Introduction

Resigning from the Seanad and the Green Party Parliamentary Party in February 2010, Déirdre de Búrca offered a stark assessment of the Green Party’s time in government: “we have gradually abandoned our political values and our integrity and in many respects have become no more than an extension of the Fianna Fáil party” (de Búrca 2010a).  Party leader, and Minister for the Environment, John Gormley has done a disservice to the Greens, Ms. de Búrca argued, having presided over a party that has lost its way (de Búrca 2010a).

Much of the subsequent fallout focused on an alleged personal motivation for Ms. de Búrca’s resignation: that is, her failure to secure a promised position in the cabinet of Máire Geoghegan-Quinn, Fianna Fáil’s favoured – and subsequently appointed – candidate for the (independent!) role of European Commissioner (de Búrca 2010b).  However, in the face of this political distraction, little has been said of the substance of Ms. de Búrca’s argument, which nevertheless deserves some attention.  In brief, can it justifiably be argued that the Green Party has, in any objective sense, lost its way during its first spell in power?  Evidence would suggest that it can.

Ireland’s environmental record

The Green Party’s entry into coalition government in May 2007 unsurprisingly raised expectations that Ireland’s environmental reputation might be rejuvenated on the international stage.  However, figures recently released by the European Commission regarding compliance with EU environmental law reveal that Ireland’s record has got worse, not better, during the coalition government’s time in office.

To understand the figures, a bit of background is required: breaking EU environmental law can have legal consequences in two stages.  At the first stage, under Article 258 of the Treaty on the Functioning of the European Union (TFEU) (ex Article 226 of the EC Treaty), the European Commission can refer the infringing Member State to the European Court of Justice (ECJ) in Luxembourg, which gives its judgment regarding whether or not a breach of EU environmental law has occurred.  Ireland has been found in breach many times at this stage.

The second stage, under Article 260 TFEU (ex Article 228 of the EC Treaty), arises only if the Member State fails to comply with the ECJ’s judgment.  It ends with the European Commission applying to the ECJ for a second time, this time asking that a fine be imposed on the Member State for failing to comply with the ECJ’s earlier judgment.  While proceedings at the second stage are relatively common (European Commission 2010), they only very rarely result in a fine, since in most cases the Member State in question complies before a fine can be imposed.

Indeed, there have been only nine fines imposed under this provision in the history of the EU, across all sectors of EU policy (Greece 4; France 3; Spain 1; Portugal 1).  That said, all of these fines have been imposed since 2000, six of the nine have been imposed since 2006, and four have been imposed since December 2008 alone, so the European Commission is undoubtedly making growing use of its power to request a fine from the ECJ.  Further, the prospect and potential level of fines certainly concentrates minds in government: e.g. in 2005, France was fined a lump sum of EUR 20 million, plus EUR 57.7 million for each 6 months of continuing non-compliance with a judgment of the ECJ (Case C-304/02).

Notwithstanding a popular misconception to the contrary (perpetuated even by the Law Society’s Law Reform Committee (2008, at p.13), which should clearly know better), Ireland has never been fined for breaking EU law, though this now seems only a matter of time.  Indeed, based on the figures recently released by the European Commission (European Commission 2010) – covering the period to the end of 2009 – the three worst offenders in terms of ongoing environmental infringement cases were: Spain (40 cases), Italy (35 cases), and Ireland (34 cases) (Figure 1).  These three countries effectively form a breakaway group, their nearest rivals being the Czech Republic, France, and the UK, each on 26 cases (Figure 1).  Focusing only on cases at the second stage (proceedings for fines in environmental cases), Ireland fares even worse, the top (or bottom) three being: Ireland (14 cases), Italy (9 cases) and Greece (8 cases) (Figure 2).

Figure 1: Total number of EU environmental infringement proceedings (under Articles 258 and 260 TFEU) open against each EU Member State as at the end of 2007 and 2009.  Member States ranked from highest number of open cases to lowest using the figures for 2009.  Based on European Commission 2008 and European Commission 2010.

Figure 2: Number of EU environmental infringement proceedings open under Article 260 TFEU (proceedings for fines to enforce earlier ECJ judgment) against EU Member States as at the end of 2007 and 2009.  Member States ranked from highest number of open cases to lowest using the figures for 2009.  Based on European Commission 2008 and European Commission 2010.

