(20) Environmental Law

Naomi Klein explains "polluter pays"

What is the polluter pays principle?

What is the 'polluter pays' principle?

EL18

THE IRISH DEPARTMENT OF THE ENVIRONMENT

Policy priorities and future challenges

 De-coupling economic growth from environmental damage is a major challenge facing many countries, and environmental policies are continuously evolving to meet the challenge of appropriately balancing economic development and environmental protection. This challenge in Ireland has been made more immediate by the relatively recent economic surge here and must also be addressed against the background of increasing international obligations and the corpus of environmental legislation to which the country is now committed.

Environmental policy in Ireland will continue to be shaped by developments in European environmental law and policy. The EU’s 6th Environmental Action Programme identifies climate change, nature and biodiversity, environment and health and resource efficiency and waste management as key priorities.

The Department, in its current Statement of Strategy and in its review of national sustainable development policy, Making Ireland’s Development Sustainable, has adopted these as priority areas for Ireland.

Challenges for Ireland identified within the overall environmental and the wider sustainability agenda include:

(a) Reducing eutrophication of inland waters;

(b) Improving waste management;

(c) Protecting the urban environment;

(d) Controlling greenhouse gas and other transboundary emissions in accordance with international agreements; and

(e) Protecting natural resources.

An examination of the list above provides an indication of areas where future Departmental programs and policies may focus. In addition to ongoing policy development, addressing these challenges will require more effective implementation of existing environmental controls, an area which will be of particular focus in the near future. Further areas of focus will be the greater integration of environmental considerations into economic/fiscal and sectoral policies, providing information and raising awareness towards changing behavior and continuing to encourage a partnership approach and the concept of shared responsibilities in relation to environmental issues.

Agencies and semi-state bodies operating under the aegis of the Department of the Environment, Heritage and Local Government

An Bord Pleanála, the Planning

• Housing Finance Agency Appeals Board

• Irish Water Safety Association

An Chomhairle Leabharlanna

• Local Government Computer Services

The Library Council Board

• Building Regulations Advisory Body

• Local Government Management

• Comhar, The National Sustainable Services Board Development Partnership

• National Building Agency

• The Heritage Council

• Private Residential Tenancies Board

• Dublin Docklands Development

• Radiological Protection Institute of Authority Ireland

• Environmental Protection Agency

 • Rent Tribunal

• Fire Services Council

•Temple Bar Renewal

Met Éireann (the meteorological office) and the National Franchise and Electoral System also form part of the Department. Furthermore, certain functions relating to the construction industry fall under the Department’s remit.

Up until June 2002 the Medical Bureau of Road Safety, the National Safety Council, the National Roads Authority and the Dublin Transport Office fell under the Roads Division within the Department; however, these are now part of the new Department of Transport.

Key environmental policy principles

 Sustainable development

Sustainable development is at the heart of the Department’s mandate and mission. Generally, it is the activity which meets the needs of the present without compromising the ability of future generations to meet their own needs.

Sustainable development was the overarching theme of the EU’s 5th Environmental Action Programme as well as the worldwide Earth Summit in Rio De Janeiro in 1992. The principle was considered and applied in just about every piece of EU and, consequently, Irish legislation arising during the period covered by the 5th EAP. It is now engrained in environmental policy worldwide and has been taken forward as a premise in setting the environmental objectives and priorities of the EU’s 6th EAP, the Department’s Statement of Strategy 2003–2005 and the majority of other environmental policies existing at the EU and national level.

Best available techniques

Best available techniques, or BAT, essentially means applying technology which provides for the most effective prevention, minimisation or rendering harmless of polluting emissions and which is procurable by the industry concerned.

Available does not necessarily imply that the technology is widely used or locally available. Technology itself is taken as the techniques and the use of techniques, which include training and maintenance.

Polluter pays

This principle works on the premise that the cost of preventing or rectifying environmental damage should be borne by the one who causes it, ie, the polluter. This includes costs of administration, environmental agencies, repair/remedying of environmental damage and, to a certain and increasing extent, replacement of environmental services or amenities.

Precautionary principle

The precautionary principle acknowledges that it is not always possible to know what the environmental consequences are of a particular activity or process.

