Deep green troubles for Northern Ireland

The slow progress on protecting the environment in Northern Ireland shows little sign of improvement with the Executive’s refusal to introduce an independent environment agency, despite support from a range of parties and organisations. Catherine Early reports

The UK may have shaken off its reputation as the ‘Dirty Man of Europe’, but Northern Ireland has remained its dirtiest corner.

During the long years of the Troubles, the province was preoccupied with other matters. But since armed conflict ended and devolved government began, attention has quickly shifted to other areas of politics. The environment has moved up the list of Northern Ireland’s public and media concerns.

Today’s power-sharing government has inherited a host of problems. A lack of investment in infrastructure such as sewage works, a tradition of single homes in the countryside, reluctance to prosecute against pollution and illegal dumping and a powerful farming lobby opposing stronger environmental controls have slowed progress.

Any progress has largely stemmed from legal actions, or threats of actions, by the European Commission. When the devolved system was formed in 1998, there was a far higher number of infraction proceedings against the province than for the rest of the UK. They were especially serious as they involved Northern Ireland’s failure to introduce key elements of a modern legislative framework - for example, integrated pollution and control and waste licensing.

This led to a massive intensification of policy work in order to avoid fines, along with improvements such as investment in sewage works. The Commission is now investigating 22 cases. Eight of these have resulted in a second written warning; most of these also involve other parts of the UK.

But former Environment Minister Arlene Foster’s rejection of wide-ranging calls for an independent environment agency in May, quickly followed by the appointment of climate change sceptic Sammy Wilson (see pp 4-6) as Northern Ireland’s Environment Minister has left green campaigners fearful for the future.

An independent agency would remove the perceived conflicts that arise from having an environmental regulatory body within a government that develops environmental policy and is lobbied by polluting industry. Calls for such an agency date back to 1990 when the House of Commons Environment Committee advocated the establishment of an independent regulator in view of the province’s poor record in transposing and applying EU environmental laws.

The UK government rebuffed the idea and instead established the Environmental Heritage Service (EHS) as an executive agency within Northern Ireland’s Department of the Environment. There its regulatory activities posed little threat to the state owned Water Service, one of the province’s main polluters.

This cosy set-up was criticised in 2001 by the Northern Ireland Assembly’s Public Accounts Committee. Its report slammed the EHS over its record on controlling water pollution and said that having an environmental watchdog within government was "totally unsatisfactory" (ENDS Report 314, pp 39-40).

The urgency has grown in recent years amid furious lobbying by environmental groups. Friends of the Earth (FoE), the National Trust, the Royal Society for the Protection of Birds and WWF among others joined forces as the Coalition for Environmental Protection and have campaigned relentlessly on the issue.

In 2004, this coalition commissioned Richard Macrory, professor of environmental law at London’s University College and legal columnist for the ENDS Report, to outline options for reform of the EHS. The time seemed ripe for change, given that a major review of public administration was under way in the province, along with a review of the Water Service.

At the time, the Commission was pursuing 16 cases against the UK that involved Northern Ireland. Professor Macrory warned that the province was at risk of heavy fines from the Commission for failure to comply with European environmental law.

"This… underlines the need to have in place the most effective institutional machinery for ensuring that EC environmental obligations are put into practice," he wrote.

The most practical option suggested in his report was to turn the EHS into a non-departmental public body, the status held by the two environment agencies on the mainland - the Environment Agency covering England and Wales and the Scottish Environment Protection Agency. The Northern Ireland body’s responsibilities over pollution control, nature and heritage conservation could provide "a sound basis for a truly integrated approach", he wrote.

The following year, the UK government commissioned a review of environmental governance in Northern Ireland by an independent panel of experts chaired by Tom Burke, political commentator for the ENDS Report and visiting professor at Imperial College, London (ENDS Report 389, p 44).

When this reported its findings last year, it warned of further significant infraction proceedings by the European Commission. The panel noted that the province’s Assembly would now be responsible for paying fines, rather than the UK Treasury and warned that it would be "very disadvantageous" to Northern Ireland if recent gains in its compliance record were allowed to slip.

The panel also recommended the creation of an independent environmental protection agency, which it said should be responsible for pollution prevention and control, waste management, protection of species and habitats and water management.

