Alice-Mary Higgins (Independent) | Oireachtas source

The amendment covers similar ground to amendment No. 3, which was ruled out of order. In that amendment, we attempted to suggest some solutions but they would affect the cost, which is why they were ruled out of order.The problem being identified is linked. There are serious concerns in respect of the Bill. Although we heard from the Minister on Committee Stage about all the engagement with environmental groups and the various established actors, environmental NGOs and others, that does not seem to stand up in the context of the Bill because those organisations have been expressing serious concerns. There was discussion on that Stage in respect of the relationship to the maritime area and there was a question regarding the word "usages", but it cannot be simply extractive. Similarly, the relationship with civil society and environmental NGOs is not simply a one-sided relationship where the Ministers are happy they have consulted and then go ahead with the legislation. There is a deep and important role and power that is rightly distributed among citizens and environmental NGOs, which have their own responsibilities and role in the context of good planning. There is a concern that this legislation is diluting that role and seeking to dilute that power. There are several ways in which it does so.

I refer to the issue of locus standi. The amendment deals clearly with this issue. It refers to "a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection, and has, during the period of one month preceding the date of the application, pursued those aims or objectives" because some such bodies will be very long-established organisations and others will be groups of citizens who come together out of concern for their local environment and they should have locus standi to pursue judicial review. Section 110(b) as proposed in the amendment is of particular importance in the context of ensuring that groups of local concerned actors, possibly comprising people who may work together on just one area, who decide to take on an environmental issue that is really important to them and their place are not at risk of being deemed as having insufficient interest or not being allowed to pursue judicial review in respect of an MAC in particular. This point about who can take action is crucially related to the concerns that have been expressed. As I stated, I understand members of the environmental pillar have written to the Department urging still at this late stage that proper consideration be given and proper measures put in place to ensure we have those meaningful checks and balances that are so crucial and part of our democracy, along with the Legislature and the Executive, in the context of rights through the courts and the role of civil society. There are many serious questions in respect of judicial review, among which is the question of who takes the case.

On a related issue, many questions arise in respect of section 133 of the Bill. First, why is the section in the Bill? It looks like a version of section 50B that already exists under the planning legislation. Surely the obvious thing would be for section 50B to still apply, even though it has some flaws. That section is what most environmental NGOs and other actors would expect to use to challenge a decision in respect of a maritime area consent based on environmental concerns, yet there is this kind of parallel version of it inserted into the Bill which subtly changes the language and removes certain areas in the context of this judicial review role. What is really concerning is that there is already provision in respect of environmental decision-making and we know the State has obligations under the Aarhus Convention in terms of environmental decision-making so it is important for the Minister to clarify his understanding in this regard. These are questions to which I need answers today. Decisions relating to maritime area consents clearly have potential environmental implications because they relate to activities and consents in terms of certain usages and activities within maritime areas. It is maritime area consent. It has environmental implications. I ask the Minister to confirm that he understands that.I am also seeking an explanation for the decision to insert section 133 in the Bill in respect of judicial review rather than simply applying section 50B, which is law that already exists.

This all relates to the issue of people who are trying to take judicial review cases. I refer to a really odd and worrying concern. Section 133(7) contains a list of the relevant directives, with reference to the habitats directive among others, but there is a notable omission. Section 50B, which is equivalent to section 133, contains reference to the integrated pollution prevention and control directive which, of course, has now been supplanted at European level by the industrial emissions directive. That is crucial because this is about emissions. It relates to any kind of significant activity. Of course, the current direction of travel is to monitor emissions more and pay more attention to them and their implications. To remove that directive as one of the areas where an environmental judicial review might be taken or a judicial review based on environmental concerns strikes an odd note. It is a strange decision. It may have implications in the context of liquified natural gas, LNG, if an environmental NGO or concerned group of citizens, for example, wished to take a judicial review on foot of concerns relating to the environmental implications of emissions from something like LNG. It may even have implications down the line in terms of data centres, given that we know the maritime planning of that, although it might be a different planning process. I am very concerned in respect of the maritime area consent piece. I know the Minister will say there are later places in the planning process around these but maritime area consent is still allowing for activities that relate to this issue. We have seen, even in the context of the climate action Bill, that where an initial activity has been taking place, that is regarded as giving some kind of future tantamount expectation.

I am really concerned that as the Bill is set out right now, it will be difficult first for environmental NGOs or local groups of concerned citizens who care about their environment to be properly recognised as having locus standiin the context of judicial review. I am concerned about them being able to properly take judicial review in respect of those issues on the same basis they would be able to bring proceedings under section 50B at the moment. Will environmental NGOs and others would be able to take a judicial review under section 50B against a maritime area consent? Will that section still apply? Can he confirm such organisations will not be told they need to use section 133?

I and, I suspect, all other Senators present would like an explanation in respect of why the industrial emissions directive is not considered to be important from an environmental perspective in this legislation.