues that need to be addressed in any movement to expand prosecution of environmental crimes.  Another way of dealing with criminal enforcement of environmental laws would be through a police force within the Irish EPA.

 

 

 

 

Substantive Laws

Some of the existing environmental laws in Ireland provide for criminal sanctions, including fines and imprisonment, so there is an existing substantive legal structure for criminal enforcement.  But if there is a movement to strengthen any criminal enforcement, there should be an assessment of what additional behaviors or violations should be subject to criminal sanctions.  A challenging, and interesting, issue would be how to criminalize actions that adversely affect climate change.

Another interesting issue is the implications of the EU Directive on the protection of the environment through criminal law (2008).  Article 3 lists conduct that “constitutes a criminal offence, when unlawful and committed intentionally or with at least serious negligence.”  The conduct covers a variety of activities, including handling of waste or radiation materials, destroying wildlife or certain habitats.  In addition, breach of a host of environmental Directives listed in the Annexes are covered.   Article 4 requires that “inciting, aiding and abetting the intentional conduct referred to in Article 3 is punishable as a criminal offence.”  Article 5 provides that “Member States shall take the necessary measures to ensure that the offences referred to in Articles 3 and 4 are punishable by effective, proportionate and dissuasive criminal penalties.”

In light of its acknowledged status as a laggard when it comes to climate change action, Ireland may have trouble satisfying many of the requirements of the EU Directive.  If environmental criminal enforcement is to be strengthened, litigation over Ireland’s compliance with the Directive may be necessary.

A recent study, Crime and Punishment, by the European Environmental Bureau (EREB) addressing environmental crimes calls for Member states to increase capacity building and resources to investigation units, enforcement bodies and prosecutors, and to provide clear EU sentencing guidance to judges.

Capacity Building for Enforcement

One of the problems of creating a special unit within the Garda  Siochana, or Gardaí, Ireland’s police force, to enforce crimes against wildlife is that it may be viewed as a second tier force.  For example, in the New York Police Department (NYPD) officers in the Traffic Division who issue parking tickets are often seen from within as belonging to a status lower than NYPD “cops.”  Moreover, if selection for this special unit comes from within the Gardaí, it can end up with officers who have little commitment to environmental problems.  It seems that one of the advantages of the independent Irish EPA is that staff are selected by the EPA and are not merely assigned to work there from other agencies.

Instead of folding such enforcement into the Gardaí, we would suggest that there are more benefits to the establishment of a police unit within the Irish EPA.  Besides making use of an independent hiring process, there are other advantages.

Prosecution of environmental crimes by officers requires specialized scientific and technical knowledge and the EPA is the institution with that knowledge and expertise.  These EPA experts can help guide investigations, based on science and facts, and can serve as expert witnesses in any prosecution.

 

 

 

 

Photo by Harriet McHale

 

Working closely with the experts within EPA on a day-to-day basis would provide a critical resource for enforcement officers.  Such a relationship would also be very useful for the EPA experts.  Most of those experts have been trained in science disciplines and they likely find the world of criminal enforcement with cops, lawyers and judges a strange place.  Getting to know the enforcement officers on a daily basis makes that other world a more familiar and comfortable space to work in.

Another advantage to relying on the Irish EPA for environmental crime enforcement is that EPA already does it, to some extent.  The Office of Environmental Enforcement  (OEE) in EPA has the authority to take direct legal action against those who violate environmental laws, including inspecting facilities, taking samples, filing legal actions that include fines and potential criminal punishment.  The OEE also has a major responsibility for supervising the environmental protection activities of local authorities.

A recent study of environmental crime enforcement in Ireland, from the decade 2004 to 2014, found that there were few criminal cases and few offenders, especially give that there are 13,000 manufacturing facilities in Ireland.  It also found that there were relatively few audits, inspections and monitoring activites given the number of facilities.  In addition, the study found that there were no cases where imprisonment was imposed in the ten years.   In total, the convictions for environmental crime represent about 0.1% of all manufacturers.

The study suggests that such a low level of enforcement action may result, at least in part, from the fact that Ireland’s economy is largely service-based and its industrial sector consists of relatively small firms where one might expect fewer significant pollution events.  On the other hand, smaller operators often are less careful in their environmental practices.

EPA’s OEE was found to rely on prevention, through national and regional planning and compliance workshops, seminars and conferences rather than punishment for enforcement purposes.  More carrots than sticks.

Finally, it is generally the case that EPA takes responsibility for infractions of licenses that it issues, and other polluting events are the responsibility of local authorities that EPA supervises.  One of the challenges of relying on local authorities for environmental enforcement is that the resources and skills available to local authorities vary widely across the country, with some well position to enforce and many not so much.

Conclusion

The suggestion for eco cops to prosecute wildlife is interesting and it should generate a wide discussion within the environmental community.   For the reasons discussed above, we suggest that the discussion should certainly start with an assessment of the existing enforcement program within the Irish EPA.

Note

The author served as an assistant Attorney General in the Environmental Protection Bureau of the New York State Attorney General’s Office for 20 years.  He also served as Senior Counsel for Commissioner Initiatives in the New York State Department of Conservation (DEC).

For an example of an enforcement initiative using a police unit dedicated to environmental violations, see STOP SMOKING DIESEL TRUCKS in the ieBLOG section of this magazine (May 2017).  It describes an environmental enforcement initiative that made use of DEC conservation officers to lessen the adverse impacts from diesel exhausts on people in communities of color or low income.
Sources:

Sylvester Phelan, “Calls to establish specialised Garda unit to tackle wildlife crime,” AgriLand (28 July 2020).  bit.ly/3f8R3yX

DIRECTIVE 2008/99/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 19 November 2008 on the protection of the environment through criminal law bit.ly/2P6gI0D

A&L Goodbody, A Guide to Environmental Law in Ireland bit.ly/3jWh08A

European Environmental Bureau, Crime and Punishment (March 2020).  bit.ly/2PcVdet

Michael J. Lynch, Paul B. Stretesky & Michael A. Long (2019): “Environmental crime prosecutions in Ireland, 2004–2014,” International Journal of Comparative and Applied Criminal Justice (13 May 2019).   https://bit.ly/335aAxM