Rundale

Orla Kelleher and Patrick Bresnihan

The passage into law of the Planning and Development Act 2024 was a bad day for democracy and the environment. The 2024 Act was enacted in October after several earlier unsuccessful attempts to revise Ireland’s planning code. It responds to a commitment in the last Programme for Government to review and reform judicial review processes in environmental and planning cases. According to environmental NGOs and legal academics, the reform was designed to ‘radically overhaul the planning system and related court processes … to increase efficiency and the speed of the development consent process by centralising power and restricting access to justice in order to remove perceived impediments to housing development’.

Amongst other things, the 2024 Act introduces new restrictions on who can bring judicial review challenges; removes the right of appeal from the High Court to the Court of Appeal; and introduces new costs rules and a system of legal aid for environmental matters. There are also new rules that encourage the High Court to consider alternatives to quashing an entire decision. Concerns have been raised that these radical changes to Ireland’s planning code, which restrict access to justice, may violate constitutional rights, EU law and international law. At the time of writing, the provisions on judicial review have not yet been commenced.

The 2024 Planning and Development Act is only the latest in a long history of efforts by the Irish state to resolve the contradictions of Ireland’s developmental strategy dating back to the 1960s – when Ireland opened up to foreign direct investment (FDI). In this short piece, we reflect on this history, the limits and tactical benefits of resisting through the environmental planning and legal system, and the need to reclaim and reimagine strategies that go beyond the courtroom.

Managing the contradictions

By 1960, the Irish state had pivoted towards a model of development that relied on foreign industries locating here, rather than promoting indigenous industrialisation; tax incentives, the availability of zoned land, cheap labour and lax environmental regulations were advertised around the world by the recently established Industrial Development Authority (IDA). 

One of the industries the state targeted in the 1970s was the pharmaceutical industry – in part because pharmaceuticals could be promoted as relatively environmentally friendly compared with the heavy chemicals industry. What transpired, however, is that most companies that decided to locate in Ireland chose to transplant the most hazardous aspect of their production process here. As one Director of a pharmaceutical company explained: “we wanted a place with a similar infrastructure to the home country without so many government restrictions.” 

Up until this point, local authorities approved new developments in their areas and were responsible for monitoring and regulating their activities, leading to questionable decisions, limited capacity and an absence of oversight. In response, An Bord Pleanála (ABP) was established in 1976 as an independent, quasi-judicial state body to determine appeals from planning decisions made by local authorities. But ABP couldn’t contain the contradictions that were arising from Ireland’s development model either, as social resistance to toxic industries multiplied across the country.

Robert Allen’s No Global: The People of Ireland vs. the Multinationals offers one of the few comprehensive accounts of the community-based campaigns against the harmful pollution associated with pharmaceutical industries in Ireland. An early success of the anti-toxics campaign groups was the decision by Raybestos Manhattan to pull out from its Cork-based operations in 1980. 

The decision of Raybestos to pull out of Ireland, coupled with growing public and corporate interest in environmental protection, provoked the Irish state to respond again. In 1993, the Environmental Protection Agency (EPA) was set up. As with ABP, this new state body was designed as an independent, state body, capable of defining “allowable” amounts of pollution. Rather than question Ireland’s FDI-led path to modernisation, objections to specific developments were filtered through arm-length state bodies focusing on technical expertise to adjudicate and resolve conflicts.

Politics of delay, politics of exhaustion

One of the enduring consequences of this approach to environmental management, has been to displace political disagreement into the planning and legal system. Those wishing to object to a development must navigate an arcane planning system backed by the technical know-how of state-supported, industry-financed science. Further, there is frequently a perception amongst those who do become involved in public participation processes that consultations are just checkbox exercises and their voices are not taken seriously or influencing the final policy or decision. 

This dynamic has also given rise to the dismissal of objections to development as base NIMBYism (‘Not In My BackYard’) – a common discourse designed to flatten and undermine any form of opposition. The state is tasked with mediating between ‘pesky’ delays from public participation processes and legal challenges and their FDI-dependent strategy of development. Containing dissent becomes the motivation for pre-planning processes and the social engineering of acceptance for FDI, as well as the introduction of legislation to ‘streamline’ planning processes by reducing the ability to object – such as the 2024 Planning Act. 

Environmental judicial review has emerged as one of the main arenas to politically contest environmentally destructive policies in Ireland in the absence of alternative avenues for resistance. However, it is not a silver bullet that can magically fix a lack of political will to confront the triple climate, biodiversity and pollution crises. Litigation should be seen as just one of many possible tools for resisting environmentally destructive development. It has its advantages. The nature of court procedures (e.g., having to give sworn evidence or articulate legal arguments) means governments and corporate actors are sometimes forced to nail their colours to the mast and cannot obfuscate in a way they might be able to do in political settings. But it also has its limits. 

