Banner image: Photo by NIR HIMI on Unsplash  

In a highly Trumpian move, the Government yesterday signed new regulations which will all but bring an end to public interest environmental litigation in Ireland.  

These new rules will impose an as–yet undisclosed cap on the legal costs that applicants who win their judicial reviews relating to the environment can recover. Although the final caps have yet to be published, the briefing published by the State indicates that there will be a reduction in access to justice as a consequence. What this means is that if you were to go to court and win your case, it could still cost you in excess of a hundred thousand euros to correct an unlawful decision made by a public body, therefore penalising you for upholding law providing for the protection of the environment and helping the public body properly execute its functions in accordance with the law. 

Worse still, the new regime allows the State, a respondent in judicial reviews, to tweak the system and scale of fees on a whim, if it doesn’t like being held accountable for its decision. 

In announcing the regulations, the Government said: “The regulations do not limit access to justice or constrain the right of individuals or communities to challenge decisions, which remains a central part of our planning process”. This appears to be nothing but spin since the Government has clearly signalled that it would use costs restrictions to limit its own accountability. In the recent public consultation An Taisce and 100s of other groups and members of the public warned in detail about the consequences of the Government’s move [1]. 

Ireland has some of the highest litigation costs in the EU - legal costs in a typical environmental case can run into the hundreds of thousands of euro, which is unaffordable for all but the wealthiest in our society as well as the State itself. However, the proposal, as drafted and apparently now adopted in the teeth of fierce public opposition, plans to cap costs of winning public interest litigants at circa 30% of the established reasonable costs currently paid [2], something which the Bar Council, the Law Society of Ireland and others have raised serious concerns with, highlighting that there is no justification provided for this restrictive limit.  

The current cost system provides for broad access to justice, allowing groups like environmental NGOs, community groups and individuals to challenge legally-flawed decisions in the public interest without the risk of bankrupting themselves. This came about after years of wrangling to bring Ireland into compliance with its legal obligations under the Aarhus Convention and EU law on legal costs. This new system rips up those existing rules and flies in the face of the Aarhus Convention, which requires that access to justice be “fair, equitable, timely and not prohibitively expensive”. Not only will the new rules expose eNGOs and members of the public to crippling legal fees, they also expose Ireland to years more of litigation on Aarhus grounds. 

The public were resoundingly against the introduction of these caps on legal fees when asked in a recent public consultation. When asked their opinion, over 1,400 people responded, with 98% of those firmly against the introduction of these caps on fees. The Irish people have clearly indicated that while many of them will never take a judicial review, they are fully in support of the ability of others to be able to access the courts in order to ensure accountability of our decision makers, and the upholding of environmental law by our courts. This regressive move by the Government goes directly against the wishes expressed by the public, and makes a mockery of the process of public consultation.  

This scale of fees will have a serious detrimental effect on public accountability and environmental oversight. Public authorities need to know that they can be held to account before a court for the lawfulness of their decisions. But because the scale of fees will make most public interest environmental litigation prohibitively expensive, the accountability from the proverbial “judge over the shoulder” of public bodies will be seriously compromised. The standard of environmental decision making will undoubtedly deteriorate without this essential safeguard, something we cannot afford with Ireland’s environment already in a dire state.  

The scale of fees is also an own-goal for a Government that has repeatedly stressed the need to expedite the delivery of critical infrastructure. These new cost rules are almost certainly unlawful – therefore, they will significantly increase legal uncertainty and undoubtedly lead to additional litigation with the possibility of referrals to the European Court. This will only lead to more delay, precisely the opposite of the Government’s purported objectives to speed up planning and infrastructure delivery. 

The new legal cost rules are a significant attack on the public, civil society and public accountability – the regulation should be scrapped, and the current system of cost rules should be maintained. Focus instead should be on improving the quality of public authorities’ decision making, the quality of planning decisions, and the quality of plan making. These are key to addressing the crises we face in housing, energy, climate, etc. and to delivering the infrastructure we need.  

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Notes and further information:

[1] Public consultation report: 
 https://assets.gov.ie/static/documents/c168d034/Report_Summary_-_Scale_of_Fees_Submissions.pdf  
[2] At the time of writing, the regulations have not actually been published (which is very problematic in and of itself). The Government’s statement indicated that some changes to the cost framework have been made since the initial proposal. Regardless, the cost caps and framework will be under the Minister’s control and can be changed at any time. 
 
An Taisce’s submission to the public consultation in January 2026 
An Taisce’s explainer on the issues (issued before the consultation) 
Government report on the results of the public consultation 
A compilation of some of the public submissions to the consultation