To cope with this level of uncertainty, applying the precautionary principle may require:

(a) Cautious progress until a process or activity is determined to be ‘innocent’;

(b) Ordinary progress until findings of guilt is made;

(c) No progress until intensive research has been completed and the innocence of the process is demonstrated.

Producer responsibility

Producer responsibility essentially takes the polluter pays principle a step further. Whereas polluter pays are somewhat of an ‘end of pipe’ principle, producer responsibility starts at the ‘front end’ of a product, making producers responsible for its environmental fate, even if it has left their control. This principle is applied largely in the context of waste legislation and is meant to encourage the use of Integrated Product Policy and application of ‘design for the environment’ in making and developing any product.

Integrated Product Policy (IPP)

IPP has been widely accepted as a principle; however, as an actual policy, it is still in a developing stage. There are ideas of what IPP is supposed to mean, but the definition is currently the subject of some debate, which is taking place largely in the context of proposals by the European Commission to formally create an EU Integrated Product Policy. The general aim of IPP in principle is to reduce the overall impacts of a product throughout its lifecycle. The ultimate objective of IPP is to negate the need to regulate products by encouraging ‘front end’ improvements, for example, taking into consideration factors such as materials use or manufacturing processes.

The legislative process

Where proposals for legislation relate to matters on which government/Department policy has not already been laid down, or where they involve a new development or a material departure from existing policy, the Department first submits proposals to the Government by way of a memorandum of a decision in principle. Following such a decision in principle, or where proposed legislation is in accordance with the general lines of the Department’s existing policies, the Department prepares a general scheme of the proposed Bill in numbered heads. Consultation with interested parties may take place at this stage.

The draft heads, when completed, are forwarded to the Department of Finance and every other Department concerned, as well as the Office of the Attorney General, which may have already been consulted during preparation of the draft scheme. Some legislative proposals are also submitted, upon request, to Oireachtas Committees for consideration.

When the Government has approved the general scheme of a Bill, the Department arranges for drafting by the office of the Parliamentary Counsel to the Government (within the office of the Attorney General). Consultations may, again, take place during this process, although the text of the proposal is not actually disclosed to third parties prior to approval by Government and presentation to the Houses of the Oireachtas. When drafting is completed, Government approval to publish the legislation is sought. Once obtained, the Bill is presented either in the Dáil (Lower House) or the Seanad (Upper House).

The Bill is accompanied by an Explanatory and Financial Memorandum outlining the provisions of the Bill, setting out the existing law and the changes therein, proposed by the Bill and providing information about the estimated Exchequer costs and staffing implications for the Department, State Bodies, local authorities, etc.

Key environmental and environment-related legislation

• Local Government (Water Pollution) Act 1977 (amended in 1990).

Associated Regulations include those relating to Nutrient Management Planning and Water Quality Standards.

• The Air Pollution Act 1987.

• The Environmental Protection Agency Act 1992 (as amended by the Environmental Protection Act 2003).

Associated Regulations include those relating to urban wastewater treatment, control of emissions to certain environmental media and Integrated Pollution Control (IPC) Licensing (soon to be amended to become fully in line with the EU Directive on Integrated Pollution Prevention and Control (IPPC)).

• The Waste Management Acts (comprising the Waste Management Act 1996, the Waste Management (Amendment) Act 2001 and the Environmental Protection Act 2003).

Associated Regulations include those relating to hazardous waste and movement of waste including transfrontier shipments and licensing and permitting of waste activities including waste collection.

• The Litter Pollution Act 1997 (as amended by the Environmental Protection Act 2003).

Repeals the Litter Act and associated amendments.

• The Planning and Development Act 2000.

Repeals the Local Government (Planning and Development) Act and associated amendments.

• The European Communities Act 1972 and subsequent amendments.

A number of environmental Regulations have been made under this Act including, but not limited to, those relating to Environmental Impact Assessment, access to information on the environment, drinking water quality, control of certain emissions and minor amendments to existing environmental legislation.

Other environmental Acts include, but are not limited to, those relating to:

• Forestry;

• Wildlife;

• Derelict sites

• Sea pollution, including specific Acts relating to fisheries, foreshores, oil pollution and dumping at sea;

• Radiological protection.

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