For example, judicial review is usually a review of whether a decision or act of a public body was lawfully made rather than a substantive review of the merits of the project itself, i.e. it looks at whether there was a procedural flaw in the decision-making process. Under the revised Planning Act, the new rules on remedies could make it faster to fix procedural defects with an act or decision of a public body potentially making judicial review a less potent tool for resisting environmentally harmful developments. The outcomes from environmental judicial review can only ever be as good as the environmental laws or legal yardsticks litigants are seeking to enforce. Environmental judicial review may not always be able to deliver the desired remedy and in some instances may not be suitable for advancing the wider strategic goals of the environmental movement.  

If speed is what global capital privileges then throwing spanners in the works of the planning process (e.g. through legal challenges) can clearly be effective in preventing unwanted, one off infrastructural projects – such as data centres or chemical facilities. With little means of effectively participating in decisions over the form and distribution of development, legal obstruction comes to resemble a time-worn, anti-colonial tactic – not direct confrontation but a form of sabotage focussed on bureaucratic infrastructure, rather than physical infrastructure. This is how Clare Island fishermen can claim potential disturbances to fish habitats to obstruct the laying of a transatlantic fibre optic cable; or a hyperscale data centre in Clare can be blocked due to the presence of a specially designated bat population. 

But just as those with little power can use the system to secure small wins, those with power can play the long game, counting on the exhaustion of those objecting. Even those with enormous staying power and commitment can be overwhelmed by technical argument, costly judicial reviews, and the everyday stress and anxiety of living with legal uncertainty for months (and sometimes years) on end. In reality, this is where the battle is waged – over how long the contenders are willing to stay in the fight. And what is left in the wake of these campaigns – whether a project goes ahead or not – is the toll on those who have campaigned and on the wider community, often riven by disagreement and mistrust.

Building movements, democratising development

Where legal cases are most effective is when they are part of a broader campaign strategy combining different tactics, including direct action, demonstrations, popular education and coalition building. Together, this strategy must be capable of mobilising a base of support and developing national and international networks of effective solidarity. 

The Shell-to-Sea campaign in Mayo, for example, took a legal case against the state, but this was backed up by direct action, mass resistance to police violence, solidarity networks across the country, as well as connections with international struggles against fossil fuel extraction (e.g. the Niger Delta). While the pipeline was built, and those living in proximity suffered enormously from the campaign, the knowledge and networks forged in those years led directly to the Love Leitrim Campaign in 2011. Along with anti-fracking groups North and South of the border, they built a successful campaign against proposed fracking sites along the West coast and border counties. Significantly, Love Leitrim did not fight their cause through the legal system, instead taking their demands directly to politicians and policy-makers. This resulted in a ban on fracking in the Republic in 2017. 

Poster from the Shell to Sea campaign.

What is notable about these movements was their ability to connect strong, place-based, community opposition to specific developments, with transnational coalitions. Going back to Raybestos Manhattan in the late 1970s, 18 different groups were involved in the campaign – including residents associations, the Irish Anti-Nuclear Movement and more politically radical groups like Revolutionary Struggle. As in other parts of the world, fears of chemical pollution were linked with fears around radioactive pollution and nuclear energy. These groups helped foster an “anti-toxic industry movement” across Ireland – and here, the connections between extractive industries like mining, risks associated with pollution and state regulation become apparent. 

Today, we see something similar building with resistance to mining projects that have multiplied across Ireland (North and South) as the two jurisdictions position themselves as a unified hub for ‘critical minerals’. The Save Our Sperrins (SOS) campaign has been working for over a decade to stop a massive gold mining project in Co. Tyrone. A public inquiry into the project was suspended in January shortly after starting due to breaches in laws protecting public participation – specifically, the right to transboundary participation. Significantly, it was members of CAIM (Communities Against the Injustice of Mining, a grassroots network of communities resisting mining set up in 2021) from Leitrim and Donegal who were pivotal in highlighting the breaches during the public inquiry, leading to its suspension. 

Activists from the Save our Sperrins campaign resisting gold mining.

In other words, while the planning process and legal issues around it are important, this is only one part of a more extensive, sustained campaign that is nourished by all-island and transnational networks and relationships. This is because the end goal isn’t just putting a stop to one mine (or one pharmaceutical facility or one data centre), but a model of development that no longer relies on the outsourcing of polluting and extractive activities to the peripheries of Ireland and beyond.