EU Complaint RE Proposed Waste Water Treatment Plant for Moville Greencastle

From: endacraig
Subject: RE: EU Complaint RE Proposed Waste Water Treatment Plant for Moville Greencastle
Date: Mon, 12 Oct 2015 19:52:05 +0100

Hi Attracta,

Many thanks for your comprehensive overview of our case.

All the concerns we had highlighted in my affidavit were swept aside in such a cavalier fashion as to make it seriously depressing to recognise the total non-access to justice.

Judge Hedigan, having delivered his judgement then invited the legal teams to approach the bench whereupon he stated
‘ considering what i have said here today you may well decide to make an application ‘. Our legal team explained that Hedigan had decided, should i attempt to make an appeal yo the Supreme Court, that he would consider my J.R. as vexatious and apply the legal costs of the opposing side to me. His justification was my overwhelming ‘ blackening ‘ of the good name of Mr Conal Boland of ABP.

He wished DCC all speed with the building of the long overdue treatment plant which had been ‘held back’ long enough.

Had i a proper understanding of how the J.R. process would take advantage of the O’Keefe judgement i can safely say this is a road i would not have travelled.

Had it not been for the good work of Mr Peter Sweetman in identifying Article 76 of ECJ ruling c50-09 our complaint would have been consigned to the dustbin.

I take on board the various points you outline re the Compliance Committee and will continue with the Commission.

I am including comments from a number of supporters and members of the campaign in relation to your email and on the use of the O’Keefe judgement in the J.R. process.

Best regards,
Enda Craig.

Don McGinley Comments
Hi Enda,
What I find most disturbing is that the case in the High Court did not deal at all with the concerns you had in relation to the environment and which were articulated in your affidavits. The Judge completely sidelined these concerns and did not examine them at all, indicating BP were the competent Authority on issues of the environment and he was not going to adjudicate on these issues. He relied on the O’Keefe judgement which we hold is totally in conflict with the scrutiny required for cases where lasting damage is to be done to the environment.
The Judge then focussed on the bias argument vs Conal Boland, and this is what drew the ire of the Judge, allowing him to penalise you Enda with the threat of costs.

For what it is worth , though only a lay person, I find it amazing that the manner in which Judge Hedigan examined this case has not raised serious concerns in Europe with respect to his examination ( lack of) of the potential environmental consequences of the WWTP at Carnagarve.

As a group , I think we are far more concerned with this than we are with Aarhus. Nothing has changed here in that a High Court Judge can choose to ignore legitimate concerns in relation to the environment as presented in your case.

Don McGinley

Enda Craig Comments
It makes a nonsense of the notion of the possibility of getting a fair and reasonable access to justice.

It becomes difficult to have any respect for a system that is in itself deliberately structured to frustrate.

The O’Keefe principles as used in our case is an obscenity and case law that follows from its subsequent use exacerbates the initial wrongdoing.

Anyone with the prior knowledge of how O’Keefe will be exploited/used at Judicial Review would think twice before going there.

Karin Dubsky Comments
Fully agree – that is what needs to change

In my books both are v important points to change. A judge not considering the environmental argument is just not reasonable. Not having access to justice ( Aargus plank) – to be able to challenge this judge decision is equally or even more frustrating.

