Two environmental groups have taken a legal challenge to new regulations capping legal fees recoverable from public bodies in successful environmental cases.
An Taisce and Friends of the Irish Environment (FIE) argue the caps mean successful environmental judicial review applicants face “prohibitively expensive” litigation in breach of the State’s domestic and European Union law obligations and worsen Ireland’s “already terrible” environmental situation.
Signed last May by the Minister for Climate, Energy and the Environment, Darragh O’Brien, and Minister for Public Expenditure Jack Chambers, the regulations introduced a scale of fees payable by the State for environmental judicial reviews.
The Ministers said the rules, capping fees on a scale between €40,897 and €65,805, would introduce a “clear” and “predictable” legal costs framework and ensure “a streamlined system that balances environmental concerns with the public good”.
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During a public consultation, the regulations were overwhelmingly opposed in 98 per cent of submissions received, including from environmental groups and the lawyers’ representative bodies, the Bar of Ireland and the Law Society.
Prior to the regulations, a public body was liable for the legal costs of a successful applicant who took a judicial review on environmental law grounds.
The Ministers said this led to “unpredictable” costs for the taxpayer and “often negative environmental outcomes”, including the stalling of infrastructure projects.
In disputing those claims, An Taisce and FIE said the regulations mean that if a public body makes a serious mistake in relation to the environment, “ordinary individuals will have to pay thousands to go to court to correct it”.
“Members of the public will be penalised for protecting the environment in the public interest and the common good, and for helping the public body properly execute its functions,” they said.
While ordinary members of the public will have their legal budgets “severely curtailed”, public bodies, the State and developers “will remain free to spend unlimited amounts on their lawyers to defend their projects, regardless of the environmental impacts”.
Ireland, they said, has “one of the most degraded environments in the EU and is one of the worst performers in Europe for climate change”.
“Taking away the public’s power to go to court by making it prohibitively expensive will make a terrible situation worse.”
Prior to the regulations, the public had financial protections that allowed them to challenge legally flawed decisions in the public interest “without the risk of bankrupting themselves”, the groups said. Those protections came about after “years of wrangling” to bring Ireland into compliance with obligations under the Aarhus Convention and EU law on legal costs, which require that access to justice be “fair, equitable, timely and not prohibitively expensive”.
The new regulations involve “largely scrapping that system” and breach the “not prohibitively expensive” requirement, making them unconstitutional and contrary to national and EU law, the groups contend.
Ireland, they said, has some of the highest litigation costs in the EU. The legal costs in a typical environmental case can run to hundreds of thousands of euro, “which is unaffordable for all but the wealthiest in our society, as well as the State itself”.
Instead of acting to reduce the high cost of legal fees, the regulations, “adopted in the teeth of fierce public opposition”, cap the costs of successful public-interest litigants at about 30 per cent of the “established reasonable costs” currently paid.
This amounts to “a significant attack” on the public, civil society and public accountability, they said. The State’s motivation for the changes, the groups claim, is to remove access to the courts “by erecting insurmountable financial barriers to ordinary people and their associations who wish to take cases to uphold the law, which the Government itself has enacted”.
The case is listed before the High Court for directions in October.
