Independent EPA back on N Ireland agenda

Options for modernising Northern Ireland's environmental governance arrangements have been set out in a report sponsored by leading environmental organisations.1 It builds on calls dating back a decade and a half for an independent environmental regulator for the Province - and the climate for change looks better than at any time in that period.

Pressure for a reform of Northern Ireland's environmental protection arrangements began in 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 (ENDS Report 191, pp 25-26).

The Government rejected the idea. Instead, in 1994, the existing central regulatory functions were brought together in the Environmental Heritage Service. The EHS was established as an executive agency within the Department of the Environment, where its regulatory activities would pose no threat to the public Water Service, one of the Province's main polluters.

This cosy set-up was criticised three years ago by the Northern Ireland Assembly's Public Accounts Committee, which savaged the EHS over its performance in controlling water pollution and said that having an environmental watchdog within government was "totally unsatisfactory" (ENDS Report 314, pp 39-40 ).

The EHS's position was further compromised in 2002 when it was instructed by Ministers not to continue objecting to planning applications for new housing where the sewerage system was already unable to meet the standards laid down by the 1991 EU Directive on urban wastewater treatment (ENDS Report 333, pp 35-36 ).

Widespread breaches of that Directive, years after it should have been complied with, are far from isolated cases. Northern Ireland has a shocking record in complying with EU laws - because of the low political priority given to completing legal transposition on schedule, and because of inadequate investments in publicly owned waste management and sewage treatment infrastructure.

The record has improved of late, but there is still much ground to make up. As the new report points out, 16 environmental cases which were being pursued a year ago by the European Commission against the UK involved Northern Ireland - and with fines now available to the European Court of Justice the stakes are much higher than they used to be.

"The exposure of Northern Ireland to large penalty payments is now considerable," the report warns. "This is a factor that now needs to be taken into account in weighing up the financial costs of new [regulatory] arrangements, and underlines the need to have in place the most effective institutional machinery for ensuring that EC environmental obligations are met in practice."

Written by Richard Macrory, professor of environmental law at University College London, the report was commissioned by nine environmental organisations which sense that the time is ripe for reform for another reason. A major review of public administration is under way in the Province, along with a separate review of the future of the Water Service, creating the best opportunity in years for institutional change.

The report, which is out for consultation until June, offers options rather than a prescription for change. It puts forward five options for the EHS, though three of these - maintaining the status quo, pushing the EHS back into the DoE, or transferring most environmental regulation to local authorities - scarcely seem attractive. A fourth, the creation of a non-ministerial government department along the lines of the Food Standards Agency, looks a non-starter.

That leaves turning the EHS into a non-departmental public body - the status enjoyed by the environment agencies in Britain.

Two features suggest that a newly independent EHS could make a distinct contribution to environmental regulation in the UK. One is the unusual breadth of its responsibilities - embracing pollution control, nature conservation and heritage protection - which could provide "a sound basis for a truly integrated approach", the report notes. And secondly, the EHS is not encumbered with operational functions such as flood protection, which dominates the Environment Agency's staff and budget.

Independence would enable the EHS to follow the British agencies in acting as an environmental "champion" and making decision-making more transparent. Disadvantages of this option include the need for primary legislation, higher costs, loss of direct political accountability, and a danger of separating the delivery of policy from its design.

The report also puts forward three options apiece for strengthening existing mechanisms for holding public bodies to account for their environmental performance, and for provision of independent policy advice - including a new joint commission on the environment with the Irish Republic.

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