European Union (EU) law drives much of what happens in the field of environmental protection on the island of Ireland. It often seems that whatever happens on this island to protect the environment is despite the practices, priorities, and policies of the national/regional governments.
The recent conference organized by the Irish European Law Forum, titled “Frontiers in European Law and Governance” and headed by Professor Suzanne Kingston of University College Dublin Law School, offered the opportunity to keep abreast of developments within the EU environmental legal regime and to assess where Ireland stands on some critical issues. The speakers included a very useful blend of “local” academic and other luminaries, and key players from the EU environmental stage. The conference attendees included academics, practicing lawyers, and some of the leading environmentalists and environmental agency staff.
The conference was organized around three current challenges in EU environmental law: what to do about climate change; how to integrate environmental considerations into other EU policy areas; and, how to improve environmental enforcement within the EU. Rather than summarise the presentations by each speaker, we will focus on certain themes that ran through the presentations and the question and answer periods during the day.
Naturally enough, much of the discussion centered on the challenges of confronting climate change impacts. As an initial comment, it was pointed out that the recession seems to have had a more noticeable impact on reducing Greenhouse Gas (GHG) emissions than the Kyoto Protocol.
What can the EU do about climate change?
There was broad agreement that the EU had been marginalized in the climate change negotiations in Copenhagen and had not yet figured out how to regain a central role. Some argued that a global agreement on climate change would happen only when the United States and China engage fully with the process, and that there is little the EU can do in the meantime.
Others argued that the EU does have opportunities to advance the process by aligning itself with a large group of the smaller developing countries, not including China and India, to experiment with and work through solutions and processes for collaboration between developed and developing countries. Such experimentation could focus on funding mechanisms and technology transfers to aid the developing countries in adaptation strategies. It is particularly important that the smaller developing countries be given a voice, or megaphone, to counter the emphasis on mitigation by the large developed countries in the high stakes climate change negotiations. Such collaboration could also push for stronger actions than the US and China is currently willing to accept.
Dr. Mary Robinson explored the work being done with Disaster Risk Reduction as an approach that shows much promise for helping developing countries help themselves in reducing the risks from climate change, and from other disasters. In this approach the at-risk countries are taught how to develop skills and infrastructure to prevent the next disaster, rather than the developing countries intervening in an emergency mode after a disaster has already inflicted its damages. An example included helping to develop early warning systems, community emergency response plans, and adapting houses in areas of Bangladesh that are vulnerable to cyclones.
It was suggested that the EU could sell itself as a pioneer in addressing climate change. It represents 27 different economies working together in a carbon-trading scheme and that experience could be useful to a large number of smaller developing countries. To hold itself out as a pioneer it would first be necessary for the EU to address the serious shortcomings of the Emission Trading Scheme that have surfaced over the past year, and increase compliance with its own environmental laws. Ireland of course serves as a prime example of a nation out of compliance with many EU environmental laws.
Others spoke of experimenting with Personal Carbon Trading (PCT), which has various forms but basically is a cap and trade where each adult is allocated emission credits which are spent on fuel, electricity or other goods. Those who need more can purchase them; those who can get by on less, can sell credits. Such schemes rest on the understanding that overconsumption, of energy and other resources, is exceeding the capacity of the planet to regenerate more resources. A form of PCT currently is being tested in an island off Australia.
Climate change implicates behavioral changes for each and every one of us, and the traditional understanding of consumer behavior is no longer useful. Law and policies have relied on the assumption that people know what is in their best interest and they act on those interests, when in fact people do hold mistaken beliefs and act on them, they do not always follow through even when they hold accurate beliefs, and self-defeating, even self-destructive, behavior is not uncommon. How we convince people to modify their behaviors to mitigate and adapt to climate change is the key challenge that law and policy have to understand.
One tool in this challenge that was discussed is Nudge Theory, which should get our support even if just for its name. Who can oppose nudging? The theory proposes that bad choices and laziness are a large part of what makes people human. Instead of appealing to voters’ self-interest, politicians must help to make personal and socially beneficial choices “easier.” The anti-smoking advertisements were offered to exemplify the theory in practice.
What can Ireland contribute?
One of the most interesting questions raised in the conference is that in light of the truly vast, sometimes overwhelming, and global reach of climate change as an issue, what can a small country like Ireland do? Perhaps the question gained some poignancy given the humbling experience of the recent EU-IMF intervention in Ireland’s economic affairs.
Several speakers suggested that while Ireland made only a small contribution to Greenhouse Gas (GHG) emissions, in terms of percentage of EU-wide or global impacts, Ireland has very high per capita emissions and farming contributes about 29% of the country’s GHG emissions, in contrast to 6% EU-wide. So while small in comparison with other EU countries, Ireland owes its share of effort to address climate change.
