“I’m Still Standing”


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DÁIRE MCMULLIN*

The development of citizen environmental action in Ireland has constantly been beset by procedural problems. The modern zeitgeist of access to justice has led to fundamental changes to the rules of standing in the adjudication of environmental matters. The standard recourse for citizen led environmental litigation in Ireland is through judicial review of administrative action. Traditionally, judicial review involves a claim that an administrative body has intruded upon an individual’s common law rights, a Court would then assess whether there was a statutory authorisation for this infringement of rights. Sunstein argues that this was motivated by a desire to harmonise public law adjudication with the private law sphere.[1] This analogy led to the individualisation of public law which was problematic on several grounds. The most pressing of which was the absence of a distinctive set of principles governing standing.

The purpose of judicial review is to question the legal validity of a particular administrative decision. It is not the role of judicial review to question whether an individual’s rights have been infringed by a particular action. Asking whether a decision is lawful or not is much broader than an individual right to sue, and thus the private law rules of standing cannot harmonise with public law.[2] Public law rules of standing had to be developed that both limited the availability of vexatious challenges and respected the general public interest in upholding the law. A further problem arose in an environmental context. Traditionally judicial review was developed to accommodate bipolar disputes, however environmental disputes are, by their very nature, polycentric.[3] Environmental actions involve a myriad of interests and actors and adjudicating a wide range of policy considerations. In this manner, imputing these narratives of access to justice into traditional judicial review is somewhat like putting the engine of a Tesla into a Model T-Ford – in many ways we are asking judicial review to act as a system of adjudication for disputes that it was never designed to accommodate.

This begs the question of whether judicial review can act as a legitimate bastion of environmental protection. It is submitted that citizen focused judicial review of environmental disputes cannot serve this purpose in an Irish context. The recent judgment Grace & Sweetman v. An Bord Pleanála,[4] shows the ineffectiveness of recourse to citizen action through judicial review. It will ultimately be concluded that this type of citizen action stymies sustainable development rather than encouraging it.

 

  1. ACCESS TO JUSTICE

The law on standing in judicial review proceedings has experienced several fundamental changes in the last forty years. This evolution began with the commencement of Order 84, r.20(4) of the Rules of the Superior Courts which provides that leave of the court for judicial review may only be granted where the applicant ‘has a sufficient interest in the matter to which the application relates.’ [5] The illusory and anomalous term ‘sufficient interest’ is used as the yardstick for determining questions of standing in judicial review. As Hogan and Morgan suggest, [6] this standard broadly follows the test for standing in constitutional matters established by the Supreme Court in Cahill v. Sutton. [7]  The general principle that can be derived from that case is that an individual will generally have to show that the decision of an administrative body has or imminently will ‘adversely affect’ their interests causing or potentially causing injury.[8] As with all standing rules, the clear policy consideration here is limiting spurious litigation.

Turning then to environmental matters, a special judicial review procedure applies to decisions made, and acts done, by planning authorities. This procedure is set out at s.50 of the Planning and Development Act 2000. This procedure differs from traditional judicial review in several key respects: there are stricter time limits, different and more demanding notice requirements, and the right of appeal to the Supreme Court is very limited. [9] The most significant change that s.50 brought about, however, is the introduction of a ‘sufficient interest’ standard for standing. Although, the Oireachtas gave no indication in the legislation of what this standard meant, the clear implication was that it was to introduce an alternative to the standard under Order 84. Indeed, this standard was interpreted very restrictively in a number of judgments of the High Court.[10] In any case, the standard was amended in s.20 Environment (Miscellaneous Provisions) Act 2011 which reverted the standard to the traditional ‘sufficient interest’ requirement in Order 84. The motivation behind this was clearly that the existing standard would have violated the access to justice requirement in Article 9 of the Aarhus Convention.

 

  • The Transformative Nature of the Aarhus Convention

 

The access to justice limb of the Convention does not involve an autonomous European/International law requirement but rather allows member states to maintain their existing standing rules, provided that they are not so restrictive as to prevent a citizen’s ‘wide access to justice.’ It was never intended that there would be no requirement for national courts to change their methods of adjudication. The two provisos to the maintenance of this autonomy are the principle of equivalence and the principle of effectiveness. Equivalence requires that national procedural rules should be no less favourable than those applied in domestic law actions.[11] Effectiveness requires that the aforementioned procedural rules do not make the protection of Convention rights overly difficult. [12] Notably, in 2003 the Commission sought to make the provisions of the Aarhus Convention more prescriptive by making them directly effective in member state legal systems.[13] This proposal never passed largely because it threatened the independent procedural autonomy of member states. [14]

It should be noted that the standard used in the English version of the Convention is ‘substantial interest.’ [15]Thus, there was clearly no explicit obligation that the Irish Courts would amend the ‘substantial interest’ standard. Indeed, it would be difficult to see how a European court or compliance committee could criticise the use of the term ‘substantial interest’ if it was interpreted broadly. Sufficient interest is just as vague as substantial interest – this standard was simply given an inappropriately narrow interpretation by the Irish courts.

