Keywords: Environmental Impact Assessment (EIA), environmental impact statement, planning permission, development consent, pollution licensing, demolition works, 'project'
In Case C-50/09 Commission v Ireland, the European Court of Justice (ECJ) ruled that Irish legislation did not adequately transpose Directive 85/337/EEC,1 as amended by Directive 97/11/EC and Directive 2003/35/EC,2 on the assessment of the effects of certain public and private projects on the environment (the EIA Directive) with regard to:
(1) the obligation of the competent environmental authority to cany out an assessment of the effects of certain projects on the environment;
(2) the coordination of powers between several competent authorities involved in the decision-making process;
(3) the inclusion of demolition works as a category of development that may require environmental impact assessment.
The EIA Directive is one of the main legal instruments whereby various environmental matters are regulated. In Ireland, environmental impact assessment (EIA) forms part of the planning permission process. Therefore, correct implementation of the EIA Directive is to be achieved through domestic planning laws. The ECJ has established that the law is flawed on all three grounds.
Although the judgment calls for the adoption of a comprehensive holistic approach to the EIA, the content of this procedure has not yet been fully established. Unfortunately, it is likely that similar cases will continue to appear before the Court due to the vagueness of the concepts underlying the EIA Directive.
The proceedings were initiated by the Commission in light of a complaint filed by the Cork Harbour Alliance for a Safe Environment (CHASE) alleging that Ireland had failed to properly transpose provisions of the EIA Directive.3 The first letter of formal notice was issued to Ireland on 19 November 1998 and a further letter followed on 9 February 2001. The Commission was not satisfied with Ireland's response and issued a reasoned Opinion on 6 August 2001, which stated that Ireland had not properly implemented the relevant provisions of the EIA Directive. Ireland disagreed.
On 2 May 2006, the Commission sent an additional letter of formal notice to the Irish authorities. Ireland continued to disagree. The following event, however, triggered more serious action on the part of the Commission.
In May 2007 a new archaeological site had been discovered at Lismullin close to the M3 motorway at the Hill of Tara. However, the Minister for the Environment decided to demolish the Lismullin National Monument without earning out an EIA and continued the operation of the motorway.4 The Commission objected to the decision and demanded that an EIA was necessary prior to any demolition works. In light of these events, the Commission sent an additional reasoned Opinion to Ireland requesting compliance with the EIA Directive within a period of two months. Ireland, however, continued to maintain its position that there was national legislation in place which properly transposed the EIA Directive into the national law.
After Ireland continuously failed to have regard to the Commission's observations, the action under discussion was brought by the Commission on 4 February 2009. The First Chamber gave its judgment on 3 March 2011 without an Opinion from Advocate General Mazak. Highlighting divergences between the relevant provisions of the EIA Directive and national legislation, the ECJ ruled against Ireland on all three complaints.