The idea was supported by all the main political parties apart from the largest, the Democratic Unionist Party (DUP), which holds the environment portfolio in the Northern Ireland Assembly. In October last year, the Assembly passed a motion urging the executive to follow the example of the rest of the UK and set up an independent environment agency (ENDS Report 393, p 56). Environment Minister Ms Foster declared she had an open mind on the issue.

In February the NGOs presented a collection of more than 50 reports to the Northern Ireland Assembly’s Environment Committee, all arguing for an independent agency. The call was supported by organisations including the Confederation of British Industry, the UK Environmental Law Association, the Chartered Institute of Environmental Health and the UK’s Sustainable Development Commission.

But in May Ms Foster announced there would be no independent environment agency and rejected most of the Burke review’s recommendations. Instead, the EHS will be reorganised as a Department of the Environment (DoE) executive agency and named the Northern Ireland Environment Agency. She was unapologetic about the move. "I - and my party - take the role of environmental governance too seriously to externalise the organisation into an outside agency," she declared.

"The return of devolution resulted in the appointment of local ministers to make decisions. I am opposed to the setting up of yet more quangos where unelected people take decisions on behalf of the people of Northern Ireland," Ms Foster told the Assembly.

In an attempt to make the executive’s handling of green issues more open, members of the public will be able to attend meetings of the new agency’s board and two independent members will be recruited. Ms Foster has commissioned the province’s first White Paper on the environment and Northern Ireland’s inaugural state of the environment report, released in April, will be repeated yearly.

Just before moving on to take on the Enterprise, Trade and Investment ministerial portfolio, Ms Foster said leaders of the agricultural, construction, water and business sectors would form a "Better Regulation Board". Speaking directly to opinion formers at this level will "inject environmental concerns into the lifeblood of industry", she said.

But her decision was slammed as "rebadging, not a change" by Mr Burke, who said: "It’s a cynical move, it shows contempt for the people of Northern Ireland and is not credible as a response to what we proposed."

Hearings undertaken for his review found widespread mistrust of the present system from all quarters, including business, professional bodies and local communities.

"What you’ve got now is a situation where the civil servants are going to be torn. The public has come round to thinking that officials are much more preoccupied with protecting ministers than they are with protecting the environment," he said.

Ms Foster’s argument that an independent agency would be an unaccountable quango was "just nonsense" as all non-departmental bodies have reserve powers for ministers to issue directions to the agency, he said.

Rural questions
Many campaigners claim that Ms Foster’s political ambitions influenced her decision. The only significant organisation that opposed the creation of an independent body, apart from the DUP, was the Ulster Farmer’s Union (UFU). Ms Foster’s assembly constituency, Fermanagh and South Tyrone, is predominantly rural and her majority is small.

The UFU argued that setting up a new body would be an unnecessary expense and claimed that farmers in other parts of the UK with such an agency have endured higher costs. A spokesman dismissed concerns that without an independent body, the province would be at risk of heavy fines from the Commission for infractions of environmental Directives. Farmers in Northern Ireland are far ahead of their counterparts in the rest of the UK in implementing the nitrates Directive, he claimed.

"Our proposals were based around building on government structures that are already there. It’s absolutely nothing to do with vested interests," he said.

But Ms Foster’s links to the UFU are close; her special adviser, Andrew Crawford, previously worked for the union.

Mr Burke said: "The reason this decision came out when it did is that she was being moved on as minister. She made an unpopular decision and now she’s gone, so she can’t be accountable for it. It’s a carefully thought through piece of political cowardice."

The fact that the DUP did not give evidence to his review of environmental governance, and that Ms Foster did not write an official response to its findings has also not gone down well.

But the fight for an independent agency is not over. A petition containing signatures of 30 members of the legislative assembly (MLAs) has been sent to the Northern Ireland Executive. Under the Good Friday Agreement, this can force a discussion on any ministerial decision. It is the first time that the rule has been used, which shows the force of feeling in the assembly.

Sharon Turner, Professor of Environmental Law at Queen’s University in Belfast, who was a member of the Burke panel, said Ms Foster’s decision had angered other politicians who feel they have been excluded. "Basically she’s trying to avoid consulting other ministers because all the other parties agree to the creation of an independent agency," she said.

