âThe solutions to the environmental crisis are not just in science, they are in lawâ
On dark evenings, Cliona Kimber’s garden is as bright as day under the powerful lights of the Luas tracks behind her Dublin home.
The lighting there would light up a football pitch,â she says. “It’s way too intense for what’s needed.”
Persistent light pollution can affect people’s health, and disturbance to birds, insects and animals that take inspiration from light can be serious.
But the regulations surrounding it are vague and while there are laws offering general protections for wildlife, making them apply in specific circumstances, assigning liability and obtaining remedies are often impossible. . Even for a lawyer like Mrs. Kimber.
She is president of the Climate Bar Association, a group of lawyers concerned with how environmental justice is, or is not, delivered in Ireland.
It’s a vast and growing field, manifesting itself in high-profile litigation against polluting companies and inactive governments around the world.
But while the big cases are intriguing, it is the small detail that the association wants to address first.
A tree is felled without a permit, a hedge is cut out of season, a grassy edge overflowing with wildflowers is sprayed with weed killer, a river is regularly polluted, a forest fire is lit and, for the most part, no one is taken into account and no measures are taken to prevent this from happening again.
Current enforcement mechanisms for environmental regulations are âtoothless,â says Kimber. “It’s just not viable as a system right now.”
Resources are part of the problem, she says. Public bodies such as county councils and the National Parks and Wildlife Service have limited time and staff to prosecute.
But a bigger hurdle, she says, is the law’s formulation in almost exclusively criminal terms.
âThere are laws against cutting hedges out of season, but it is a criminal offence.
âWho is going to impose criminal law on his neighbors?
“No ordinary person wants to go to the criminal courts for a matter like this,” she says.
There may be civil remedies, but it is also a complex route.
âTraditionally the law would deal with a situation where I did something to you or you did something to me and it’s nobody else’s business.
âThis is not the case when the environment is affected. It affects me, yes, because I’m annoyed and concerned about what happened, but I’m probably not directly hurt.
âAnd yet everyone is concerned because the environment is for everyone.
“So it’s complicated and again you’re looking at going to court and the system is almost designed to stop people from going to court.
“There’s no investment in judges, you can’t get a court for a hearing, there are queues for everything.”
All of this leads to a proposal from the Climate Bar Association for a new way to enforce environmental law.
Ms. Kimber used to lecture on environmental law, but her area of ââpractice is now labor law and she sees the Workplace Relations Commission (WRC) as a model for dispute resolution that could also s apply to the environment.
“You can keep the criminal penalties because they may be necessary in the event that something absolutely awful happens, but there are a whole range of mechanisms to enforce the law,” she says. “The WRC uses mediation and arbitration, it can impose a fine and order reinstatement.
âIt’s a much less threatening and less confrontational forum.
âIt has staff with all the expertise, but it’s inexpensive and accessible to ordinary people.
“There are other mechanisms that could also be deployed – a penalty point type system, for example.
âAlternative mechanisms are used in family law and at the Private Residential Tenancies Board as well, so the concept has proven itself. But we need to look at how to move the legal system forward to accommodate environmental disputes, which will only grow.
An information deficit also hampers citizen engagement in environmental protection, Kimber said.
âPeople have nowhere to go. If you have a job or welfare problem you can go to Citizens Information and you can get all kinds of fabulous information but not about environmental rights and law so how does the ordinary person participate to its application? Â»
The association will present its proposals at a special symposium on 21 January.
Members also work on other projects, such as greening their own buildings and surroundings, and provide research and advice free of charge.
More recently, they drafted a bill for the Native Irish Honey Bee Society which, if passed, would ban the import of bees that threaten the survival of native species.
The bill has since been introduced to Seanad by Green Senator Vincent Martin, with broad support. “Our role was primarily to ensure that a ban could be introduced without breaching EU trade laws,” says Ms Kimber.
âScience tells us that this ban is necessary and we need to listen to science on climate and biodiversity. But the solutions are not only scientific, they are also legal. This is the legal space we want to occupy.