The meaning of “environmental information” under the AIE Regulations

In what is becoming a very busy legal area, the High Court has recently published another judgment concerning the interpretation of the European Communities (Access to Information on the Environment) Regulations 2007, as amended (the AIE Regulations). This arises in the context of a considerable increase in recent litigation relating to the AIE Regulations including M50 Skip Hire & Recycling Limited v Commissioner for Environmental Information, ESB v Commissioner for Environmental Information, and Right to Know (RTK) v Commissioner for Environmental Information (President of Ireland). 

RTK v Commissioner for Environmental Information (RTE) is the focus of this update. 

Summary

On 20 April 2021, RTK successfully challenged a decision by the Commissioner for Environmental Information (the Commissioner) in relation to the scope and meaning of "environmental information" under Article 3 of the AIE Regulations. The High Court found that broadcasting and reporting by a national public service broadcaster on climate change can be characterised as either a "measure" or an "activity" that may have an effect on the environment. The Commissioner had found otherwise.

Facts

RTK sought records held by RTE relating to how (a) RTE reports on climate change issues; and (b) RTE's creation of policies/guidelines on climate change reporting. That request was made under the AIE Regulations. RTE said it did not have records for category (b), but it did have correspondence for category (a). RTE did not consider these emails to be "environmental information" and refused to disclose them on that basis. Rather, they were characterised as "records… in the form of email correspondence and feedback from members of the public" in relation to RTE's coverage of environmental/climate change issues. After an unsuccessful internal appeal and review by the Commissioner, RTK successfully challenged the Commissioner's decision in the High Court. 

The definition of "environmental information" relevant to this case

The case involved a detailed consideration of what is meant by "environmental information". This is defined in Article 3(1) of the AIE Regulations as being “any information in written, visual, aural, electronic or any other material form on […] (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a)1  and (b)2  as well as measures or activities designed to protect those elements…” [emphasis added].

The Commissioner's argument

The Commissioner did not consider these emails to fall within the scope of "environmental information". His argument was that a mere connection or link to an environmental factor was not sufficient to bring information within the scope of the AIE regime. In his decision to refuse RTK's request, the Commissioner concluded that "broadcasting or reporting is not a plan, policy or programme with proposed actions that are likely to affect the environment…nor is it an activity, similar to the submission of a statement of views by a public authority in planning permission proceedings". Broadcasting was not viewed by the Commissioner as a "measure" or "activity". Rather, in the Commissioner's view, it was a function carried out by RTÉ in the exercise of press freedom and he did not consider it the legislature's intention (at an EU or national level) for information on a State broadcaster’s journalistic functions to be captured by the environmental information definition. The environmental effects from the reporting on climate change issues were considered by the Commissioner to be too indirect and too uncertain for the reporting to qualify as a measure or activity for the purposes of Article 3(1)(c) of the AIE Regulations. 

The High Court's interpretation of "measure" or "activity"

The High Court (Barrett J) disagreed with the Commissioner's narrow interpretation and found that the Commissioner had erred in concluding that broadcasting or reporting was not a "measure or activity". It found that broadcasting and reporting by a national public service broadcaster on climate change can be characterised as either a "measure" or an "activity". This was informed by case-law from the Court of Justice of the European Union (the CJEU) on the meaning of the term "measure". The CJEU found that its definition was not confined to legal acts or administrative measures, but applied more broadly to measures and activities which affect the environment. In Mecklenburg v Kreis Pinneberg, the CJEU noted that the AIE Directive purposely avoided giving any definition of "information relating to the environment" due to a concern that this could lead to the exclusion of any of the activities engaged in by public authorities. The Court found that it was reasonable to assume that a similarly expansive approach would be taken by the CJEU to the interpretation of what constitutes a "measure". Neither term was qualified as needing to be an "administrative activity" or an "administrative measure", nor was there a requirement for the activities or measures to be part of some category of decision-making labelled "environmental". For the purposes of Article 3(1)(c) of the AIE Regulations, a measure or activity is "likely to affect" the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. The test is therefore whether the measure is capable of affecting environmental elements or factors. Put slightly differently in the Redmond judgment, a measure or activity is "likely to affect" the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Something more than a remote or theoretical possibility is required. 

Applied to the facts of this case, the court found that broadcasting by the State broadcaster on the issue of climate change was clearly capable of having such an effect, particularly given RTE's wide circulation of environmental information and its ability to raise awareness more broadly. 

Conclusion

This judgment is another illustration of the AIE Regulations being used to expand the scope of what might otherwise have been available to environmental NGOs or activist groups/individuals. It is one of the latest in a line of recent judgments which engage with the AIE Regulations. On 25 January 2021, RTK successfully challenged the Commissioner's decision in relation to his interpretation of the term "public authority". In that case, Owens J in the High Court found that a private company, Raheenleagh Power DAC, which jointly controlled a wind farm with the ESB, should be regarded as a "public authority" for the purposes of the AIE Directive. As a consequence, it was required to disclose certain information relating to wind turbine noise under the AIE Regulations. That judgement is now under appeal to the Court of Appeal.

These two judgments, although different, are indicative of an increasing willingness on the part of environmental NGOs or activists to rely on the AIE Regulations to help advance other environmental objectives, and to appeal decisions of the Commissioner. Both judgments emphasise the need for a broad interpretation of the AIE Regulations, in a manner consistent with CJEU case-law and the objectives of the legislation. 

For more information please contact Alison Fanagan, consultant or Mark Thuillier, associate or any member of the Environmental & Planning team.

¹  (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements

² (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment

Date published: 5 May 2021