Democratising enforcement: thinking beyond the State. Andrew Jackson 29 November 2013

Transcription

1 Democratising enforcement: thinking beyond the State Andrew Jackson 29 November 2013

2 Democratising enforcement 1. Background: the role(s) of civil society 2. Why private enforcement matters now more than ever 3. Social media & enforcement 4. Empowering private enforcement I: access to information 5. Empowering private enforcement II: access to justice

3 1. Background: the role(s) of civil society Basic premise: For environmental challenges to be tackled effectively, we need greater involvement of civil society & public at large. IPCC Chair Pachauri called for a grassroots movement to put pressure on politicians to act [on climate change], The Guardian, 9 November 2013 Rajendra Pachauri, by PopTech

4 Irish Times, 18 November 2013 Two of the roles of citizens & civil society 1. Lobby to try to influence new policy development & implementation of existing law & policy Irish Independent, 18 December Use legal mechanisms to have existing law & policy implemented & enforced

5 2. Why private enforcement matters now Reason 1: EU policy dynamics Knill and Liefferink (2013) identify three broad phases in EU environmental policy First phase: Spinelli: taming the industrial tiger Second phase: The golden era of EU environmental policymaking Third phase: 1992-today Selective activism + implementation of the acquis 1EAP, 2EAP, 3EAP 4EAP 5EAP, 6EAP, 7EAP Weak legal and institutional basis SEA introduces explicit environmental Treaty base Strong legal and institutional basis High political salience of environmental issues c.200 pieces of EU environmental legislation Widespread public support for environmental action Strong Commissioners, etc : >200 pieces of EU environmental legislation Stagnation of policy dynamics Defensive phase Reduced and dwindling environmental output

6 Where we are now: summary DG Environment is in a relatively weak position. Cannot be as activist as it might like. E.g. UK s balance of competences review; 7EAP; Soils Directive; new Access to justice directive(?) Focus has shifted: Potočnik s four i s: better implementation; better information; increased investment; full integration.

7 We now need to think much more in terms of taking action directly at the national level DG ENV CHAP (complaint) cases per Member State on 11/10/ Ireland MT HU LU BE EE LV LT NL CY CZ SK AT HR SI PT DK FI EL RO PL SE BG FR DE ES UK IE IT Series DG Environment chart

8 Reason 2: States are proving to be unambitious regulators That is, major challenges have not (yet) proven susceptible to resolution by States alone. Consider climate change: 350.org Max. of 565 more gigatons of CO2 can be emitted by midcentury to have chance of staying below 2ºC global increase. But 2,795 gigatons of carbon already contained in the proven coal, oil and gas reserves of fossil-fuel companies and countries. Policy responses? Food Harvest 2020; no new agri-env schemes in 2014; peat-fired power; Bord na Móna, etc.

9 3. Social media for enforcement Photo by Michael Mitchell heritageaction.wordpress.com/ Wedge tomb in west Cork, Spring 2013

10 Post seen by 18,500 people on An Taisce s Facebook page.

11 Positive outcome: September 2013 Credit to landowner

12 4. Empowering private enforcement I: access to information Major issues: 150 fee is barrier to appeals (proposal to drop FOI appeal fee to 75). Chronic under-resourcing of CEI s Office. Cries for help; e.g. Office has not received any funding allocation from the State (2012 Annual Report); delays are certainly regrettable and arguably not in keeping with the State's obligations under the Aarhus Convention (CEI/12/0005). CEI has no jurisdiction re active dissemination.

13 5. Empowering private enforcement II: access to justice Access to justice remains very limited: s.50b PDA 2000: JR in respect of only EIA, IPPC (IPC) and SEA Directives; Pt 2 of Environment (Misc Provisions) Act 2011: various third party enforcement actions & AIE civil proceedings. In clear breach of Aarhus Convention. Holly Hunter judgment ([2013] IEHC 430) highly significant in practice. Seems we have cost protection in respect of totally unauthorised activity third party enforcement actions. Expect greater third party enforcement activity. Issues: (1) Public interest notice parties; (2) Costs of hearing to determine if special costs rules apply (s.7 E(MP)A 2011): e.g. Maher 2012 [IEHC] 44.

14 Private enforcers as catchers in the rye Dave White