The question then was, what could it do? It was suggested that Ireland could set an example to other larger economies by acting as a laboratory for developing advances in areas where Ireland has some resources or assets. Research and development in wind energy and, particularly, wave and tidal energy are prime targets for Ireland’s talented academic, IT and technology communities.
Along with the EU, or independently of it, Ireland also could work closely with developing countries where Ireland has close historic ties through overseas aid, and refine ways of helping the developing countries with adapting to the effects of climate change. Large sums of money are not available for such work, even in the best of economic times in Ireland, but much can be done with little if there is willpower and imagination.
Discussant Sharon Turner of Queens University Belfast (QUB), Northern Ireland (NI), added an island-wide perspective. She noted that both parts of the island were lagging behind on embracing climate change issues or solutions and were adopting the position that it was for other, larger countries to sort out the climate change problems. The island suffers from energy insecurity, high fuel poverty, a traumatic economic collapse due in part from unsustainable development and excessive consumption, and faces projected expensive adaptation costs. Yet these experiences could offer valuable lessons for others. To advance climate change governance, the governments can take an all-island advantage of its small scale to experiment with solutions based on the island’s rich natural resources for alternative energy, to coordinate university interdisciplinary research on climate issues, and to build capacity within the island’s environmental Non-Government Organisations (eNGOs) to galvanize citizen activism.
In Ireland, a variation on the Personal Carbon Trading approach has already received support from Feasta, the Foundation for the Economics of Sustainability, which advocates a cap-and share scheme. The UK Climate Change Act, applicable to NI, allows for introduction of a PCT scheme without further primary legislation.
Ireland’s inglorious history of non-compliance with EU environmental laws was on full display in Liam Cashman’s review of the past twenty years. Despite this embarrassing history and the numerous legal actions that the Commission has had to take against the RoI, raised bogs continue to be destroyed from peat extraction in protected sites (and the new coalition government has signaled that it appears ready to endorse these destructive practices), agricultural run-off and urban wastewater discharges continue to threaten water bodies and drinking water, and it remains to be seen if planning abuses will be corrected, especially pressures on drinking water and septic systems from one-off housing. There have been positive moments such as the sensible ban on bituminous coal in Dublin in 1990, investments in wastewater treatment, and the beginnings of a network of protected nature sites. Yet these improvements likely would not have happened without the EU Commission initiating infringement actions against the RoI in these areas.
In 2008 the European Court of Justice (ECJ) ruled against Ireland on the use of retention permissions for quarries and other developments that should have been accompanied by an Environmental Impact Assessment (EIA), and raised concerns about granting immunity to quarries and industrial peat extraction plants if they were not prosecuted for more than seven years, a bizarre form of a sabbatical. Even though the Planning and Development Act was amended in 2010 to address these, and other environmentally abusive practices, we await the Department of the Environment to amend the appropriate regulations and otherwise implement the law some three years after the ECJ judgment. Recent statements from the new coalition government do not offer much encouragement in this area.
If Ireland’s non-compliance is distressing, there is not much relief by looking closely at the ability of the EU to meet its environmental targets. As Suzanne Kingston documented in her presentation, on sixteen environmental issues identified by the European Environment Agency (EEA) the EU has met its own targets in only three areas: GHG emission reductions by 20% by 2020; recycling; and pollution from point sources and bathing water quality.
To enhance enforcement, the Commission has embarked on a prioritization of breaches that will be pursued, in the environmental as well as other sectors, and is focusing on systemic rather than individual breaches. Priorities include a complaint about a broad systemic breach, breach of a particularly important directive or obligation, complaint about a large infrastructure, failure to comply with ECJ judgment, and others. As a result many noteworthy but non-systemic breaches will be overlooked, or given a minimal response. In an apparent trade-off, rules of pleading and evidence for systemic breaches have been relaxed allowing the Commission to make out a preliminary case and then to develop further evidence, with follow-up with eNGOs and other sources once it knows it can proceed with the case.
Another current development is the use of a EU Pilot scheme that relies on direct contact between the Commission and Member States and allows for direct contact between the Member State alleged to be in breach and the person(s) who lodged the complaint against the Member. While the procedure opens up the possibility of resolving matters quicker and with fewer resources, and shifts some burden to the Members, it also can lead the Commission to ignore complaints lodged by others since it will instead concentrate on cases that it initiates pursuant to its own priorities.
Questions were raised about Ireland’s non-compliance and why it took so long to come into compliance, and why Ireland has yet to ratify the Aarhus Convention. In turn, some questioned why it took the EU so long to take enforcement action against Ireland and others, and why penalties were so infrequently imposed. When the EU fails to impose substantial penalties, it ought not be surprised when Member States lag behind on compliance.
