Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source

The Minister of State gave a short explanation of amendment No. 171. It has caused much concern outside this room. Many people have read it and come up with different views on it. They are concerned about the effect of it and I and I am going to talk through some of those. Some have taken the view it is trying to prevent the capacity to take a judicial review in part on the grounds that an EIA be undertaken. Accordingly, it would be helpful if the Minister of State could give a detailed explanation of exactly what amendment No. 171 seeks to do. There is concern the wording only refers to acts done and not to decisions or omissions. An act done might extend to decisions, but for example, section 50 of the Planning and Development Act refers to "any decision made or other act done". Will the Minister of State set out the rationale from the deviation from the formulation in the aforementioned Act, which refers to both acts and decisions, whereas the current Bill only refers to acts?

Will he explain why omissions are not explicitly referred to, as including them would also serve to improve the transposition of Articles 9.2 and 9.3 of the Aarhus Convention and Article 11 of the EU EIA directive, as amended? Surely he is not intending to limit Aarhus or incorrectly transpose the EIA directive?

Will the Minister of State set out the options a person would have should he or she wish to challenge some other action of the Minister or public authority that does not relate to an EIA or an appropriate assessment?

Will he identify the sections where Article 9 of the Aarhus Convention has been transposed? In particular, there does not seem to be anything equivalent to section 160 of the Planning and Development Act, which allows for members of the public to take action with respect to a private individual or authority for a breach of law relating to the environment, with protection and quality of review required under Article 9.4 of the Aarhus Convention such as, for example, cost protection.

Will the Minister of State set out the effect of the inclusion in section 42(6)(b)of Part 2 of the Environment (Miscellaneous Provisions) Act 2011 and any limitations argued by the State on the effective cost protection arising, especially given this Bill, when enacted, will not be in the list in section 44 of the 2011 Act? Will he accept or bring forward an amendment that explicitly excludes the requirement of Part 2 of the 2011 Act to prove environmental damage, at least in the instances being advanced under the Bill, given the EU Court of Justice indicated as far back as March 2018 in judgment C-470/16 that the environmental damage test in section 42 of the 2011 Act was entirely unlawful? Paragraphs 59 to 65 of that judgment refer to it. I remind the Minister of State that Ireland was found to be in breach of the EIA directive by the EU Court of Justice in C-50/09 and the new directive actually requires much more. I will keep this under review between now and Report Stage.

If the Minister of State is not able to answer all that now, perhaps he would be able to give a further written note on any of the aspects I have raised. It would be appreciated.