Flower Power - Environmental Impact Assessments

Author:Ms Cian MacGinley
Profession:Eversheds O'Donnell Sweeney
 
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A recent ruling of the European Court of Justice (ECJ) has been widely welcomed by environmental activists and campaigners in Ireland. This ruling reverses a decision of the Irish Supreme Court and should provide fresh impetus for the newly elected Irish government to reconsider how Ireland assesses the impact of major projects or developments on the environment.

EU Directive

Directive 85/337/EEC, which is commonly known as the Environmental Impact Assessment Directive (the "Directive"), requires member states to establish a procedure whereby the effects of major projects will be assessed prior to commencement in order to mitigate any consequential and harmful environmental effects.

Ruling

The ECJ found that Ireland had failed to sufficiently transpose the Directive into Irish law. Furthermore, Ireland's implementation of the Directive through the Irish Planning Acts did not attain the result pursued by the Directive.

Whilst this was both a complex case and ruling, the notable parts of the judgment are as follows:

Ireland failed to properly transpose parts of the Directive; and Ireland failed to ensure that the Directive was completely fulfilled when divided among two or more government agencies with decision making powers. 1. Failure to properly implement the Directive

The Directive requires obligatory assessments by competent authorities of the environmental impact of certain projects given their "nature, size or location" prior to granting permission for such developments. These projects would include, for example, the construction of rail networks, airports, motorways and other projects considered as having significant effects on the environment. A project is said to have a significant effect if there is a risk it will cause "a substantial or irreversible change".

Environmental Impact Assessments should identify, describe and assess the direct and indirect effects of a project on:

human beings, fauna and flora; soil, water, air, climate and the landscape; material assets and the cultural heritage; and any interaction between the above subjects. The ECJ ruled that what constitutes an Environmental Impact Assessment is of pivotal importance and therefore must be transposed explicitly. Furthermore, the ECJ held that the Irish competent authority must undertake both an investigation and an analysis to reach as complete an assessment as possible of the direct and indirect environmental effects of the project.

Although the Irish...

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