Environmental groups say cap on recoverable legal costs would limit access to justice

Attracta Uí Bhroin of Environmental Law Ireland said a court could find a decision to be unlawful but those taking the case would end up with a huge legal bill. File picture

New Government rules on environmental legal fees will have a “chilling effect on ordinary people seeking access to justice,” campaigners have said.

Hitting out at new regulations signed last week, the group Environmental Pillar said imposing a yet-to-be-confirmed cap on recoverable legal costs in successful environmental judicial reviews would be catastrophic for environmental and climate protection.

“Claims by the Government that the regulations do not limit access to justice or constrain the right of individuals or communities to challenge decisions do not hold water,” said Attracta Uí Bhroin, manager and law officer at the Environmental Law Ireland initiative.

“Essentially, you could win your case and be totally vindicated by the court in finding the decision to be unlawful, but you could still end up with a huge balance to pay to cover your own legal team where the court’s award won’t cover it.”

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This Government has consistently cited judicial reviews being taken as blocking or delaying key infrastructure and housing projects, and said it would take action in this area. 

Judicial reviews can see permission for projects overturned if they don’t adhere to the law, such as environmental law.

Taoiseach Micheál Martin said last October that the “excessive” frequency of judicial reviews taking place in Ireland is “undermining the common good”.

New scale of fees 

Last week, environment minister Darragh O’Brien and public expenditure minister Jack Chambers signed regulations to give effect to introducing a scale of fees for environmental judicial reviews.

A Government statement said the regulations would give a “clear, predictable cost framework” for applicants taking judicial reviews and public bodies paying costs.

Up to now, a public body would be liable for legal costs of the successful applicant when a judicial review taken on environmental law grounds was upheld.

“This brought about unpredictable costs for the taxpayer and often negative environmental outcomes, such as the stalling of renewable energy projects,” the Government statement said.

“The regulations do not limit access to justice or constrain the right of individuals or communities to challenge decisions, which remains a central part of our planning process.”

Measure 'will limit accountability' 

However, the national network of environmental organisations, Environmental Pillar, has said that the move is instead regressive and will be a heavy blow to public accountability.

It said the move effectively puts the State in control of who can and who can not afford to go to court to seek justice and observance of the law by public bodies.

Furthermore, it claimed the Government could also increase the rates at “the stroke of a ministerial pen”.

It said judicial reviews are sometimes portrayed as the preserve of individual ‘nimby’ types or environmental busybodies.

However, it claimed they are often the last opportunity for “concerned individuals or groups to draw attention to legally flawed planning decisions before they are cast in concrete with all the negative impacts that can flow from that for local communities, and our shared environment”.

Environmental Pillar co-ordinator Karen Ciesielski added:  “It is highly unlikely that well-off citizens, developers, and corporations will be disadvantaged by the Government’s changes to costs for judicial reviews, so a cynic might be forgiven for thinking that they are aimed at ordinary citizens, members of the public, and small local organisations and eNGOs seeking oversight by the courts.”