Environmental Law

Lessons from Five Ecological Disasters

In Dublin earlier this year, Ecumenical Bible Week highlighted the responsibility of Christians in caring for our environment. Barrister Brendan Guildea facilitated a lunchtime discussion looking at environmental law. “Christians can often be aware of the issues facing the environment but don’t always follow through with good choices (e.g. recycling, choice of cleaning products, etc.). We need to ask, ‘How can individual Christians and groups of Christians take action?’” Brendan said. Here are some of the cases highlighted at the event:

 

FROM VW CARS TO PENGUINS
The recall of 2.4 million cars in Germany in October 2015 brought attention to EU law governing motor vehicle emissions. Surprisingly, less than four months later the EU Parliament made a decision, effectively permitting vehicular emissions to increase from 2019. Shouldn’t we be going the other way?

The difficulty with collective environmental negligence is that damage isn’t localised. The EU Parliament’s decision has a potentially disastrous effect as far away as the Antarctic Circle – the delicate habitat of penguins, amongst other precious and much-adored species.

 

BP OIL SPILL
In April 2010, the world looked towards the Gulf of Mexico. Hundreds of images depicted the frightening scale of damage inflicted by miss-handled “black gold” on the unfortunate flora and fauna.

Although 11 men died in the aftermath of this disaster, not a single custodial sentence was imposed on those legally responsible for BP’s negligent activities. The company had to hand over a mere $20 billion to the US government. Today BP is valued at $99 billion (Forbes).

Is such a fine enough of a deterrent for the corporate elite or should criminal liability apply strictly?

 

ECO WARRIORS, ENVIRONMENTAL IMPACT ASSESSMENTS AND GLEN O’ THE DOWNS
Ireland is blessed with a rare and vulnerable class of habitat: the glacial oak forest. And, sure, didn’t we decide to put a dual carriageway through it – later upgrading to a motorway because of the life-changing benefits of that extra 20km per hour.

The environmental impact assessment was carried out to the letter, as per EU Directive, but the project was given the go ahead. Several eco warriors took up residence in the forest but were eventually removed by An Garda Síochána. One determined Irishman, Dermot Murphy, took a private legal action against Wicklow County Council. Our Supreme Court eventually dismissed this action on 28 January 2000.

How was this permitted? One technical legal answer can be found by reading our seemingly innocuous Roads Act 1993 and European Communities (Natural Habitats) Regulations 1997. These effectively exempt any development carried out by or on behalf of the National Roads Authority from legal challenge under environmental law, even if the development is on an EU protected site.

 

CHINESE-AUSTRALIAN TRADE AND CORAL REEFS
In the age of super-tankers, we all need to learn about… ballast. Some ships take on five million kilograms of seawater, including an assortment of critters therein, in order to keep trim in rough waters. The problem begins when, having arrived at its destination, the ship empties its ballast into a completely different eco system and thereby introduces invasive alien species.

The China-Australia Free Trade Agreement, which came into force on 20 December 2015, has sternly worded environmental provisions but also enables companies engaged in relevant commerce to bypass public courts. Therefore, at the highest level of Australian governance, there is an express contradiction in the trade and environmental protection goals.

 

NUCLEAR ENERGY – WHEN THINGS GO WRONG
One can learn a lot by following the most recent developments in the care of victims of the Chernobyl and Fukushima disasters. In the former, Ireland continues to play a humanitarian role to affected families (especially through Adi Roche’s Cork-based Chernobyl Children International). The more recent catastrophe in Japan was quickly followed by a comprehensive compensation scheme providing practical and immediate financial and health-care support to those effected.

The regulation of nuclear energy production seems to be tricky. To be an attractive proposition for investors there needs to be a relatively low degree of liability for negative environmental impact. But if nuclear energy is more efficient and inherently better for the planet than burning of fossil fuels, shouldn’t all cities roll out a Simpsons plant?

 

Brendan Guildea is a practicing barrister. After paying his dues at the criminal bar in Dublin, he is now focusing on e-commerce, intellectual property and family law. And also dabbles in human rights. He would like to acknowledge with sincere thanks his friend, Shane O’Toole, for guidance and expert input on the topic.