Environmental group is challenging extension of planning permission for Dublin airport runway

 A decision extending planning permission granted for a second runway at Dublin Airport is being challenged

The State has told the High Court there is no “unenumerated right” to an environment in the Constitution.

Unenumerated rights are not expressly mentioned in the written text of a constitution but are inferred from the the constitution, or cases interpreting it.

Lawyers for the State were responding to claims by an environmental group challenging a decision extending planning permission granted to the Dublin Airport Authority (DAA) for a second runway at Dublin Airport.

Friends of the Irish Environment, in proceedings against Fingal Co Couyncil and the State, with the DAA and Ryanair as notice parties, claim the proposed runway will lead to increases in Ireland’s greenhouse gas emissions.

Among its claims, it argues there is a constitutional right to life, bodily integrity, water, and health derived from an environment consistent with human dignity and well-being.

Represented by John Kenny BL, instructed by solicitor Fred Logue, Friends of the Irish Environment argues the runway will lead to an increase in the pace of climate change and will impact on the alleged rights.

Ciaran Toland SC, for the State, argued there is no unenumerated right to an environment in the Constitution and environmental policy was a matter for the Oireachtas and government.

The group’s claim that a legal right to an environment exists in 177 other countries was speculative, counsel said.

Any suggestion a right to an environment can be implied into the Constitution on the basis of an international consensus, when the European Convention on Human Rights does not contain such a right, was misconceived, he argued.

The group’s action is the third of three actions challenging the council’s decision to extend the runway permission by five years.

The DAA wants to build a €320 million, 3,110 metre runway, located on townlands north and north west of the airport terminal building, as part of its plans to turn the airport into an international hub.

The environmental group’s action argues the decision to extend planning permission is not in compliance with various EU directives, such as the Habitats Directive as well as the 2000 Planning and Development Act, and is unlawful.

It also claims the council has not justified its decision in light of the National Transition Objective set out in the Climate Action and Low Carbon Development Act 2015.

The group has also raised issues in relation to recognition of environmental rights in the Constitution.

A second challenge is by 22 individual residents — most with addresses at Kilreesk Lane, St Margaret’s, Co Dublin. They claim the development is illegal on grounds including the council failed to consider or address their concerns about the runway’s effect on their homes and lands.

They also claim an environmental impact assessment and an appropriate assessment of the possible impact the proposed development could have on the residents should have been done before the planning permission was extended.

The respondents and notice parties have opposed both actions.

The hearing of those two cases before Mr Justice Max Barrett continues.

The judge has already reserved judgment in a third challenge by the St Margaret’s Concerned Residents Group against the DAA.

In those proceedings, the group claims certain pre-construction works carried out by the DAA in December 2016 on the proposed runway amounts to unauthorised development. It is claimed the works were done before a waste management plan by the DAA was submitted to the council.

Wed, Oct 18, 2017, 08:28

Aodhan O Faolain

© The Irish Times

 

 

Friends of the Irish Environment

Press Release

For Wednesday 18 October, 2017

 

First case to test new climate legalisation

 

Today is scheduled to be the last day of the challenge to the new runway proposed for Dublin airport.

 

The new runway, if built, will significantly increase the capacity of Dublin Airport and lead to increases in Ireland’s greenhouse gas emissions.

 

In April, Friends of the Irish Environment was granted leave to judicially review the decision on the basis that it was incompatible with European Union environmental law and because Fingal County Council had not justified its decision in light of the National Transition Objective set out in the Climate Action and Low Carbon Development Act 2015.

 

This case is the first time measures reflecting the State’s commitment to transition to a low carbon economy by 2050 come before the courts and will be an important test of the strength of the obligations placed on public bodies to further this objective.

 

The case also raises the important issue of whether the Constitution recognizes fundamental environmental rights. Ireland is now an outlier in being one of the few countries in the world that does not recognize environmental rights at the constitutional level.

 

The requirement to bring Irish law into agreement with EU law which requires an Environmental Impact Assessment when renewing permission for major projects like the airport runway has been promised by the Government but has not yet taken place.

 

FIE’s challenge further alleges that since the runway was granted permission in 2007 the IPCC has demonstrated undeniable scientific consensus on the growing threat of global warming caused by human activity and yet Ireland has admitted that it will fall far short of the targets set under the Paris Agreement for 2020 and 2030 which will cost the State substantial fines.

