Watson v Environmental Protection Agency
| Jurisdiction | Ireland |
| Judge | O'Sullivan J. |
| Judgment Date | 06 October 1998 |
| Neutral Citation | [1998] IEHC 148 |
| Court | High Court |
| Docket Number | [1997 No. 168 JR] |
| Date | 06 October 1998 |
[1998] IEHC 148
THE HIGH COURT
BETWEEN
AND
AND
Citations:
ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S6
EEC DIR 90/220
GENETICALLY MODIFIED ORGANISMS REGS 1994 SI 345/1994 ART 33(4)
ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S111
GENETICALLY MODIFIED ORGANISMS REGS 1994 SI 345/1994 ART 4(1)
GENETICALLY MODIFIED ORGANISMS REGS 1994 SI 345/1994 ART 5(2)
ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S111(1)
ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S111(2)(g)(i)
ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S111(4)
NATHAN V BAILEY GIBSON LTD UNREP SUPREME 29.2.1996 1996/7/2004
BOLAND V BORD PLEANALA UNREP SUPREME 21.3.1996 1996/1/119
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(4)
GENETICALLY MODIFIED ORGANISMS REGS 1994 SI 345/1994 ART 31(4)
HAVERTY, STATE V BORD PLEANALA 1988 ILRM 545
Synopsis
Environmental
Judicial review; genetic engineering; genetically modified organisms; licensing; genetically modified sugar beet plant; application for licence to carry out limited field trials; standard by which the Environmental Protection Agency (EPA) must decide whether to grant consent for licence; whether standard required in relation to the grant of such a licence is higher under Irish law than that set by European Law; whether EPA erred in law and acted ultra vires in imposing a condition attaching to the consent allowing a person other than the EPA to agree matters referred to in that condition; whether court complied with the requirements of natural and constitutional justice in relation to applicants right of objection; whether applicant has locus standi; whether consent was granted in breach of the requirements of natural and constitutional justice; whether EPA complied with Regulations Environmental Protection Agency Act 1992, Genetically Modified Organisms Regulations, 1994, Council Directive of the 23rd April, 1990 on the Deliberate Release into the Environment of Genetically Modified Organisms
Held: Relief refused (High Court: O'Sullivan J. 06/10/1998)
Watson v. The Environmental Protection Agency - [2000] 2 IR 454
The Environmental Protection Agency, in deciding whether to consent to a deliberate release of a genetically modified organism into the environment, is not required to be satisfied beyond reasonable doubt that the risk of adverse effects has been reduced to an effectively zero level. The standard to be applied is set out in the 1994 regulations and is the same as that contemplated by the 1992 Act and as established by the 1990 directive and requires the Agency to ensure that all appropriate measures are taken to avoid adverse effects and in the light of that finding it is not necessary to decide whether the Irish legislature is competent to set a higher standard than the Directive. It is only proper that the Agency should as an executive matter require that specific instructions should be committed to writing and agreed by the Agency prior to the trial commencing and this does not amount to postponing the decision on consent. The principles of natural justice do not entitle the applicant to make further submissions after the 21 day period for the making of submissions had elapsed as her original submissions were general and principled in nature rather than technical and it was not established that the further material furnished by the second respondent to the first respondent radically changed the nature of the notification. The High Court so held in refusing the reliefs sought.
JUDGMENT delivered by O'Sullivan J. on the 6th October 1998.
If the intricate balance of nature is capable of instilling respect not to say awe in a relatively untutored mind such as my own, it is small wonder that persons of elevated sensibility such as the Applicant express deep misgivings at what they perceive as experimental tampering at the heart of this delicate balance.
When the Applicant comes to Court seeking a judicial review of the trial consent granted by the first Respondent to the second, she knows that not only is she taking on a heavy onus of proof but that the battle ground has moved from the merits and weight of the strongly held opposing opinions in relation to genetic engineering to the legal technicalities governing the processing of the second Respondent's application for such consent and the Applicant's right to object, together with the interpretation of the legal provisions relating to them. Such a challenge is emphatically not a re-opening of the merits of the application itself which is rightly required by our law to be adjudicated upon by an expert tribunal having available to it appropriate scientific and engineering expertise and not by a High Court Judge whose expertise is in the field of law.