Al Ballisty Comments
Dear Enda,
It seems that the laws are designed to squash the very reality that laws are suppose to promote and protect, that is, justice for all. I found Attracta’s response to be very complicated, yet thorough. There are certainly points that she made that you and the members of “save the foyle” know much better than I will ever know. Yet, it seems to me that she is saying that if any decision is made in favor of you and against the DCC proposed Waste Water Treatment Plant and its discharge, the decision would only impact future cases similar to yours. It seems that it only tells the DCC that you did something wrong; now don’t do it again, but does not hinder them from going forward with their present plan. The access to Justice process seems to be a burden of mazes that are like arrows being constantly shot at an Achilles hindering even the smartest, the strongest, the most moral and expert to fail to exit this maze of legal proceedings. It is so difficult to sort out the “right” course of action; the courage to be or not to be! Either decision demands courage. To go forward demands commitment of time and money, the appropriate timing given the different complaints and laws being addressed by the commission. Attracta states: The Commission will only do that if it feels the situation is ongoing and needs to be addressed. It seems to me that the situation is ongoing and needs to be addressed, but how does the Commission know this; how would information be urgently communicated to them?. This is where I find hope in going forward. But will the Commission be like our Supreme Court of US who refuse to hear a case after it took years of arguments and money to just reach the eyes of the judges?. Yet, Not to go forward is ?????? That is the question it seems to me. I wish I could be helpful, but I know that is up to the “Savethefoyle” committee and its members.
I continue to follow your input. Maybe, I misinterpreted Attracta’s input.
All the Best,

Date: Fri, 9 Oct 2015 20:24:17 +0100
Subject: Re: FW: EU Complaint RE Proposed Waste Water Treatment Plant for Moville Greencastle
To: endacraig


Sincere apologies for the delay in getting back to you. Ian gave me a very hard time on your behalf yesterday in fairness to him.

I should explain I am not a public resource, nor am I resource available to the public. I am significantly over-stretched with what I am specifically tasked to deal with, but always try and help if I can – but that is when I have a window to do so. You better than most can appreciate the reality of court and other procedural deadlines, and frequently my input is around those. So given there was no immediate deadline or urgency I am afraid responding to you invariably does get delayed when time-bound urgent priorities are in play.

I should also make clear I am also not a lawyer, but have quite a bit of experience of Judicial Review, and a good understanding of the EU Commission’s infringement processes and the role of the CJEU, and also of the Aarhus Convention and its structures, and it is in that context I reply.

I can see you have gained a lot of painful experience and hope the following is sufficiently clear to you, given you are clearly far from a novice. However if it isn’t clear – please email me back and I will endeavor to explain more clearly.

In reading your complaint – and the judgement by J Hedigan – I note your focus was on the scope of the review, and c-50/09 and costs. What really struck me as quite extraordinary was the decision to award costs against you which you indicate in your own narrative, or was it just a threat to pursue costs? I have as yet been unable to find the actual judgement on costs.

The specific matter of substantive review which you did yourself raise is very complex, and the Commission itself has been wrestling with this as Irish case law evolves sometimes taking one step forward in one case and two steps back in another.

I then turned to your correspondence with the EU Comm, including that with Antoinette. The Commission is pursuing infringement action against Ireland in relation to its Access to Justice, A2J obligations as she has explained. Your case is an important example of the issues at stake in that proposed action, which include a range of matters such as scope of the review, costs, standing etc. I am heartened to see Antoinette confirming your case is being included in their considerations and evidence base.

The Commission is very expert and there are people within it very committed to addressing these issues across the Board. I cannot think you could be in a better position in respect of having your concerns brought to the fore, and argued by very expert lawyers, with a view to bringing an action against Ireland to the Court of Justice of the EU, on the manner in which cases like yours are decided.

It is important to realise such actions don’t role the clock back generally and take many years, and it won’t revisit your decision. An A2J action will only focus on how your decision is non-compliant with the Access to Justice provisions of the Directive. But you should engage with the Commission in respect of the impact of the costs order in particular, and also on the matter of how it evidences how Ireland complies with the 1st and 2nd complaint in c-50/09.

I and others also engage in respect of the highlighting of cases which demonstrate Ireland’s non-compliance to the Commission on the A2J obligations. In our discussions with the Commission I will refer to your case and experience to the Comm in our discussions with them on A2J.

I am at a loss to understand the costs award – as the preliminary provisions for costs protection were introduced in S50B of the Planning and Development Act, by the Planning & Development (Amendment) Act in 2010. In short these cost protection provisions would have meant that because your case was an EIA case – you would not have been exposed to an order for costs against you as – ( which I understand you say you were ) – unless the Judge found that your action was frivolous or vexatious or you conducted the proceedings in an inappropriate manner. These are terms and matters defined in other case law.