 

John Kenny BL instructed by FP Logue Solicitors, also submitted that the Irish Constitution recognized an unenumerated right to a healthy environment. Echoing the ground-breaking Ryan and McGee cases which first established such unenumerated right, Mr Kenny quoted Pope Francis’s May 2015 encyclical, Laudato Si’ in support of his contention that the ‘philosophical consensus’ supports the ’legal and scientific consensus that requires climate change be addressed’.

 

According to the encyclical ‘environmental degradation’ is occurring at ‘an accelerating pace having a profound effect on us all and on the poor and disadvantaged, in particular’. Pope Francis warns that ‘we are presently witnessing a disturbing warming of the climatic system -a ‘common good’ that is ‘belonging to all and was meant for all’.

 

Mr Kenny argued that it was not an encyclical which reflected a particular religious or dogmatic view point. He suggested the Pope’s work was an ‘eloquent and thought-provoking encapsulation of an emerging philosophical consensus that should be considered in tandem with what I have described as the jurisprudential consensus and the scientific consensus.’

 

A spokesman for Friends of the Irish Environment said that ‘the overwhelming legal, scientific, and ethical arguments all support our claim that the State is not doing enough to address the greatest challenge of our time, entirely ignoring our new Climate Act and our international commitment to reduce the nation’s carbon emissions.

 

The case is due to conclude today after 10 days before Justice Barrett.

 

ENDS

Contacts and interviews:

Sadhbh O’Neill    353 (0)87 2258599

Irish Language: Daithí Ó hÉalaithe  +353 (0) 87 6178852

Tony Lowes 353 (0)27 74 771 / 353 (0)87 2176316

 

Facebook: https://www.facebook.com/FriendsOfTheIrishEnvironment/

Website: http://www.friendsoftheirishenvironment.org/

 

 

THE LEGAL CASE

 

FRIENDS OF THE IRISH ENVIRONMENT CLG APPLICANTS

FINGAL COUNTY COUNCIL RESPONDENT

 

DUBLIN AIRPORT AUTHORITY PLC

FIRST NOTICE PARTY

and

IRELAND AND THE ATTORNEY GENERAL

SECOND AND THIRD NOTICE PARTIES

and

RYANAIR DAC FOURTH NOTICE PARTY

 

APPEARANCES

FOR THE APPLICANTS: MR. JERRY HEALY SC

MR. OISIN COLLINS BL

INSTRUCTED BY: O'CONNELL & CLARKE SOLICITORS

FOR FRIENDS OF

THE IRISH ENVIRONMENT CLG: MR. JOHN KENNY BL

INSTRUCTED BY: FP LOGUE SOLICITORS

FOR FINGAL COUNTY COUNCIL: MR. CONLETH BRADLEY SC

MR. TIM O'SULLIVAN BL

INSTRUCTED BY: THE LAW AGENT

MS. HELEN O'NEILL

FOR DUBLIN AIRPORT

AUTHORITY: MR. GARRET SIMONS SC

MR. BRIAN KENNEDY SC

MR. FINTAN VALENTINE BL

INSTRUCTED BY: ARTHUR COX SOLICITORS

FOR IRELAND &

THE ATTORNEY GENERAL: MR. DENIS McDONALD SC

MR. CIARÁN TOLAND SC

MR. CHRISTIAN KEELING BL

MS. SUZANNE KINGSTON BL

INSTRUCTED BY: CHIEF STATE SOLICITORS OFFICE

FOR RYANAIR DAC: MR. MARTIN HAYDEN SC

MR. DAMIEN KEANEY BL

INSTRUCTED BY: PHILIP LEE SOLICITORS

 

 

PRESS RELEASE

MONDAY 8 OCTOBER, 2017

 

Friends of the Irish Environment [FIE] is celebrating its 20th anniversary fund raiser in the High Court which is currently hearing two Judicial Reviews brought by the non-Governmental Organisation. Established in 1997 as a  network of volunteers dedicated to assisting the introduction into Ireland of European environmental legislation and to assist local groups and individuals in environmental and planning issues, the group’s activities have covered a wide range of environmental issues at national and European levels.

Two cases are currently being heard in the High Court. One is  a challenge to a new runway at Dublin airport on the grounds of the failure of the local authority to meet the requirements of Ireland's climate legislation and the right our constitution offer for inter-generational protection.

