High Court environmental rights constitution

Case referred to Europe over public access to environmental documents

September 11th, 2019

A challenge from an environmental NGO in relation to the lack of public access to documents for legal cases has been referred to the Court of Justice of the EU (CJEU).

The case stems from a 2016 request from Friends of the Irish Environment (FIE) for access to documents from an environmental case that it was not involved with but had an interest in the arguments made in the case.

FIE wrote to the Courts Service requesting access to the documents in line with the principles of access to environmental information outlined in international conventions and European and national law.  

FIE argued that members of the public who may wish to take similar environmental challenges in the future are missing out on access to important documents that could benefit their arguments and allow them to see what evidence was presented in previous cases.

Traditionally, the Courts Service of Ireland only allowed for parties to legal hearings and their lawyers to request access to litigation documents such as statements of defence, affidavits, and written submissions.

Additional access under certain criteria was granted to journalists last year, however, members of the public still cannot access documents, even where documents are prepared for the State or public bodies using public funds.

While judgements are made available on the Courts Service’s website, the only way for the public to obtain detailed knowledge of ongoing case proceedings is to attend court hearings and take notes.

FiE and Climate Case supporters outside High Court Photo: Niall Sargent
FiE and supporters outside High Court for Climate Case Ireland Photo: Niall Sargent

The Courts Service refused access to the documents following which FIE appealed the decision to the Commissioner for Environmental Information who ruled in favour of the Courts Service in 2017.

FIE appealed the decision to the High Court in September 2017 and after a two-day hearing in April 2019 Ms Justice Miriam O’Regan adjourned the case in order to ask the CJEU for a preliminary ruling on a point of EU law concerning public access to environmental information.

The CJEU is also examining specific questions in relation to FIE’s challenge of a proposed liquefied natural gas terminal close to the Shannon Estuary. FIE has several other important cases currently before the Irish courts, including the much-publicised Climate Case Ireland challenging the State’s mitigation plan.

A judgement is expected on 19 September, and the following day another ruling is due in relation to the group’s challenge of new regulations to take large-scale peat extraction outside of the planning regime.

The group is also challenging the climate ambition of the National Development Plan, as well as unauthorised large-scale peat extraction sites, and is part of a pan-European project critical of the EU’s treatment of forest biomass as a renewable and carbon-neutral fuel.

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