Environmental groups blame the lack of an independent agency for the province’s failure to deal with two of its worst environmental problems - waste and sewage. Northern Ireland has suffered from a chronic lack of investment in sewage infrastructure. The worst example is Bangor, a coastal town of 60,000 residents with no waste water treatment whatsoever.

Waste and sewage
This led to the EHS objecting to planning applications for new housing that would only add to the load on inadequate sewage treatment works and as a result the planning system began to clog up. In 2002, the then Environment Minister Dermott Nesbitt published a list of sewage hotspots and pledged to build new treatment works.

He acknowledged this would take several years but instructed the EHS not to object to planning applications at present, despite admitting that this would cause more environmental damage for several years. This decision was judged unlawful by the High Court in Belfast in March (ENDS Report 398, p 61) and the UK has been threatened with legal action by the Commission over the issue.

The sewage works programme promised by ministers has now gone ahead and is due for completion in 2009. There has also been progress towards taking action against polluters. Within hours of losing its crown immunity in March this year, the old Water Service - now revamped as government-owned company Northern Ireland Water Limited (NIWL) - was prosecuted for polluting the river Lagan with sewage (ENDS Report 398, p 61). It was only fined £100, with costs of £211, but the case was seen as a landmark in more open environmental regulation.

However, questions have been raised over a Statement of Regulatory Principles of Intent, which sets out how the EHS’s enforcement and prosecution policy applies to NIWL since it was taken out of the Department of Rural Development.

The statement says that the EHS can take the historic underinvestment in water and sewage works into account when deciding whether to prosecute. The most proportionate and effective means of enforcement is for the EHS to set binding timescales for improvements, it says. FoE contends that this in effect removes the EHS’s ability to enforce EU law, which is a breach of the Treaty of Rome.

However, Roy Ramsay, director of environmental protection at EHS, denied this and said that the statement merely recognises that NIWL inherited very poor infrastructure. "NIWL is now treated like any other industry," he told the ENDS Report. "It has been prosecuted twice since it lost immunity and there are a number of other cases pending."

On waste, the province has had major problems with illegal dumping, particularly since 2002, when the tightening of landfill regulations in the Republic of Ireland led to a spate of cross-border dumping. The Commission warned the government that had not done enough to tackle the issue and was in breach of the EU waste framework directive (ENDS Report 377, p44).

Last year, the EHS’s record on enforcement of illegal waste activity was savaged in a report by Criminal Justice Inspection Northern Ireland (CJINI) (ENDS Report 393, pp 44-45). It said the majority of waste sites operate without planning permission and in contravention of waste licensing regulations, yet little enforcement action by the EHS or the Planning Service has taken place.

The DoE aspires to reducing illegally disposed waste in Northern Ireland to 1% of 2004-05 levels by 2015. "The department’s approach to achieving the target was not clear to inspectors," said CJINI.

Cross-border enforcement
It also recommended stepping up joint cross-border enforcement action to combat illegal dumping of waste from the Republic of Ireland to the province, estimated at a minimum of 250,000 tonnes between 2002 and the end of 2004.

Last year, the EHS gained powers to stop, search and seize vehicles believed to be involved in waste dumping, which it claimed would help it use its limited resources more effectively.

Dr Ramsay said that the EHS is in discussions with Dublin City Council over the repatriation of waste from the Republic and was confident the issue was now under control. Jim Moriarty, senior inspector at the Republic’s own Environment Protection Agency, agreed that large-scale illegal dumping has definitely tapered off.

However, the CJINI investigation brought up another more worrying issue. Front line staff in the EHS complained that MLAs had interfered with investigations on behalf of constituents who were under investigation. This was not mentioned in the report, but deputy chief inspector Brendan McGuigan spoke about it on Northern Ireland TV political programme Hearts and Minds and called it "totally inappropriate".

CJINI inspector James Corrigan told ENDSthat the inspectorate found it acceptable for politicians to make representations at the early stage of a case, but that once a decision was made to prosecute it must be very clear that this should not happen.