So it would seem to me as a lay person that you should have been in principle covered by costs protection, save for those caveats around frivolous and vexatious etc, albeit the application pre-dated these provisions, which may have created a difficulty. However given s50B was arguably complying with an outstanding transposition issue to comply with the EIA directive – I am not sure the timing of the application is relevant. But the Commission can better advise on that. I may be missing something here as its getting late and its been a long week.

These provisions on cost protection – were introduced into the EIA Directive to make it comply with the Aarhus Convention.

You can find the EIA directive requirements in respect of review of decisions in Article 11 of the current codified version of the directive.

However I really would like to see the Judge’s order on costs before I would comment or consider this further. I can’t see it on and it may be it wasn’t a published order. I would be grateful if you could send me a copy, so I am in a position to consider these more fully.

In respect of the Aarhus Convention as it seems Michael has mentioned to you – I am honestly not sure that will be of much use compared to what is being done at the Commission level on your case.

The Compliance Committee of the Convention – will only make recommendations in respect of future cases, it will do nothing to quash the decision which the Judge made in your case.

They will also look to what is required currently in Irish law and Ireland in defending their position will point to many decisions where cost protection worked.

In respect of the substantive legality point – the matter will be argued by Ireland with reference to a whole range of other cases and it will be a very very complicated legal argument. There is also a danger that if the case isn’t argued well – the compliance committee who have only the capacity to look at matters briefly might come to the wrong or an not fully informed decision which would be deeply problematic for many other cases. I say this with the greatest respect to the committee who are very expert – but their engagement is voluntary and time limited to a few weeks of hearings each year, and so you will be conscious of the burden you would be taking on and the potential impact of it going badly.

Despite the fact the Compliance Committee is intended to be accessible to lay people, the countries defending any communication/complaint made against them do weigh in with heavy legal argument and expertise.

The process is open to anyone – to apply to – and it is entirely up to you on whether you want to go down that route. But I would have to question what value it would bring and at what cost to you in terms of time and commitment etc. I know all too well the amount of effort involved in these matters. Whereas the Commission has taken up your case and I feel it is worth pursuing it and supporting them, and or at the very least giving it a while to see what the Commission is going to do on it. You aren’t the only one watching them and prompting them to act.

Finally – the Compliance Committee of the Aarhus Convention is unlikely to engage if there is a case in process by the Commission, as I understand it. However no case as yet has been mounted – but the Commission is we understand working on a reasoned opinion which is the step before proceedings are initiated.

The further factor here in relation to the Commission taking a case is the new Aarhus Bill. Both the Commission and the Compliance Committee will be watching that closely. The timing here is key – because the Court of Justice will decide on ireland’s compliance based on the law in place at the time a “Reasoned Opinion” is submitted against Ireland.

However the Commission is resource constrained and if it feels Ireland is about to put things right then there is no need to take action to ensure cases like yours don’t happen, and they will wait to evaluate the efficacy of those new laws.

From your point of you as I understand it your objective is to highlight the issues in how your case was decided. The Commission will only do that if it feels the situation is ongoing and needs to be addressed. I can appreciate this is unsatisfactory – as you might wish to be vindicated in highlighting issues with your judgement. The Compliance Committee I understand would be happy if new laws were introduced which meant your experience, to the extent it was found to be in breach of the convention, would not be repeated.

So this new Aarhus Bill is something we are engaged in and the experience of your case will be something we will be highlighting in our discussions with the Department on what changes need to be introduced in that bill. There are no guarantees but we will argue as strongly as we can.

I hope that provides you with some context to understand your options and how well positioned you are with the Commission.

As stated earlier if any of the above is unclear come back to me.

My heart goes out to you – after 10 JR’s I know the effort and the heartbreak involved, and I remain committed night noon and morning to improving the manner in which decisions are reviewed to enable proper recourse to justice in environmental decision making.

Best regards

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