The Green Wall: Access to Environmental Justice in Ireland by Eoin Jackson [Page

The Green Wall: Access to Environmental Justice in Ireland

By Eoin Jackson, SS Law

This article will address the lack of access to environmental justice within the Irish legal system. Part I highlights the financial barriers present for environmental activists. Part II discusses the lack of specialist knowledge on environmental matters and the subsequent impact this can have on ecological cases. Part III proposes the establishment of a dedicated Irish Court of Environmental Justice to ensure an appropriately ecocentric legal framework exists, conducive to an accessible justice system.

I. The Financial Barrier to Environmental Justice

A primary barrier to environmental justice is the cost of litigation. Ireland does not provide civil legal aid for cases typically concerned with environmental justice, such as those pertaining to planning, pollution control or attempts to encourage a better climate response. Costs can run into the hundreds of thousands and there is a legitimate concern that the loss of a case could result in the financial demolition of environmental activists. For example, in the case of FIE v The Legal Aid Board [2020], it was determined that the plaintiff, an environmental activist NGO, was not entitled to legal aid on the basis that an NGO is not a natural person. Consequently, environmental justice suffers from being unable to have its representatives advocate through the courts without serious financial risks. It should be noted that these cost barriers could be seen as being in contravention to the Aarhus Convention. The Aarhus Convention, which Ireland ratified in 2012, mandates access to justice in environmental matters. It outlines access to environmental information as a right and offers a ‘check’ on policymakers by encouraging a right to review procedures to ensure their environmental compatibility. Despite efforts to implement the Convention’s measures, this has only been achieved where the matter concerns EU law. Thus, little assistance is available to a marginalised community seeking to challenge local environmental issues or the government’s response to climate change.

II. The ‘Knowledge’ Barrier

Environmental justice also suffers from the lack of specialist knowledge often experienced by local communities and public interest lawyers. The complex swathe of international, EU and national legislation on the environment requires a high degree of training and specialisation. Indeed, comparative reports have demonstrated a belief that the overly technical nature of environmental law makes it a much more difficult area for public interest lawyers as opposed to more common issues such as employment law and family law. Furthermore, the field may require experts such as climate scientists to present evidence before the court, which ultimately adds to the aforementioned cost barrier.

In an Irish context, it is argued that this ‘knowledge’ barrier has been exacerbated by the relative absence of lawyers specialising in environmental justice. Up until the establishment of the Centre for Environmental Justice in 2021, there was no public interest group dealing specifically with these issues. This ‘knowledge’ barrier is compounded at a judicial level, given the nonexistence of any specialist court dedicated to environmental and planning issues. This has proven to be effective in overcoming ‘knowledge’ barriers through specialisation and training for judges within such a court.

III. Proposed Solution - An Irish Court of Environmental Justice

The proposed solution to this issue is the establishment of a dedicated Court of Environmental Justice. This Irish ‘Green Court’ could draw on the approach taken in comparative jurisdictions, such as the Philippines,

by employing judges with specific training on environmental matters. From a financial perspective, the Court could further be equipped to recognise environmental NGOs as natural persons for the purpose of allowing access to legal aid. This would encourage marginalised communities to challenge environmental concerns before the Court through the potential funding of environmental organisations such as the Centre for Environmental Justice. Additionally, a more liberal approach to protective cost orders could serve to assuage fears of financial harm in the event that a case is unsuccessful.

The constraints of a traditional court can be set aside, given this breaking down of financial barriers only applies in the specific context of environmental litigation. This avoids floodgate concerns without compromising on the need for financial flexibility in environmental litigation.

The knowledge barrier can also be addressed through a more environmentally-conscious interpretation of cases, which can be linked to the Court’s wider degree of expertise. There is the potential to expand on the number of remedies available to Irish judges within this Green Court. For example, the Philippine environmental court allows communities to petition for the suspension of activities harmful to the environment. Additionally, it could adopt a relaxed approach to standing, conducive to the increased recognition of environmental activism. Thus, the initial issue of having to introduce judges to a complex area of law before the environmental matter in question can be appropriately argued before the Court would be avoided. This ensures that the Judiciary can adopt an ecocentric approach to resolving cases, thereby widening access to justice for the community at large. By placing all sides on an even knowledge platform, an educative barrier dissipates, which in turn encourages public involvement with developing approaches to future ecological policy.

It could be argued that a Green Court is unfeasible and unnecessary to establish to resolve these issues of access to environmental justice. However, comparative experience as evidenced by the Philippines has demonstrated that Courts of this nature lead to increased environmental ligation from communities that would otherwise be excluded from ecological discourse. Additionally, a Green Court would align with the obligation to increase access to environmental justice as mandated by the Aarhus Convention. Furthermore, the current Irish government has committed to establishing a wing of the High Court dedicated to environmental litigation. While not entirely synonymous to an independent Green Court, it does highlight the political and economic feasibility of its implementation.

Conclusion

In conclusion, access to environmental justice remains a pressing issue within Irish jurisprudence. An Irish Court of Environmental Justice, equipped with a financial toolkit and appropriate expertise, would allow for broader recognition of environmental justice. This Court is both legally and politically feasible, and should be enacted as it would be a useful starting point to overcoming barriers to environmental justice.