Drafting a new Environmental Code –What it would look like and what would it do?

Note: this is an introduction to Louise Beirne’s paper which will be presented at the upcoming Climate Bar Symposium on Friday, 21st January 2022. Register here

• Louise Beirne BL

Public interest litigation is a well-established means of achieving social change. However, we know that a litigant’s prospects of success are dependent on the wording of the legislation or Constitutional provision upon which they seek to rely. In the first instance, a claim may not be justiable. Secondly, even if it is, it may fail if it does not come squarely within the scope of available legal provisions. Thirdly, existing legislation may not envisage the remedy desired or required by a potential litigant. Moreover, issues around standing and costs may pose barriers.  

Key Elements of a Model Code

Inez McCormack, a signatory of the McBride Principles, whose successful campaigns included the inclusion of groundbreaking human rights and equality provisions in the Good Friday/Belfast agreement, spoke about rights holders not needing lawyers and policy-makers to tell them their rights. Rather, she spoke about the need for “technicians”, who would use their skills to assist rights holders in realising their rights.

Having regard to the foregoing, the starting point for any environmental legislative drafting project must be issues identified by stakeholders. It is clear from the Stakeholder Feedback Report, which was prepared as part of the project, that “enforcement of environmental legislation [was] a significant problem identified across all of [the] respondents”. The “piecemeal” nature of environmental legislation was identified as a particular “barrier to enforcement”. Additional barriers identified included the usability and accessibility of environmental law.[2]

It is noteable that the key issues raised by the stakeholders were the need to ensure compliance with existing legislation and make it easier for people to rely on rather than; for example, a need for more stringent penalties for breaches of environmental legislaion. Those observations chime with the findings of the Taskforce Team researching sanctions, insofar as that team noted a greater emphasis on criminal, as opposed to administrative sanctions, in Ireland compared to other jurisdictions. The observations of the stakeholders and the findings of the team researching sanctions are reflected in the draft Code insofar as it provides for administrative sanctions, in addition to enforcment actions by individuals and groups.

However, rather than any one provision, it it is hoped that the key strength of an Environmental Code would be the simple act of bringing together all of Ireland’s existing legislation through a single piece of legislation in order to increase its usability. The compilation of such a Code would be in keeping with projects of the Law Reform Commission to increase access to legislation through its compilation and maintenance of a series of revised Acts.

Ideally, existing environmental law would be consolidated into a single Act, which would unify and consolidate environmental law, similar to the Companies Act 2014 for company law. However, having regard to the significant impact which European law has on environmental law, it is not necessarily practical to seek to reduce the amount of environmental legislation, which is currently in force, to a single piece of legislation. Rather, in order to address the usability and accessibility concerns raised by the stakeholders, our key task involved finding a way to unify and increase the user-friendliness of the existing legilslation.

It is envisaged that an Environmental Code would exercise a function akin to the Interpretation Act 2005, save that it will apply to environmental legislation only. In order to achieve that aim, Part I of the draft Code sets out principles which apply to environmental legislation. Environmental legislation is defined in the draft Code as Acts, statutory instruments and European Regulations, which are listed in the Schedule to that Code and the Code contains a specific provision that allows for the Code to be updated by Ministerial Order.

Conclusion

The draft Code which the Taskforce will present at the symposium is but a draft document, which sets out in broad brushstrokes what the Taskforce has concluded that a comprehensive Environmental Code ought to contain. However, we hope that it starts a conversation to the effect that an environmental Code is not only a moral imperative, but desirable and achievable.

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[1] This short article is based on a longer paper, which was prepared by Louise Beirne B.L., Dirayati Fatima Turner and Stuart McCabe. The complete paper appears in the collection of papers for Comhshaol – the Climate Bar Symposium, January 2022. Research papers on specific issues, a draft Model Environmental Code and an inventory of environmental law also appear in the collection of papers. The draft Model Environmental Code is the work product of the entire Climate Bar Association Task Force and was drafted following research by a number of teams working on specific areas of research.
[2] Stakeholder Feedback Report, p. 4.