 

The other case relates to the widespread uncontrolled industrial extraction of turf by large horticultural companies, Westlands and Bulrush. FIE commissioned a satellite survey of exposed Peatlands across Ireland from UC C in 2010 that revealed many thousands of hectares of raised bogs being exploited, A subsequent ground truthing exercise in 2011 by 21 local authorities under the direction of the DoE confirmed more than 40 sites of over 30 hectares, some of them in excess of 100 hectares largely by eight companies, none of which had licences or planning permission. All were previously unknown to any authorities.

 

The extraction of peat is not only a nature conservation issue, but impacts on drinking water quality and destroys our finest carbon sinks.

 

With less than €10,000 a year from the plastic bag tax and landfill levies (distributed by the Irish Environmental Network) and entirely voluntary activists, the group has taken on a wide range of challenges from defending slugs and snails through fish farms and quarries to Donald Trump’s 'other wall' at Doonbeg in County Clare, where they successfully protected a tiny snail after 5 days in the High Court in 2000.

 

‘We felt that it was only fitting that we note and celebrate the coincidence of FIE’s two concurrent court cases  with our 20th anniversary €20 fund raiser and take the opportunity to thank the solicitors and barristers who have given their time and skills pro bono for so many years.

 

‘While the huge costs of litigation are greatly mitigated by the generosity of the legal profession, we still have to find funds for  photocopying fees, court fees, transcripts, expenses for experts and all the associated cost that can run into thousands of euros which we cannot expect our lawyers to meet out of their own pockets.

 

‘We appeal to the public to support our work - and help ensure openness and transparency in the Governments treatment of the environment.’

 

The group is asking supporters to contribute €20 through its website

http://www.friendsoftheirishenvironment.org/index.php/make-a-donation

 

 

ENDS

 

 

ENDS

CONTACT: Tony Lowes 353 (0)87-2176316   or  353 (0) 27 74771

Editors Notes:

Friends of the Irish Environment is a network of environmentalists with legal and planning skills established in 1997 to ensure implementation of European environmental law and assist individual and groups with environmental issues. It is entirely voluntary and supported by the plastic bag levy and landfills charges through the Irish Environmental Network, individual grants, and public donations. Its accounts are available on its website. It is a member of the Irish Environmental Network and the European Environmental Bureau and a registered company in Ireland.

 

Website: http://www.friendsoftheirishenvironment.org/

Facebook: https://www.facebook.com/FriendsOfTheIrishEnvironment/

 

 

PRESS RELEASE
FRIENDS OF THE IRISH ENVIRONMENT
16 October 2017

Pope cited in airport runway climate challenge

Case about ‘climate, climate, climate – and nothing else’.

As the country counts the cost of another extreme weather event, the Pope’s recent Encyclical was cited in the High Court as part of the challenge to the new runway at Dublin Airport.

John Kenny, SC, opening the case for the Friends of the Irish Environment’s challenge to the extension of the runway, quoted Pope Frances’s May 2015 Laudata Si’ in support of the contention that the ‘philosophical consensus’ supports the ’legal and scientific consensus that requires climate change be addressed’.

The Pope warns that ‘we are presently witnessing a disturbing warming of the climatic system -a ‘common good’ that is ‘belonging to all and was meant for all’. According to the document ‘environmental degradation’ is occurring at ‘an accelerating pace having a profound effect on us all and on the poor and disadvantaged, in particular’.

In the Encyclical, the Pope quoted his fellow clerics statement that “inasmuch as we all generate small ecological damage we are called to acknowledge our contribution, smaller or greater, to the disfigurement and destruction of creation”.

On the 8th day of the Judicial Review, FIE’s barrister argued that it was not an Encyclical which reflected a particular religious or dogmatic view point. He suggested the Pope’s work was an ‘eloquent and thought-provoking encapsulation of an emerging philosophical consensus that should be considered in tandem with what I have described as the jurisprudential consensus and the scientific consensus.’

A spokesman for the group said that ‘the overwhelming legal, scientific, and ethical arguments all support our claim that the State is failing to address the greatest challenge of our time, ignoring its own Climate Act and its own targets for reducing carbon emissions. This case is about climate, climate, climate – and nothing else.’

The case resumes tomorrow and is due to conclude on Wednesday.