The Applicant ("Ms Watson") is a member of an unincorporated association called Genetic Concern which seeks to raise public awareness of the dangers of the release of genetically modified organisms (GMOs) into the environment. Ms Watson has herself become increasingly concerned about the development of genetically engineered plants and animals and in particular the deliberate release of GMOs into the environment. She brings these proceedings on her own behalf.
The first Respondent ("the EPA") was established by the Environmental Protection Agency Act, 1992("the Act") and is charged with general powers and duties for the protection of the environment which include a licensing function in relation to the deliberate release of GMOs into the environment conferred upon it by Regulations made by the Minister for the Environment under the Act.
The second Respondent ("Monsanto") has been engaged for many years in researching, developing, manufacturing and selling, inter alia, herbicides in this country and many other countries. The well-known product "Roundup" has been developed and manufactured by Monsanto. It is a non-selective herbicide which means it kills not only weeds but also the crop.
Monsanto, together with another company Novartis, has concerned itself with the development of a sugar beet plant which is tolerant of the main ingredient in Roundup, namely, glyphosate with the objective of producing a product which would permit farmers to apply a glyphosate-based product while the beet is actually growing thereby killing the weeds but not the crop.
In the context of developing such a product, Monsanto applied to the EPA for two licences to carry out limited field trials of the new product at the Oak Park Research Centre, Carlow owned and operated by Teagasc, the national Government organisation with responsibility for agricultural research, advice and education in Ireland.
The EPA issued consents for such field trials on the 1st May, 1997 and Ms Watson challenges those consents on a number of grounds which I will set out in a moment.
By Order of the 13th May, 1997 Moriarty J., granted Ms Watson leave to challenge the consents and to seek the several reliefs on the many separate grounds referred to in that Order. The legal issues are identical in relation to both consents and the trial proceeded on the basis that only one consent was being referred to. I will adopt the same regime from this point onwards.
Ms Watson requires the Court to quash the consent of the EPA, to declare that it failed to comply with the requirements of natural and/or constitutional justice in relation to her right to object and to send the matter back to the EPA to be determined in accordance with law. In addition she seeks a number of declarations to the effect that the EPA failed to apply the "effectively zero" test which she says is established in the Regulations, failed generally to abide by those Regulations and in her initial application sought, in addition, a declaration that the Regulations themselves offend against the principles of natural and constitutional justice. This particular relief was abandoned during the course of the proceedings before me upon the basis that the Minister was not a respondent in these proceedings. In its place a further ground was added by my direction after objection and argument by both Respondents, seeking a declaration that the EPA erred in law and acted ultra vires in imposing a condition attaching to the consent allowing a person other than the EPA to agree the matters referred to in that condition.
The issues which have to be determined on this application may be set out as follows:-
Monsanto challenges the locus standi of Ms Watson to bring these proceedings at all and secondly and on a slightly different basis her locus standi to seek an injunction against Monsanto. The issues in relation to the injunction and the injunction related locus standi argument were by agreement postponed until after the main judgment has been delivered.
1. What is the correct standard by reference to which the EPA must decide whether or not to grant consent? Ms Watson says the standard is that risks to the environment and health must be reduced to "effectively zero": the EPA and Monsanto say that the standard is not as high or as absolute as this although they do not say precisely, in terms, what the standard is. Monsanto further suggests that the standard may be different depending on the type of deliberate release.
Allied to this argument Ms Watson says that if she is correct that the standard is "effectively zero risk", then the decision of the EPA was irrational in the legal sense because they accepted as their own conclusion that the risk was "extremely low"; that is to say that the EPA granted consent notwithstanding that in their view the notification, as it is called, failed to meet the test.
A sub-issue in this context is whether...
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