In other words, of the 27 EU Member States, not only did Ireland have the third highest total number of EU environmental cases to defend at the end of 2009, it was the worst performer by some distance in terms of meeting its obligations after a breach had been confirmed by the ECJ.

Given Ireland’s relative size, these figures are staggering.  As the European Commission points out, Germany and Ireland are two exceptions to the general rule that larger Member States typically have a larger caseload, the former having many fewer cases than one would expect, the latter many more (European Commission 2010).  But more worrying than the bare statistics is the year-on-year trend.  For the period to the end of 2007 – shortly after the Fianna Fáil/Green Party coalition came to power – Ireland was dealing with 34 environmental infringement cases overall (still 34 at the end of 2009), and 10 cases at the second stage (14 cases at the end of 2009, 12 now).  In contrast, most of the other generally poor environmental performers have improved their positions over the same period.  Italy, for example, has cut its overall caseload from 60 cases at the end of 2007 to 35 cases at the end of 2009; at the second stage (proceedings for fines), its caseload has halved from 18 cases to 9 over the same period.

Potential explanatory factors

Statistics do not tell the full story, of course.  The number of cases open against a given country might, as the European Commission highlights, “depend on many different factors such as the level of pro-activeness of local environmental groups and citizens” (European Commission 2010).  However, given the tiny NGO sector in Ireland (Irish Environmental Network 2010), it seems unlikely that a difference in environmental pro-activeness explains, for example, why Ireland – a country with less than half Sweden’s population (CIA 2010) – has more than three times that country’s environmental caseload overall, and fourteen times its caseload at the second stage.

The second potential factor cited by the Commission – “how likely [local environmental groups and citizens] are to approach the European Commission with their concerns rather than maybe turning to their national authorities or courts” (European Commission 2010) – seems a better explanation.  Indeed, access to justice at the national level is one of the key problems for NGOs and others seeking to improve the environmental situation in Ireland (Ewing et al. 2008).

Access to justice

So what has the government done in this area?  In 1998 Ireland signed the UNECE’s Aarhus Convention, a groundbreaking international agreement on access to information, public participation in decision-making, and access to justice in environmental matters, described by former President Mary Robinson as “a key signpost for the future of human rights and the environment in all parts of the world” (Robinson 2001).  Not in Ireland, apparently.  Twelve years after signing the Convention, Ireland has still to ratify (such that the Convention has not come into force here), leaving Ireland as the only EU Member State in this position (UNECE 2009).

This failure to ratify has not, of course, prevented the Convention’s entry into force elsewhere, but it nevertheless raises serious questions about the government’s commitment to transparency and environmental protection.  A promise in the renewed Programme for Government to “ensure that Ireland can ratify the Aarhus Convention by March 2010” (RPG 2009) seems merely the most recent in a long line of such promises.

Two potential explanations for the government’s tardiness present themselves.  First, it might be argued that ratification is unnecessary, as the EU has adopted legislation to implement parts of the Convention (European Commission 2009), which Ireland has in turn taken certain steps to transpose (e.g. see the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. 133 of 2007)).  However, there are major acknowledged gaps in the EU’s implementation (e.g. there is no directive on access to justice (European Commission 2009)), and the Convention contains a standalone compliance mechanism, which is highly unusual in an international environmental agreement.  Ratification would therefore be anything but a redundant step.  Second, the government might argue that it wants to ensure that Irish legislation complies with the Convention before ratifying.  To this there are two responses.  First, after twelve years and with no sign of ratification in sight, just how long is a process of ensuring compliance supposed to take?  And second, the Convention provides for a grace period of 12 months from ratification before allegations of breaches can be considered by the Convention’s Compliance Committee, thus giving the government (additional) time to bring Irish legislation into line (UNECE 2004).

Conclusion

It is hard to avoid the conclusion that non-compliance with environmental obligations is a systemic problem in Ireland.  Internationally, the government risks characterisation as an environmental Will-o’-the-wisp: happy to sign up to agreements, but less happy to comply when push comes to shove.  Having inherited a toxic legacy of environmental breaches, which typically take years to work their way through the EU’s legal enforcement regime (Krämer 2006, 2008), and sharing power with the environmentally recalcitrant Fianna Fáil, the Green Party cannot be held solely to blame for this, of course.  Nonetheless, during three years in power, in terms of compliance with its international obligations, the government has moved sideways then back, like an ill-fated sidewinder, trapped in reverse.  Most worryingly, even with a Green Minister for the Environment, Ireland has lost ground in addressing its infringement record.  Our first EU fine is looming, which may not be pleasing news to an already hard-pressed tax-payer, particularly in the midst of a recession.