 

  • The Debate on Standing and Access to Justice in Ireland

Environmental public interest litigation is a relatively modern phenomenon in Irish law. While standing remains a central component of the debate on citizen action environmentalism in Irish law, it is also true that changes to the law of standing will have very little effect if the litigants cannot afford the price of this litigation. The longstanding rule in common law jurisdictions is that at the conclusion of the litigation costs will be awarded to the party who has succeeded in the proceedings. Article 9(4) of the Aarhus Convention mandates that environmental public interest litigation should not be ‘prohibitively expensive.’[16] Traditionally, this litigation in Ireland has always been so. There can be little doubt that the fear of substantial costs has inhibited litigants in taking these cases to Court. In Commission v Ireland, [17]  the Court of Justice determined that the discretionary practice of an Irish court declining to award costs to the successful party in a particular case violated the principle of legal certainty. They did, however, confirm that the Convention did not prevent a national court from rewarding costs against such a litigant; the Convention merely requires that these costs should not be prohibitive. The Court did not, however, discuss the concept of ‘prohibitive costs’ and what it entails.

The Court of Justice provided a more in-depth analysis of the prohibitive costs requirement in the English case of R(Edwards) v Environment Agency. [18] In assessing the elements of the requirement, the Court drew an analogy with the right to an effective remedy enshrined in Article 47 of the EU Charter. The Court concluded that the general principle should be that a party should not be inhibited from taking an action because of the ‘financial burden that may arise as a result.’ [19]In assessing this burden, the Court indicated that the national court should have regard to the interest of the litigant in defending his or her rights as well as the general public interest in protecting the environment.[20]  Ryall argues that the Court of Justice will eventually be called upon to consider whether the ban on prohibitive costs will require member states to provide civil legal aid for these types of actions. [21]

A further question arises in this context, whether this level of spending is justified at all and whether there should be an alternative avenue for the adjudication of these disputes; for example a specialist environmental court. Peter Sweetman has now taken over five hundred cases against various developments throughout the country.[22] These disputes have not only cost the state an exorbitant amount in legal fees but have also served to halt developments that are beneficial to the environment; an example being Mr Sweetman’s objection to several wind farm developments. This begs the question, what sort of environmental advocacy do we want to support? These issues were brought quite starkly to the fore in the recent Grace & Sweetman case. [23]

 

  1. SWEETMAN – A QUESTION OF STANDING

The recent Grace & Sweetman case concerned an objection to the proposed development of a wind farm in an area known to be a habitat of the hen harrier. The central question – whether the Irish rules relating to standing in environmental matters had to be revised in the light of recent jurisprudence from the Court of Justice. Clarke and O’Malley JJ in a joint judgment of the Supreme Court distilled the question of standing to three fundamental questions:

‘(a) The issue of the limits of standing in judicial review challenges generally;

(b) The application of the general principles identified in (a) in the case of environmental challenges; and

(c) Whether the position in national law identified as a result of (a) and (b) requires to be modified in the light of the “wide access to justice” requirement specified in Article 11.’ [24]

In discussing (a) and (b) the Court set out the relevant background to the question of standing. Specifically, the Court honed in on the question of whether prior participation in the planning process was a prerequisite in order to have standing to judicially review a decision. The Court noted the lack of clarity in the jurisprudence on this point, but had particular regard to Chambers v An Bord Pleanála,[25] where the Supreme Court held that the members of an environmental pressure group had standing despite the fact that they did not take part in the planning process. The Court further emphasised the importance of the nature of a particular development i.e. a monument of national and international importance will confer standing on a wider range of people. [26] As to (c) the Court was of the view that the national standing rules were framed sufficiently broadly to be interpreted in line with the Convention. Ultimately, the Court indicated that they did not need to consider whether a modification of the principle was necessary as the application of the traditional Irish rules of standing would suffice on the facts. In the Court’s view, recourse to EU law would only need to be sought where the application of national law would be insufficient.