ENDS
Contacts:
English language: Tony Lowes 353 (0)27 74 771 / 353 (0)87 2176316
Irish Language: Daithí Ó hÉalaithe  +353 (0) 87 6178852
Facebook: https://www.facebook.com/FriendsOfTheIrishEnvironment/
Website: http://www.friendsoftheirishenvironment.org/



 

Gross overstocking and arrogance is revealed in two submissions to the Minister for Agriculture, Food and Fisheries recommending the withdrawal of Marine Harvest’s salmon farming licences in Donegal and Cork.

The claim is based on two submissions to the Minister by the Principle Officer of the Department’s Aquaculture and Foreshore Division published by Friends of the Irish Environment at the Oral Hearing for a new salmon farm in Bantry Bay by Marine Harvest, the Norwegian multi-national that produces more than 80% of Ireland’s farmed salmon.

In the case of Donegal’s Lough Alton, which supplies 80% of Marine Harvest’s smolts, ‘by its own admission the company exceeded its stocking limitation by a significant degree (17%) for commercial reasons,’ the Report states.

‘Persistent’ requests for an action plan to address the breaches by Donegal County Council had been met with a refusal by the company who ‘cited economic reasons for not implementing the of treatment facilities which their current production rates would demand in order to achieve compliance’.

The Principle Officer states ‘It can be reasonably stated therefore that the company knowingly breached the terms and conditions of its licence to a substantial degree for clear commercial gain’.

At Inishfarnard in the Kenmare River Special Area of Conservation, gross overstocking has been recorded in the annual Department’s Fin Fish Farm Inspection Reports since 2012. An application for increased capacity was refused by the Minister in 2010 as ‘Such a major increase in stocking capacity would have to be the subject of a new licence application accompanied by the necessary Environmental Impact Statements’.

The Inishfarnard site, which is licensed to contain no more than 500 tons of fish, had a standing stock that was 26% above the permitted level before the input of 820,604 young fish in March 2014, this input itself being 105% in excess of the permitted level of 400,000 fish.

In response to this major non-conformity raised by Aquaculture Stewardship Council the company made no apology or commitment to meet the stocking requirements, simply stating ‘the current limit of 500 tons per annum would require harvest at 1.25 kg which is not a saleable size.’

Marine Harvest, the Norwegian multi-national that produces more than 80% of Ireland’s farmed salmon, called the licensing system ‘Anachronistic, legally and technically meaningless in its application to modern good farming practice’.

FIE published the reports as part of its presentation to the recent Oral Hearing of a number appeals against the company’s proposed new salmon farm in Bantry Bay. They told the Oral Hearing, held in Bantry earlier this month, that ‘an applicant who openly informs a licencing authority that he has no intention of meeting his licencing conditions is not a fit person to hold a licence’.

The consequences of this overstocking, according to the environmental group, are ‘that the pressures on the environment has not been assessed, as required by European and national law’. The overstocking also ‘undermines the Department’s sea lice control, where the number of lice are based on samples taken multiplied by the number of fish licenced. If the site is overstocked by 105%, the number of lice will also be 105% higher than the recorded level.’

The detailed 20 page submissions were rejected by the Minister because of proportionality and the commercial consequences to the company.

However, the Principle Officer’s Submission addressed the issue of the commercial consequences:

‘While it can be argued that the development of the industry will be adversely affected by any sanction against the company, the overriding obligation of the department is to take action against the operator in accordance with the obligations set out in the legislation. Anything less will seriously undermine the State’s regulatory system in relation to Marine aquaculture. The long-term effect this would have on the regulation of the industry is as serious as it is obvious.’

FIE said that the failure to deal vigorously with significant breaches of licence conditions is ‘a result of the conflict of interest within the Department between its role as industry developer and as industry regulator which creates an objective bias in the functioning of the Department.’

In separate submissions, they have urged the Government to ‘reorganise the Department so that the Marine Institute and the Sea Food Protection Authority are administered by a non-fisheries division of the Department. The necessary and appropriate checks and balances incumbent on the Department in the exercise of its functions is impossible under the current regime.’

According to FIE Director Tony Lowes, who made the presentations, the publication of the Reports in hard copy and electronically at the Oral Hearing was not covered by the local or national press present. Complementing the UK’s Sunday Times, which today is covering the story, Mr. Lowes said that ‘if the Washington Post was right in saying that ‘democracy dies in darkness’, our struggle to bring out the story shows that the lights have been truly extinguished by the Irish media’.

Read the astonishing reports

Marine Harvest Overstocking