He stressed that the CJINI inspection had found no evidence of the latter happening, but warned that the EHS rules were not clear to politicians or even their own officials. The problem with the EHS, he said, was that it has a culture of "prosecution as a last resort" and instead prefers to try and persuade offenders to comply with the law. This does not work in waste control, where the crime is profit-motivated, he said.

Ms Foster told the assembly this year that the EHS had investigated 5,779 incidents of illegal waste activity since it was created in 2003. It has secured 299 convictions resulting in over £670,000 in court fines, 13 prison sentences and four confiscation orders.

But these fines are "peanuts", said Professor Turner. "Their expectations of performance are so low it’s farcical. We’re dealing with a regulator that is timid, centralised and institutionalised and we simply do not have an organ of government that can do what needs to be done."

This view seems to be backed up by the department’s own figures. Between April 2007 and March 2008 there were 1,184 cases of illegal dumping reported to the EHS. Of these, only 93 cases were referred to the Public Prosecution Service, resulting in 63 convictions. The situation has only slightly improved since the previous year, when the EHS recorded 1,411 incidents of illegal dumping.

The EHS says that limited resources mean it must concentrate on the most serious cases, prioritising incidents causing the greatest environmental harm or threat to human health

A key recommendation of the CIJNI report was that the worst offenders need to be more strongly targeted. Ms Foster has promised more flexible penalties for less damaging or technical offences. This will free up resources to focus on more serious environmental crime, she said. There will be a consultation on a revised enforcement policy later this year.

She also promised to set up an agency-wide environmental crime unit that will cover water pollution and nature conservation as well as waste. Investment in better regulation and the environmental crime team will be boosted from £0.77 million in 2008-09 to £1.98 million in 2010-11.

The Serious Crime Act 2007 introduced new powers to deal with serious environmental crimes, which were classified alongside money laundering and armed robbery. The emphasis of punishment would be on confiscating money and property, which was far more effective than court fines, Ms Foster said.

The EHS is already working with the Assets Recovery Agency, and during the last financial year they have obtained orders to confiscate assets worth more than £833,000 following prosecution in four cases involving illegal dumping.

The EHS is training investigators in financial investigation techniques to improve its enforcement record. The most serious waste crime investigations will be combined with confiscation and money laundering probes.

Planning problems
The lack of an independent agency has also landed the province in trouble on planning law. Last year, a High Court judge ruled that the draft Northern and Magherafelt area plans - strategic land use documents that have an important environmental protection role - are unlawful because of flaws in the interpretation of the EU Strategic Environmental Assessment Directive (ENDS Report 392, p 58).

Mr Justice Weatherup said it was wrong that the DoE was both the plan-making authority and also the consultative body that assessed the environmental effects of these plans. Having the Planning Service and EHS in separate divisions of the same department is not enough to achieve independence, he ruled.

Bill Morrison, a director of Belfast-based consultancy Strategic Planning, said: "This begs a question about what they’ll do next time round." One of the biggest plans in Northern Ireland, the Belfast Metropolitan Area Plan, is due to be adopted in 2011, so that could end up before the courts for the same reason, he said.

One of the new Environment Minister Sammy Wilson’s first jobs will be to reissue the planning policy document that covers rural development, PPS14. This was introduced in 2006 to stem the flow of planning applications for single homes in the countryside, which make up 17% of the province’s homes compared to a UK average of 4%. However, Omagh District Council won a judicial review against the policy when a judge ruled that it should not have been issued from the Department for Regional Development.

Ms Foster said that she would comply with the judgement by reissuing it from the DoE, but there would also be a review of PPS14. The results of this have been delayed three times this year, with politicians reportedly agonising over the balance between allowing rural residents to be able to build homes where they want and protecting the environment from ever-more dispersed, car-travel generating new development.

The pressure to establish an independent agency shows no sign of letting up. With politicians distrustful, NGOs fuming and cases at the Commission mounting, the legacy of Ms Foster’s decision could cause significant trouble.

Now the appointment of Mr Wilson has surprised and horrified environmental groups. At first, some campaigners even spoke of giving up on engaging with the new Environment Minister. But that, they realise, is not an option. The struggle to protect the environment in one of the most beautiful yet threatened parts of the UK has to go on.