The delays inherent in relying on the EU Commission to solve our problems, and the reliance on systemic breaches, raised questions about the need for more enforcement by national agencies and more litigation by eNGOs in the national courts. It is clear the Commission prefers that route, but there are substantial barriers in Ireland including restrictive standing rules, potential exposure to very high legal costs, and significant time lags before a judgement can be obtained.
Since 1987 the EU treaties have required that environmental requirements be integrated into other EU policies. Article 11 of the Treaty on the Functioning of the European Union (TFEU) requires that “environmental protection requirements must be integrated into the definition and implementation of all Community policies and activities to promote sustainable development.” Despite adoption of this sweeping objective or policy, integration remains more inspirational than operational. There are instances when the intent has been to incorporate environmental requirements into other policies, such as in the Common Fisheries Policy and energy policy. But there are areas that remain largely untouched by environmental concerns, such as transportation, regional, and development policies. The failure of the EU to adopt any specific structures to accomplish the integration has consigned it to limbo.
The Common Agriculture Policy (CAP) is an area where there is an apparent integration and this was the subject of a separate presentation, by Professor Joseph A. McMahon of UCD School of Law, that offered a valuable summary of the CAP regime and what changes currently are being considered for the CAP. While the second pillar of payments to farmers requires enhancement of environmental protection practices, the core of the CAP remains, certainly for farmers, price support and production control measures, i.e., those measures that preserve farmers’ income.
Part of the obstacle to full integration is that the agriculture sector is subject to pressures and demands for other than environmental concerns such as increased competition from open international trading, the need to feed an expanding population, in the EU but also world-wide, and the policy of assuring that rural communities remain viable. The concern is that these other demands will result in expanded production that in turn will create more impediments to sustainable farming and climate change reforms.
It is not a secret that many outside the farming community are concerned about the financial support that farmers get from the EU budget (now almost half of the budget but projected to decrease to a third by 2013), and how farming operations negatively and seriously affect the climate. It may well be that the farming community buys into environmental considerations, perhaps reluctantly, in part to garner support from the wider community and to stave off more intense criticism. This would seem to offer a shared interest between the environmental and farming communities, a shared interest that needs to be nurtured more.
Access to Justice
A central concern expressed throughout the conference was the extent to which laws and policies regarding climate change mitigation and adaptation serve justice as well as the law. Many agreed that law and justice do not always meet and often conflict.
Any discussion of the law and policy of climate change raises the issue of equitable distribution of the benefits and costs. Most often this issue is discussed in terms of what developed countries can or should do for poorer developing countries to offset the consequences of the developed countries’ reliance on cheap fossil fuels to drive their economies, and pollute the entire globe. What should the law do for these vulnerable nations? Alan Boyle provided a review of the legal theories under which people at risk from climate change could pursue legal remedies to address those risks. Running through almost every legal avenue, Boyle concluded that there was little the law had to offer litigants in this context except perhaps the Law of the Seas or the World Trade Organisation. The talk on overconsumption, and Personal Carbon Trading schemes, discussed equity considerations in these areas. And Dr. Mary Robinson’s talk focused on the work of her new Foundation on Climate Change and Justice.
A number of participants questioned some of the relied-upon economic analyses that have led to unsustainable development and advocated a decoupling of prosperity and growth (which carries high emissions with it). The UK Sustainable Development Commission report Prosperity Without Growth by Tim Jackson has received much attention on this issue. See “Sources” below.
A consensus was clear that it was about time Ireland ratified the Aarhus Convention to further public participation in oversight of both national and local government authorities. Ireland is the only EU country that has not ratified it. There certainly exists a need for increased oversight and training for local authorities and more resources for EPA to enforce against local authorities.
A common theme in presentations and discussions was the belief that we need to speak about climate change challenges as an opportunity rather than as an unsolvable problem. Decarbonising the energy system and creating a green economy provide significant job opportunities and health benefits, as well as assist us in meeting our obligations under EU law to reduce GHG emissions.
See Andrew L.R. Jackson, The Emerald Isle? Ireland’s environmental compliance record in cross-EU terms in the Articles section of irish environment (June 2010).
An Interview with Sharon Turner, QUB, and one of the Discussants at the conference, can be seen in the Podcast section of irish environment
On the issue of decoupling prosperity and growth, see the Interview with Dr. John Barry, QUB, in the Podcast section of irish environment
Cap and Share:
Tim Jackson, Prosperity Without Growth, UK Sustainable Development Commission (2009). The Commission has been disbanded by the current coalition government so it is not clear how long the following link will be operative.
Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (Penguin Books, 2009).
“EU concerned over unauthorised retention of quarries,” The Irish Times, 21 March 2011 at www.irishtimes.com/newspaper/ireland/2011/0321/1224292707676.html