Notes

1.  In an interview with Village Magazine in March 2010, Minister Gormley stated “that’s not true – we had 33 [ongoing cases] and now we have 28 or 29 – so it’s reduced.”  (Inside the mind of John Gormley, Village, published online on 9 March 2010: www.theormond.ie/villagemagazine/index.php/2010/03/inside-the-mind-of-john-gormley/.)  However, this is not borne out by the European Commission’s official statistics, as detailed below.

2.   Cases C-387/97 (Greece), C-278/01 (Spain), C-304/02 (France), C-177/04 (France), C-70/06 (Portugal), C-121/07 (France), C-109/08 (Greece), C-568-07 (Greece), C-369/07 (Greece).  In addition, ECJ decisions on two applications for fines are pending: Cases C-407/09 (Greece) and C-496/09 (Italy).

3.  This has recently fallen to 12 cases, following the Commission’s closure of two cases in March 2010: see Press Release IP/10/313 of 18 March 2010: europa.eu/rapid/pressReleasesAction.do?reference=IP/10/313&format=HTML&aged=0&language=EN&guiLanguage=en.  Nevertheless, Ireland still has the highest number of ongoing proceedings for fines under Art. 260 TFEU.

4.  See note 3.

References

CIA (2010).  CIA World Factbook.  Ireland: www.cia.gov/library/publications/the-world-factbook/geos/ei.html; Sweden: www.cia.gov/library/publications/the-world-factbook/geos/sw.html

DE BÚRCA (2010a) Letter of Resignation from Senator de Búrca to Party Leader John Gormley (12 February 2010). www.deirdredeburca.ie/2010/02/letter-of-resignation-from-senator-de-burca-to-party-leader-john-gormley/

DE BÚRCA (2010b).  Putting the record straight (15 February 2010).  www.deirdredeburca.ie/2010/02/putting-the-record-straight/

EUROPEAN COMMISSION (2008).  Statistics on environmental infringements.  Formerly available at ec.europa.eu/environment/legal/law/statistics.htm, which has since been updated as European Commission (2010).  The relevant figures for 2007 are available from the European Commission, DG Environment.

EUROPEAN COMMISSION (2009).  The Aarhus Convention.  ec.europa.eu/environment/aarhus/

EUROPEAN COMMISSION (2010).  Statistics on environmental infringements.  ec.europa.eu/environment/legal/law/statistics.htm

EWING, M., HOUGH, A. and AMAJIRIONWU, M. (2008).  Assessing Access To Information, Participation, and Justice In Environmental Decision-Making in Ireland.  www.environmentaldemocracy.ie/pdf/finalreport.pdf

IRISH ENVIRONMENTAL NETWORK 2010.  List of Member Organisations.  www.ien.ie/?page_id=31

KRÄMER, L. (2006).  Statistics on Environmental Judgments by the EC Court of Justice.  Journal of Environmental Law 18(3): 407-421.

KRÄMER, L. (2008).  Environmental judgements by the Court of Justice and their duration.  Research Papers in Law, No. 4/2008.  College of Europe, Bruges.  www.coleurop.be/file/content/studyprogrammes/law/studyprog/pdf/researchpaper4_2008.pdf

LAW SOCIETY’S LAW REFORM COMMITTEE (2008).  Enforcement of Environmental Law: the Case for Reform.  www.lawsociety.ie/Documents/committees/lawreform/Envir%20Report.pdf

RPG (2009).  Renewed Programme for Government (10 October 2009).  www.taoiseach.gov.ie/eng/Publications/Publications_2009/Renewed_Programme_for_Government,_October_2009.pdf

UNECE (2004).  Paragraph 18 of the Annex to Decision I/7 Review of Compliance, adopted at the first meeting of the Parties held in Lucca, Italy, on 21-23 October 2002.  www.unece.org/env/pp/documents/mop1/ece.mp.pp.2.add.8.e.pdf

UNECE (2009).  Status of ratification.  www.unece.org/env/pp/ratification.htm

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Andrew L.R. Jackson (jacksoa1@tcd.ie)
Friends of the Irish Environment/
Department of Geography, TCD
An earlier version of this article appeared in Atlas (2010), TCD’s annual Geographical Journal.