The Regulatory Environment I: Sources of Law

Environmental Science and the Law - The Regulatory Environment I: Sources of Law

European Law

Domestic Law

Common Law

International Law

European Union Law

The Legislative Role of the European Union

European Law in Ireland

Direct Effect/Supremacy

Van Gend en Loos
Costa
Internationale Handelgesellschaft

Constitutional Problems for Ireland

Referenda

European Communities Act, 1972

Types of EU Law

Directives

Article 249 (ex Article 189) of the EC Treaty states that directives “shall be binding as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”.

Direct Effect?
Van Duyn

Consequences – reliance in national courts – actions in ECJ for failure to implement

Irish failure to designate zones vulnerable to nitrate pollution or to adopt a nitrate action programme as required under the Agricultural Nitrates Directive.

Irish failure adequate measures to ensure the correct implementation of a number of Articles of the Waste Framework Directive

Regulations

Direct Effect

Little Role in Environmental Law

Why?

Decisions

Directly binding on the Member State to which it is addressed.

Little role to play.

Judgments of the European Court of Justice

Interpretation

Actions over implementation

Finding EU Law on the Net

Freely available on the internet, primarily through the European Unions website at

Web-site of the Commission contains a massive database of policy-documents and legal materials in relation to the environment.

One can also use to search to ECJ decisions.

Domestic Law

Primary and Secondary Legislation

Democratic Concerns About the Use of Regulations

Delegation of legislative power? Article 15.2.1˚

Method of implementing EU Law. Article 29.4.3.

…no provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations or membership of the Communities…

Irish Legislation on the Web

The Common Law

Judge-Made Law

Ratio Decedendi

Develops over time

Case by case

Role in Environ Law?

Nature of Common Law Remedies – Personal

Case-Law on the Web

New to the internet - expanding.

Best databases are fee-paying, such as JILL, Firstlaw and Lexis-nexis.

and also through

(not firstlaw.com as in your notes…sorry)

Private Nuisance

Tort

Unreasonable interference with a persons use or enjoyment of land.

In Hanrahan v. Merck, Sharp and Dohme,[1] Henchy J defined it as follows:

It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that.

Possessory Interest

Must have a proprietary or possessory interest in land to sue.

Real ownership v Adverse Possession

You cannot sue one person for creating a nuisance to lands which you do not own.

Reasonableness

Reasonableness of interference is key.

Molumby v Kearns

Residential area of Foster Avenue in Mount Merrion
Noise and vibrations – industrial estate
O’Sullivan J in the High Court
Undue Interference
Compromised result

Hypersensitive plaintiff
R v Secretary of State for the Environment ex parte Watson
Organic farming affected by release of GM pollen

Causation

Interference must be caused by the actions of the defendant.

Hanrahan v Merck Sharpe and Dohme.

Farmer sued a chemical company for damage allegedly caused by emissions from their factory to his land and his cattle.

Experts testified that, in fact, the damage done to the cattle could have been caused by other factors.

So difficult here – tried to change the law – didn’t work

But it may some day…

Must the Damage be Foreseeable?

Damage actually done must be of a type which is would foreseeably follow from the interference complained of.

Cambridge Waters v Eastern Counties Leather

Affected water supply by seepage of tanning chemicals
Damage not foreseeable in the 1970’s

Scanell has said that “this decision was very much motivated by the realisation of the practical effects of deciding otherwise. It would cause grave problems if polluters were made liable for historic pollution caused by actions which were not considered wrong at the time they were taken.”

Remedies

Damages/Injunctions

Nature of common law remedies

Consequences

Bellew v. Cement Ltd

Different approach now? Gleeson v. Syntex Ltd

Interlocutory Injunctions

Delay of legal process

Lower Standard

Prima facie case

Damages not an adequate remedy

Undertaking in Damages

Public Nuisance

“Grand-scale” nuisances which may affect the public at large.

McMahon & Binchy - “injury to the reasonable comfort and convenience of the public of a section of the public”.

Examples

The holding of concerts
The placing of obstructions on the roads
Running a golf club in such a way that slices from the tee tend to fly off onto a nearby road

The Rule in Rylands v Fletcher

…the person who for his own purpose brings onto his land and collects and kept there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

Per Blackburn J in Rylands v Fletcher

Non-Natural Use

House of Lords Addition
Cambridge Water v Eastern Counties Leather.
Tanning chemicals – natural or not?
Increased risk of danger as the test? – Rickards v Lothian

Forseeability

The harm which the escape would cause must be reasonably foreseeable.
And the means by which the substance may escape must have been foreseeable.

Materials You Bring Onto the Land

Healy v Bray UDC – rockslide

Explosions on Land – dangerous effect escapes.

Miles v Forest Rock Granite Co (Leicstershire) Ltd

Negligence

Breach a of duty which one person owes to another which has caused harm or damage which is a reasonable foreseeable consequence of that breach.

The existence of a duty – the duty of care

The breach of that duty – the failure to exercise the proper standard of care

Causation as between the breach and effect

The Duty of Care

McMahon & Binchy

The concept of duty is a control device whereby the courts may, as a matter of law, limit the range of liability within what they consider to be reasonable grounds.

Donoghue v Stevenson

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be liable to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly effect by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.

Foreseeability/Proximity/Policy

The Breach of a Duty

Failing to live up to standard of care

The probability of the damage

The gravity of the damage

The social utility of the conduct of the defendant

The cost of eliminating the risk

International Law

Treaties

Binding Effect?

Sellafield and MOX Facilities

United Nations Convention on the Law of the Sea

[1] [1988] ILRM 629.