Environmental Law and Policy in the EU: Access to Information, Liability, and the Precautionary Principle

Environmental Law Mid-term Test 2024 – 2025

Length: 650 words are maximum for each answer. A 10% extra will not be penalised.
There is no need for footnotes or full references. Please mention short titles of cases
and names of authors of academic works referred to in the body of the answer.
Details: Please attach the Assignment Submission form to the answer script when
uploading the test on Blackboard. It should contain your Student Number, Module
Title, whether you’re doing a 5 or 10 credit module, and plagiarism declaration.
Submission: Please Upload your finished script in Word or PDF on Blackboard under
‘Assignment: Take Home Test’ by 10:00 am, March 11, 2025. Email surya.roy@tcd.ie
if you have difficulties with submission before the deadline.

Section A: Problem-based question (10 points)

Please answer one question from this section.

1. Member States in the EU, including Ireland, are concerned that US military support through the North Atlantic Treaty Organization may be unreliable in future. In response, the Government of Ireland, is seeking to explore options on increasing military spending. The Government is also concerned that import tariffs imposed by the US may unduly affect the Irish economy, and is considering economic options in the agricultural sector to retain US
   investments. For this purpose, the Minister for Agriculture, Food, Fisheries and the Marine, and the Minister for Defense, jointly commissioned McKinley and Co, a private consultancy to provide a report on policy options on increasing military infrastructure, as well as regulatory options on attracting US investments, and their impacts on Ireland. Professor Joy, a Lecturer in Environmental Law in Trinity College Dublin, has obtained informal information that McKinley has completed this report. Professor Joy and Friends of Climate, an NGO registered in Ireland, are concerned about the environmental impacts of military infrastructure, as well as about the lowering of environmental standards to attract and maintain US investments. Professor Joy and Friends of Climate approach you, a promising environmental law solicitor, to help them with concerns that might arise in obtaining the report from McKinley via the Commissioner of Environmental Information. While they would ideally like a copy of the report now, they also wish to know if it would be easier to obtain this report at a later stage once the Minister for Agriculture and Minister for Defense are in receipt of the report. They are aware that McKinley being a private firm, confidentiality, remoteness, and whether the sort of information they seek can truly be called environmental information, are all concerns. But what about wide access to environmental information, they inquire.
2. Ivanko is a private perfume manufacturing firm registered in Ireland with three directors, one of whom is Dark Zucks, owner of the media platform XYZ, who uses dedicated consumer information to sell perfume. This is his only role. Ivanko bought a property in 2018 that was earlier owned a pesticides manufacturing unit, given that the infrastructure required for storage are similar, being largely petroleum based products. In 2020 a leak was detected
   in the petroleum storage tanks, and there was evidence of long-term damage to the soil in the surrounding locality, including air pollution and groundwater pollution. Groundwater pollution by hazardous materials sets criminal penalties in motion. The Environmental Protection Agency (EPA) alleges that Ivanko is an operator under the Environmental Liability Directive, and hence would be liable for clean-up costs. Further, the EPA is of the opinion that all three directors are criminally liable for air and water pollution, and would be required to pay the requisite fines.

   Ivanko argues that they cannot be causally responsible under the Environmental Liability Directive. The three directors further and individually seek to argue that they cannot be held criminally liable to pay fines as there was no mens rea, and the directors of companies cannot be held personally liable as Irish law does not recognise fall back orders. With reference to case law, advise Ivanko and the directors in this matter.

Section B: Essay question (10 points)

You will be required to answer one question from this section.

1. The requirement to respect national autonomy may be in tension with the principle of effectiveness in implementing the requirement to provide wide access to justice in EU Member States. Discuss with the help of examples in EU and Irish case law on standing and legal costs in environmental cases.
2. The precautionary principle in the European legal order is more nuanced than ‘it is better to be safe than sorry’. Discuss with examples.