1. TOM FLYNN BARRISTER–AT-LAW Reform of Environmental Law in Ireland - Some Key Issues 1

2. Introduction An exploration of a number of key issues in context of an agenda reform of Irish environmental law ‘environmental law’ – widely defined as encompassing planning law Not a comprehensive of systematic analysis but rather a focus on a number of key issues in the context of agenda for reform of environmental law in Ireland Is there an appetite for reform of Irish environmental law ? 2

3. The key issues The urgent requirement for a consolidation of Irish Environmental Legislation The need for reform of the Environmental Impact Assessment Process The need for a re-evaluation of the relationship between land-use planning and environmental controls The inadequacy of the current regulatory framework 3

4. Consolidation of Irish environmental legislation A fundamental problem – statute book is a mess ! Key Problem – excessive use of poorly drafted secondary legislation to transpose EU law coupled with amendment of primary legislation by secondary legislation Result – a fragmented & piecemeal legislative framework – presents a barrier to individual citizens Problem recognised – EPA Agency Review Report some attempts to address problem – Law Reform Commission restatement – and ‘unofficial’ consolidations Solution – a programme of consolidation of environmental legislation 4

5. Need for reform of EIA Process 5 EIA - as currently structured a ‘developer led’ process perceived as lacking in independence Case C-50/09 – CJEU held Ireland non-compliant with EIA Directive as the competent authority itself must conduct the EIA Amending legislation introduced to clarify but unlikely to result in significant change to practice A more radical proposal – involve independent authority in EIA process to prepare EIS Would require significant changes in existing practice & law” Inject much greater independence into entire EIA process

6. Land-use planning and environmental controls Current system – land-use planning and environmental controls essentially operate separately and in parallel A dual consent procedure EPA – IPPC/Waste Licensing – ABP/LA - Planning control Has proved problematic in the past – Martin v ABP Case C -50/09 – highlights potential problems Current system does not allow for a proper integrated assessment Case for an integrated development consent process? 6

7. A revised regulatory framework Current regulatory framework emerged in an ‘ad hoc’ manner not from a systematic considered analysis of what is required Result is a fragmented regulatory and administrative framework of environmental governance. Is fit for purpose ? Many anomalies exist Multiple bodies with significant overlapping/mixed functions and competences What is required – an accountable, fair, accessible, and efficient regulatory framework 7

8. A revised regulatory framework 8 Need a separation of the decision and appeals process – establish quasi-judicial independent appeals tribunal with mixed legal/expert competence Large scale infrastructural projects to be determined by as part of a unified process and ideally a single body – appeal to tribunal Enforcement – expand remit of OEE to planning Establish an environmental court ? – no just divisions/lists within current structure

9. CONCLUSIONS 9 Key issues highlighted if addressed would significantly reform Irish environmental law Not excluding need for reform in other areas of Irish environmental law such as access to justice, environmental information Not my concluded view – designed to provoke debate Key question - Is there the social and political appetite for reform ? Need is for coherent reform