The Court further indicated the importance of protecting against the development of an actio popularis that would make standing rules simply a nullity. The Court then, in deriving a principle from the precedent, suggested that certain proximity to a proposed development gives one standing. Following on this assertion, the Court examined the position of the two Appellants, stating that while it is not clear whether Mr Sweetman had standing, it is clear that Ms. Grace by virtue of her proximity to the proposed windfarm had the requisite standing to bring a claim.

 

  • THE IMPLICATIONS OF GRACE & SWEETMAN

It is quite difficult to derive a clear principle from Grace & Sweetman. It was hoped that it would clarify the position on standing in environmental matters in this jurisdiction, however, that was clearly not the case. Rather than entering into an analysis of whether Mr Sweetman has standing in a case such as this one, the Court simply stated Ms. Grace did have such standing by virtue of her proximity to the development. This has clearly served to undermine the very normative basis upon which the rules of standing are premised. If the purpose of having rules of standing is to prevent spurious litigation then these rules should be enforced. Mr. Sweetman’s litigation over the past ten years is the very definition of actio popularis, however, it should be noted that it is certainly not in the spirit of such an action. In Roman law, an actio popularis was a novel invention of an ancient democracy to allow an individual to challenge a matter in the general public interest.[27] This element of challenging a decision in the public interest is clearly at the heart of the Aarhus Convention.

 

CONCLUSION

Thus, it really must be asked whether Mr. Sweetman’s challenges are really in the public interest. Irish environmental law relies on citizens to challenge these decisions, and there can be little doubt that Mr. Sweetman is the most voracious user of this avenue. Clearly, though his decisions are not always in the interests of the environment. His cases tend to be challenges to all windfarm developments and while it is accepted that some of these are very laudable challenges to protect the habitats of certain species; there can be little doubt that an objection to all windfarm developments stymies environmental progress. This brings out the central criticism of Mr. Sweetman’s challenges and citizen environmental action in Ireland more generally; that it allows individuals to effectuate spurious litigation and moreover, and perhaps more worryingly, that we rely on this litigation. The Supreme Court in Grace & Sweetman had the opportunity to set down clear principles for the rules of standing in environmental matters. These principles could have put a stopper on spurious litigation whilst promoting the wide access to justice of environmental challenges. It is regrettable that the Court did not do so.

 

* LL.M Candidate, University of Edinburgh.

[1]  Cass Sunstein ‘Standing and the Privatization of Public Law’ (1998) 88 Colum LR 1432.

[2] Christopher Stone, ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’ (1972) 45 S Cal L Rev 450.

[3]  Abram Chayes, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harv 1281.

[4] Grace & Sweetman v. An Bord Pleanála [2017] IESC 10.

[5]  Rules of the Superior Courts, Order 84, r.20(4).

[6] Hogan and Morgan, ‘Administrative Law in Ireland’ (Round Hall 2012) 899.

[7]Cahill v. Sutton [1980] IR 269.

[8] Garrett Simmons, ‘Planning and Development Law’ (Round Hall 2007) 598.

[9] ibid.

[10] Murphy v Wicklow County Council, (HC, March 19 1999); Lancefort Ltd. v An Bord Pleanála [1999] 2 IR 270.

[11] Peterbroeck, Van Campenhout & Cie SCS v Belgian State C-312/93.

[12] Pavlos Eleftheriadis, ‘Environmental Rights in the EC Legal Order’ (2007) 26 YEL 297, 307.

[13] Eleftheriadis (n 12) 307.

[14] ibid.

[15] Art. 9 Aarhus Convention available at <https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf> accessed 4 April 2017.

[16] ibid.

[17] Commission v Ireland Case C-427/207.

[18] R(Edwards) v Environment Agency Case C-260/11.

[19] R(Edwards) v Environment Agency [2010] UKSC 57, [2011] 33.

[20]  Áine Ryall ‘Access to Justice in Environmental Matters’ Lecture given to the Irish national conference on the Aarhus Convention available at <http://environmentaljustice.ie/wp-content/uploads/2014/01/Aine-Ryall-ICEL-AEAJ-paper-Dublin-13-September-20131.docx> accessed 5th April 2017.

[21] ibid.

[22]<http://www.courts.ie/courts.ie/library3.ns/(GlobalSearch)?Openagent&SearchTerm=sweetman&Scope=GLOBAL&l=en&id=178> accessed 5 April 2017.

[23] Grace & Sweetman (n 4) 3.

[24]  ibid .

[25] Chambers v An Bord Pleanála [1992] IR 134.

[26] Mulcreevy v. An Bord Pleanála [2004] 1 IR 74.

[27] Egon Schwelb, ‘The Actio Popularis and International Law’ 2 Israel Yearbook Human Rights 46,47 (1972).

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