Earlier this month two important judgements of the European Courts of Justice were referred back to the Courts by the European Commission which went unreported in the media. Both cases are likely to have a significant bearing on the future implementation of EU environmental law in Ireland and result in very significant costs to the taxpayer.

Ireland has the unenviable distinction of having one of the worst compliance records with EU environmental law in Europe. However, while Ireland has lost pretty much every ECJ case it has ever faced, never before has Ireland received fines or been to a stage in the ECJ process where fines are inevitable. This has emboldened successive governments to continue a liberal approach to enforcement and constantly seek endless derogations to delay implementation in order to pander to various sectoral interests. However, now the Commission has lost patience and the chickens have come home to roost. In the case of C-188/08 (License and Inspection of Septic Tanks) the Commission has sought a lump sum fine of €2.7 million and €26,173 for every day of non-compliance. In the case of C-66/06 (Implementation of the EIA Directive for ‘on-farm’ developments) the Commission has sought a fine (by formula) of approximately €3.8 million and a further €3 million in legal costs. The Commission argued in both cases that the judgements were now two-and-a-half years old and Ireland does not appear to be close to achieving full compliance. Interestingly a week after these cases, the EPA launched a public consultation on a National Inspection Plan for Domestic Wastewater Treatment Systems with a tight deadline of just 3 weeks for comments.

Minister Hogan has been desperately trying to close off the fifteen or so current ECJ cases against Ireland before he takes the reins as the de facto minister of environment for Europe during Ireland’s forthcoming presidency commencing in January 2013 (See here for a useful overview prepared by Friends of the Irish Environment). However, while we will have to of-course await the final ECJ judgement, fines now seem certain and based on the experience of recent cases against other EU countries, fines are generally imposed by the ECJ six months after the hearing. So in these cases we can potentially expect fines around April 2013 – right in the middle of the Irish presidency. This is likely to be of significant embarrassment to the Government but, more importantly, a cause of further distress to the hard pressed tax payers who face the prospect of a further bill of at least €10 million.

The predicament faced by the government is stark. Both of these cases relate to contentious rural issues with very significant opposition to the introduction of septic tank registration and charges, in particular. In order to placate the public and encourage registration the Government has reduced registration fees, is stressing that a ‘risk based’ approach to site inspections will be applied and retrofitting costs will be minimal. However, this has failed to assuage the public and with fines from the ECJ applied on the basis of each day of non-compliance the final bill could potentially be much higher. It is also unlikely to satisfy the European Commission. Given the sheer scale of new unsewered ‘one-off’ dwellings permitted during the ‘Celtic Tiger’ (170,000 since 2001) in locations where soil characteristics are likely to be unsuitable for an on-site waste water system together with the complete abandonment of any proper risk assessments; it is very unlikely that the retrofitting of septic tanks to comply with EU water quality legislation will be inexpensive.

A study in 2005 by Trinity College Dublin in 2005 of 74 randomly located septic tanks in Leinster found that just 5% had soil conditions suitable for the installation of a septic tank. This would appear to be corroborated by the River Basin Management Plans published in 2010.  For example, the North West River Basin Management Plan states “In the North Western IRBD there are approximately 60,000 unsewered properties located in areas where the hydrogeological characteristics mean that inadequate percolation is available.” Again, in the Shannon IRBD ‘there are approximately 83,950 unsewered properties located in areas where the hydrogeological characteristics mean that inadequate percolation is available.’  A detailed study of five selected on-site systems by the National Centre for Freshwater Studies in 2008 found that in each case the on-site systems were either poorly maintained, non operational or poorly installed; and the majority of sites are unsuitable for conventional septic tanks. Is it possible that one of the key reasons why successive governments have dragged their feet on this issue is because the actual cost of complying with this judgement and EU water quality legislation could run to hundreds of millions of euro, if not more?

From an environmental perspective the implementation of multi-million euro fines are welcome and will hopefully force the government into addressing Ireland’s woeful environmental record, poor enforcement of environmental law and to stand up to vested sectoral interests. From the tax payer’s perspective it is just a further reminder of the horrendous legacy costs associated with Ireland’s failed experiment in deregulated neoliberalism in land-use planning policy.

Gavin Daly

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