Clarifying the Scope of the Aarhus Convention: High Court of Ireland's Ruling in Enniskerry Alliance & Protect East Meath Ltd v. An Bord Pleanála

Introduction

The High Court of Ireland delivered a significant judgment on June 10, 2022, in the case of Enniskerry Alliance & Anor v. An Bord Pleanála & Ors and Protect East Meath Ltd v. An Bord Pleanála & Ors ([2022] IEHC 338). This case centers on challenges to planning permissions granted by An Bord Pleanála (the Planning Board) for two separate developments: the construction of residential units and associated facilities in Enniskerry, Co. Wicklow, and Drogheda, Co. Louth. The primary legal contention revolves around the liability for costs in judicial reviews of these planning decisions, particularly in light of EU environmental law and the Aarhus Convention.

Summary of the Judgment

The applicants, Enniskerry Alliance and Protect East Meath Ltd, sought protective costs orders under sections 50, 50A, and 50B of the Planning and Development Act 2000 and related acts. These sections pertain to the allocation of costs in judicial reviews concerning environmental law. The High Court addressed multiple questions of European law, particularly interpreting the obligations under the Aarhus Convention as integrated into EU law. The court ultimately referred seven critical questions to the Court of Justice of the European Union (CJEU) for preliminary rulings, seeking clarity on the interpretation and application of EU environmental law within Irish domestic law frameworks.

Analysis

Precedents Cited

The judgment extensively references key EU directives and case law that shape the interpretation of national environmental obligations. Notably:

Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora.
Directive 2001/42/EC on the assessment of environmental effects.
Case C-470/16 North East Pylon Pressure Campaign Ltd v. An Bord Pleanála, which established interpretative obligations for national courts concerning environmental law.
Aarhus Convention, particularly Article 9, which emphasizes access to justice and cost implications in environmental matters.

These precedents influence the court's approach to determining whether national procedural laws align with EU environmental objectives, particularly regarding the predictability and affordability of legal proceedings for environmental challenges.

Legal Reasoning

The court's reasoning centers on whether Irish national law sufficiently aligns with EU environmental law obligations, especially those emanating from the Aarhus Convention. The High Court evaluated whether national procedural rules for awarding costs in environmental judicial reviews are clear and predictable, ensuring that litigation is not prohibitively expensive. The court identified ambiguities and uncertainties in Irish law concerning the Not-Prohibitively-Expensive (NPE) costs rule, questioning its compliance with EU principles of legal certainty and access to justice.

To resolve these uncertainties, the court referred seven intricate questions to the CJEU. These questions delve into the extent of the interpretative obligations of national courts under EU law, the scope of EU environmental law in relation to national laws, and the impact of legal principles like stare decisis on the ability of national courts to seek CJEU interpretations.

Impact

This judgment has profound implications for future environmental litigation in Ireland and potentially other EU member states. By seeking a CJEU ruling on the interpretation of EU environmental obligations within national law, the High Court aims to clarify the extent to which national procedural laws must align with EU directives and international conventions like Aarhus.

If the CJEU rules that national courts must interpret procedural laws in a manner consistent with the Aarhus Convention across all facets of environmental law—not limited to specific directives—this could lead to significant reforms in how costs are allocated in environmental judicial reviews. It would enhance access to justice for environmental applicants by ensuring that litigation costs do not become a barrier, thereby strengthening environmental governance and compliance with EU law.

Complex Concepts Simplified

Aarhus Convention

The Aarhus Convention is an international treaty that grants the public rights regarding access to information, public participation, and access to justice in environmental matters. Article 9 specifically deals with the costs associated with legal proceedings, ensuring that individuals and organizations can challenge environmental decisions without facing prohibitive expenses.

Not-Prohibitively-Expensive (NPE) Rule

The NPE rule determines whether the costs of bringing a legal challenge are so high that they deter applicants from seeking judicial review. Under this rule, if litigation costs are deemed not prohibitively expensive, the applicant may be liable for some costs if unsuccessful. Protective costs orders can shield applicants from such liabilities, promoting greater participation in environmental decision-making.

Article 267 TFEU

This article allows national courts to refer questions regarding the interpretation or validity of EU law to the CJEU. Such references ensure uniform application and understanding of EU law across all member states.

Conclusion

The High Court of Ireland's judgment in Enniskerry Alliance & Protect East Meath Ltd v. An Bord Pleanála underscores the intricate interplay between national laws and EU environmental directives. By referring critical questions to the CJEU, the court seeks to bridge gaps in legal interpretations that could hinder effective environmental governance. The potential clarification on the scope of the Aarhus Convention within national legal frameworks could significantly enhance access to justice, ensuring that environmental protections are both robust and accessible. This judgment not only impacts the immediate parties involved but also sets a precedent for how environmental litigation costs are managed within the EU, promoting greater environmental accountability and public participation.