Shutting up shop: the EU and the environment.

By Tony Lowes.

In last month’s Village James Nix outlined the – surprising to most – ways it is proposed to downgrade the environment in the new scheme of Commission Directorates and portfolios.

But this overt change is less surprising when you consider the way the Commission has downgraded its enforcement of environment law over the last five years.

The European Union cannot achieve its policy goals if environmental law is not applied effectively on the ground. While member states are primarily responsible for implementing EU law, the Commission’s duties as guardian of the EU Treaties include the responsibility to ensure the member states comply with the law, demanding – when necessary – resort to formal legal proceedings.

Since the introduction of a new mechanism of complaint-handling by the European Commission in 2009, however, the formal infringement proceedings that once ensured (slow) progress of justice have been replaced by a system that has no basis in European law, offers no transparency to complainants or the public, and is settled in private between Commission officials and the offending member states representatives without ever reaching open court.

It certainly amounts to an anti-democratic, anti-transparency move away from the personal rights of complainants to closed-door resolution of their complaints. It downgrades the rights of citizens in relation to the EU and national-government blocs.

The Commission’s astonishing achievements in Ireland in beginning the end to rampant illegal dumping, kick-starting the clean up of our waste system, advancing water-quality and effluent control, designating 13% of the country for our shared EU role in protecting European biodiversity, ensuring major projects are (well, mostly) assessed for their impact before they were built, in even ending indiscriminate salmon drift net fishing at sea – all of these came from individual complaints from Ireland’s residents pursued systematically and formally by the Environmental Directorate’s Compliance Division.

In the waste case (2005) alone, 13 separate complainants, all unknown to each other, had written to the Commission begging for the 1977 Waste Directive to save them from poisoned water, unbreathable air, and infestations of rats.

Minister for the Environment Phil Hogan paid an indirect compliment to the Commission in the Dáil this March when patting himself on the back for reducing the number of infringement complaints from the 21 he had inherited to 7. He listed the diverse areas of the environment that the Commission has relentlessly pursued over the past decade:

“In reducing the number of infringements, my Department has addressed compliance issues through, inter alia, a range of primary and secondary legislation across the broad spectrum of environmental areas such as water services, air quality, waste, energy performance in buildings and planning, as well as targeted measures to provide for consistent and transparent implementation of these legislative provisions”

Sceptics will be quick to point to lacunae in transposition, implementation and particularly enforcement, but even the most critical would admit that Ireland’s environment would be unrecognisably worse today without this history of litigation.

But the new system – called PILOT – has effectively brought an end to a decade of progress.

Even in the promotional literature that the Commission provides it is clear what the PILOT system intended. Heralded as ‘A Europe of Results – Applying Community Law’ in 2007, the 2011 review puts it succinctly. PILOT is intended to “correct problems related to Member State compliance with EU law at an early stage by finding out-of-court settlements through the establishment of a partnership relationship between the European Commission and Member States”.

The Commission’s 2013 Internal Market Scoreboard credited the introduction of PILOT for  a dramatic reduction of infringement proceedings across the EU, ranging from 25% for Greece, 38% for Spain, 37% for Italy, to 49% for Belgium.

In fact, one of the first Irish PILOT cases was over the impact of farmed salmon on protected wild stocks. Opening in 2009, it was closed in 2012 but reopened when documents released under Access to Information showed that the Minister for Agriculture had denied holding and not provided one of the ‘express views’ sought in the original PILOT request – a Report from Inland Fisheries Ireland [IFI] on salmon farming’s impact on wild fish that in fact devastated the Department of Agriculture’s benign position.

The file showed that after repeated written concerns the Commission had not received the “full Irish position on these matters”, Liam Cashman, the longstanding acting Head of the Compliance Unit, finally telephoned the EU Secretariat in the Department of Foreign Affairs in September 2010 and told them that unless the IFI Report was received, the Commission would have to “reserve the right to move the case to infringement proceedings”.

