The detection and prosecution of environmental crime

• Author: J. Dara Lynott
• Position: BE, MSc, PE, CEng, FIEI. Director of the Office of Environmental Enforcement, Environmental Protection Agency (EPA)
• Pages: 85-208

2008] Detection and Prosecution of Environmental Crime 185

THE DETECTION AND PROSECUTION OF

ENVIRONMENTAL CRIME

J. DARA LYNOTT *

INTRODUCTION

Environmental regulators in Ireland are responsible for in

excess of 500 environmental protection functions contained

within some 100 pieces of legislation. However, the European

Commission and European Court of Justice have been critical of

Ireland’s implementation of European legislation, indeed there

have been eight judgments against Ireland. Compliance with these

judgments remains a challenge for Irish regulators and the Irish

judiciary. As three of these cases (waste, environmental impact

assessment and habitats)1 move back to the European Court of

Justice for determination of fines against Ireland, the Commission

has articulated specific criticisms regarding the way in which

Ireland deals with the detection and prosecution of environmental

crime. This paper seeks to explore the basis for these criticisms,

reviews national and international initiatives and provides some

observations on how to derive further improvements in the

enforcement of environmental crime.

I. EUROPEAN COURT OF JUSTICE JUDGMENTS AGAINST IRELAND

As guardian of the EC Treaty, the European Commission

oversees implementation of some 200 legal acts in the

environmental field throughout the Community. The European

Commission’s Environment Directorate-General (DG) notes that

“one in five open (ongoing) infringement cases dealt with by the

Commission relates to the environment”.2 Ireland has had eight

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* BE, MSc, PE, CEng, FIEI. Director of the Office of Environmental

Enforcement, Environmental Protection Agency (EPA).

1 Details available at:

http://newsletter.publicaffairsireland.com/e_article001030834.cfm?x=bcdscLn,

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2 Directorate-General for the Environment, “Playing by the Rules”, (2007) 28

Environment for Europeans 4.

Judicial Studies Institute Journal [2008:1

186

European Court of Justice judgments against it for breach of

European Directives including the breach of the Waste

Framework Directive,3 Drinking Water Directive,4 Dangerous

Substances Directive,5 Habitats (and Bird) Directives,6 Shellfish

Directive,7 the Ozone Depleting Substances Regulation,8 Nitrates

Directive9 and the Groundwater Directive.10

In three of these cases (waste, environmental impact

assessment and habitats) the Commission has formally notified

Ireland that it intends to return to the court to seek fines and

penalties against it for failing to comply with the court judgment.

This process is allowed under Article 228 of the EC treaty. In the

case of E.C. Commission v. Ireland,11 the European Court of

Justice took a novel approach in its judgment against Ireland for

not taking adequate measures to correctly implement the Waste

Directive.12 The judgment, which is the focus of this paper,

referred to a number of sites where it was determined that the

Waste Framework Directive was not implemented, and used this

determination to form the view that there was a systemic failure

to implement the Directive in Ireland. The judgment states:

“[h]ere it is proved that, as is apparent from paragraph 139 of the

present judgment, as at the date upon which the two-month period

set in the 2001 reasoned opinion expired, Ireland was generally

and persistently failing to fulfil its obligation to ensure a correct

implementation of Articles 9 and 10 of the Directive”.13 Indeed

the Advocate General’s opinion, which preceded the judgment,

noted that:

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3 European Parliament and Council Directive [2006] O.J. L114.

4 Council Directive [1998] O.J. L330.

5 Council Directive [1967] O.J. L196.

6 Council Directive [1992] O.J. L206 and Council Directive [1979] O.J. L103.

7 Council Directive [1979] O.J. L190.

8 European Parliament and Council Regulation [2000] O.J. L244.

9 Council Directive [1991] O.J. L375.

10 Council Directive [1980] O.J. L20.

11 Case C-494/01 E.C. Commission v. Ireland [2005] E.C.R. 1-3331; [2005] 3

C.M.L.R. 14.

12 European Parliament and Council Directive 75/442/EEC 5 April 2006.

13 Case C-494/01 E.C. Commission v. Ireland [2005] E.C.R. 1-3331; [2005] 3

C.M.L.R. 14 at para. 170.