NO2GM Ltd v Environmental Protection Agency and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 28 August 2012
• Neutral Citation: [2012] IEHC 369
• Court: High Court
• Date: 28 August 2012

NO2GM Ltd v Environmental Protection Agency

IN THE MATTER OF AN INTENDED CHALLENGE TO A DECISION OF THE ENVIRONMENTAL PROTECTION AGENCY DATED THE 25 TH JULY 2012

BETWEEN/

NO2GM LTD.

APPLICANT

AND

ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

AND

TEAGASC

NOTICE PARTY

[2012] IEHC 369

[No. 305 MCA/2012]

THE HIGH COURT

Environment - Crops - Genetically modified forms - Permission to release crops granted by respondent - Challenge to decision - Application for costs

Facts: The respondent had exercised the powers available to it under the Genetically Modified Organisms (Deliberate Release) Regulations 2003 to permit the release of a genetically modified potato crop. The applicant sought to challenge this decision within the time frame specified by statute, and in the instant hearing applied for a cost order pursuant to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998 ("Aarhus Convention"), recently ratified by the State in June 2012.

Held by Hogan J, that the mere ratification of a convention did not in itself incorporate the convention into domestic law. Firstly, the date of commencement of the Aarhus Convention was stated to be ninety days after the deposit of a notice of ratification. In the State's case, commencement therefore would not be until October 2012. Secondly, the Aarhus Convention had not been approved by the Oireachtas as part of domestic law as required constitutionally. The Aarhus Convention could only apply therefore in so far as permitted by EU law.

The Court considered the relevant directives and case law, and stated that costs orders were permitted in such applications as the present provided they were "not prohibitively expensive." Clarification of the meaning of that phrase had been requested by the UK Supreme Court. Pending that clarification, and as the other parties in the case had not been fully heard, the Court refused the order sought by the applicant. Case C-427/07 Commission v Ireland [2009] ECR I-6277 and R. (Edwards) v Environmental Agency [2010] UKSC 57 considered.

GENETICALLY MODIFIED ORGANISMS (DELIBERATE RELEASE) REGS 2003 SI 500/2003

BATTLE v IRISH ART PROMOTION CENTRE LTD 1968 IR 252

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(10)

PROTECTION OF THE ENVIRONMENT ACT 2003 S15

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9(4)

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9(2)

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 6

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ANNEX I

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 20(3)

CONSTITUTION ART 29.6

EEC DIR 2003/35

EEC DIR 2011/92 ART 11(1)

EEC DIR 2011/92 ART 11(4)

EEC DIR 2008/1 RECITAL 26

EEC DIR 2008/1 ART 16

CMSN v IRELAND 2009 ECR I-6277 2011 3 CMLR 46 2010 ENV LR 8

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

EDWARDS & PALLIKAROPOULOS v ENVIRONMENT AGENCY & FIRST SECRETARY OF STATE FOR ENVIRONMENT OJ C 226/16 30.7.2011 (CASE NO C-226/16)

R (EDWARDS) v ENVIRONMENT AGENCY 2011 1 WLR 79 2011 1 AER 785 2011 2 COSTS LR 151 2011 ENV LR 13 2010 UKSC 57

CONSTITUTION ART 34.1

K (D) v JUDGE CROWLEY & ORS 2002 2 IR 744 2003 1 ILRM 88 2002/14/3380

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41(2)

1 JUDGMENT of Mr. Justice Hogan delivered on 28th day of August 2012.

2 1. On the 25 ^th July, 2012 the Environment Protection Agency ( EPA) made a decision in the exercise of the powers conferred on it by the Genetically Modified Organisms (Deliberate Release) Regulations 2003 (S.I. No. 500 of 2003) granted a consent to Teagasc, Oak Park, County Carlow to carry out the deliberate release of certain genetically modified potato lines subject to certain conditions. The applicant is a limited company which seeks to challenge the validity of this order, albeit that no proceedings have yet been commenced by it.

3 2. In this application the company was represented by Mr. Percy Podger, who -as he freely admitted to me - is neither a solicitor or counsel. As a concession and a courtesy to the applicant, I permitted Mr. Podger to be heard, but I express no view as to whether he was lawfully entitled to represent the company in this manner, whether by virtue of being a McKenzie friend or otherwise. Indeed, it would seem that from the decision of the Supreme Court in Battle v. Irish Art Promotions Ltd. [1968] I.R. 252 that a limited company cannot be represented in this fashion and that in "seeking incorporation [the subscribers to the company] thereby lose the right of audience which they would have as individuals": see peró Dálaigh C.J., [1968] I.R. 252, 254.

4 3. It must furthermore be an open question as to whether a limited company would have standing to challenge such a decision of the Agency, at least in the absence of evidence that its commercial interests had been adversely affected. Other than noting this issue it is, perhaps, unnecessary to express any view on it.

5 4. This judgment otherwise follows the same format and style as the lead judgment delivered in the application brought by Thomas O'Connor [2012, 295MCA].

6 5. One immediate complication for the company is that s. 87(10) of the Environmental Protection Agency Act 1992 (as inserted by s. 15 of the Protection of the Environment Act 2003) provides that:

"A person shall not by any application for judicial review or in any other legal proceedings whatsoever question the validity of a decision of the Agency to grant or refuse a licence or revised licence (including a decision of it to grant or not to grant such a licence on foot of a review conducted by it of its own volition) unless the proceedings are instituted within the period of 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made."

7 6. It would appear therefore that any such legal proceedings would have to be commenced by 18 ^th September, 2012 if the eight week period as defined is to be complied with. I might add that this Court has no jurisdiction to stay the operation of that eight week period contrary to what was urged on behalf of the company. In other words, any person wishing to challenge the decision of the Agency must do so within the eight weeks and this Court has no jurisdiction or power to suspend or extend that time period.

8 7. This is the general background to the present...