The result was Cashman’s transfer out of the unit, a move that shocked many and left the Unit without the unparalleled professional skill that had led them to over a decade of successful ECJ proceedings that changed EU and national (including Irish) law and practice.

A subsequent Irish Ombudsman’s investigation into why the Department had denied holding, and failed to pass on, these ‘express views’ found that the process is “quite informal and operates on a partnership basis between the Commission and Member States”. Ireland’s ‘Lead Department’, the sole voice allowed to enter responses in the on-line PILOT system, was the Department of Agriculture, whose agencies license and  promote fish farming – the subject of the complaint. IFI’s role is subsidiary  to that of the Minister for Communications and Natural Resources.  Though charged with protecting wild fish, it could not directly communicate their views to the Commission.

Ireland’s Ombudsman accepted the Agriculture Department’s position that the IFI report would have had a “disastrous effect on Ireland’s reputation, containing serious inaccuracies, omissions of relevant facts, and misleading commentary”. In fact the Ombudsman praised the Department over its concern for Ireland’s reputation: “It cannot knowingly allow a Report that is inaccurate to be furnished to the Commission”. Since it had told the complainant that that “we did not consider any of the reports pertinent to sea lice because they did not have the expertise” the Ombudsman’s decision to accept the Department of Agriculture’s version of the sea-lice facts is as far from legally grounded as it is possible to imagine.

Worse yet, it used the difference of opinion to justify closing the case, stating that it required “uncontested scientific evidence” when general standard for the European Court (indeed for any civil court) is the “balance of probability”

Two other recent PILOT cases have been closed by the Commission with no public notice and no documentation having been made available. One concerned the continued spreading of slurry beyond the permitted time period – ie extending slurry-spreading into November, when intense rainfall is more likely leading to eutrophicaion of our rivers, lakes, and beaches. The Report requested on foot of the complaint by the Commission from Ireland as part of the Nitrates Regulations Review in December 2013 was scandalously not analysed by the Commission in concluding the case and is not publicly available.

Of perhaps more interest at the moment is the third recent PILOT closure (24 October 2014) concerning chemical exceedences of the legal parametric values in Irish water supplies. At concern are trihalomethanes, a group of by-products of the chlorination process – that are associated with cancer. A 2013 article in Village, using Environmental Protection Agency (EPA) Drinking Water Report figures, showed that more than 600,000 consumers were receiving water in excess of the EU and WHO recommended levels.

This PILOT complaint was about the failure of the Irish authorities – the EPA, the Local Authorities (and Irish Water) – to inform consumers that the water they were consuming exceeded safe chemical limits – a particular concern for pregnant women. The PILOT closure letter blandly stated: “The competent authorities are also required to inform the consumer and give them the necessary advice”. There was no request to the Irish authorities to do so and no explanation to the complainant of why nothing was being done to ensure the public was informed, even in the case of the 200,000 consumers whose trihalomethane-contaminated supplies are currently specifically on the EPA list for urgent ‘Remedial Action’.

Since they could conceivably lead to infringement proceedings before the Courts, and despite their informal nature, the Commission has determined that the PILOT proceedings are covered by legal exemptions protecting all documents from public release during the course of the procedure.

Last year the European Environmental Law Network joined the voices led by Ludwig Kramer, the highly respected former Head of the EU Environment Directorate’s Governance Unit, calling for recognition of the right of complainants to see the member state’s defence before a decision is made; the requirement to publish a register of complaints and their status, the right to act as a ‘friend of the court’ in the proceedings; and a right to a review of PILOT decisions.

Kramer, who first raised his concerns in 2008 when the PILOT was established, concludes: “whether an EU Member State applies a provision of EU environmental law or not is not just a matter between that State and the EU Commission. It is a matter of public interest”. But in the EU, in environmetal affairs as elsewhere, the balance is shifting to the State and the Commission and away from the public and the citizen. •