All Hands on Deck Needed to Respond to the Latest Attack on Access to Justice The Government is seeking to dramatically erode the public right of access to justice via the courts by imposing prohibitively expensive costs on eNGOs and members of civil society who seek to challenge unlawful planning, licencing, or policy decisions. In all our time in An Taisce, this is one of the biggest threats to environmental protection that we have ever faced. The Government ran the public consultation on these major changes to the cost rules for judicial reviews over the Christmas/New Year break when many people are too busy to engage with it. The consultation closes on Thursday 15th January at 5:30 pm, and we are asking that you make your voice heard and make a submission. Submissions can be sent by email to [email protected] Information on the consultation is available via the Government website here. It is challenging to find this as it is located under the Department of Climate, Energy and the Environment. We’ve included background information (at the end of this post below) as well as suggested points for your submission and information on where to send it. You may have seen that An Taisce has written to Minister Darragh O’Brien asking him to scrap the consultation on account of how unfair and deficient it is. However, there is no guarantee that the Department will actually do this, so please do still make a submission. We will keep you posted on any developments. What is this about? The Government is seeking a way to reduce the number of judicial reviews that are taken in Ireland. Judicial review is a crucial means of holding public authorities to account via the courts, ensuring that they act lawfully, using lawful process within their authority. The restrictions Government are proposing now come on foot of a major orchestration of a negative narrative against the use of judicial review by members of the public and eNGOs over the last months - blaming those who take them for holding up housing and strategic infrastructure. Actual data show this isn't the case. See these articles by Attracta Uí Bhroin: Judicial review plans are an attack on justice and Judicial reviews serve the common good. While you may never intend to take a judicial review yourself, it is very important that someone can and that public authorities know they can be held to account before our courts. Otherwise, public accountability will be severely compromised, and it risks lowering the quality of decision-making. Who currently pays for judicial reviews and what would this proposal do? Currently if an NGO, civil society group, or individual wins their case, the public authority generally pays their legal costs, but if they lose, they only have to pay their own costs. This gives certainty to those taking judicial reviews that they won’t be bankrupted if they take a case. It also allows lawyers to take on cases which they view as worthy on a conditional basis (for example no-win, no-fee). The Supreme Court has ruled that this system complies with Ireland’s legal obligations. Ireland has some of the highest litigation costs in Europe - 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. The current cost system provides for broad access to justice, allowing groups like environmental NGOs, community groups and individuals to challenge flawed decisions in the public interest without the risk of bankrupting themselves. The new proposal is to introduce rules limiting the costs that the public could recover if they win to just a fraction of the actual total costs of the legal fee, potentially leaving them with bills of more than €100,000 even if they won their case. That’s not fair, and it’s certainly not affordable. This change would also prevent lawyers taking on cases on a conditional basis (no win, no fee), as the costs the applicant can recover would only cover a fraction of the hours billed by the lawyer. Yet the other side (State bodies and developers, for instance) would not be similarly restrained in how much they can pay their lawyers. The high costs of litigation in Ireland do need to be reformed, but this is not the way to do that. Furthermore, these changes will actually delay rather than expedite the delivery of the critical infrastructure that we very much need. This costs proposal will cause huge legal uncertainty and additional litigation. The delay this will cause is the opposite of what the Government is purportedly trying to do. Why should you care? These proposed cost rules are intended to kill public interest environmental litigation. NGOs, community groups, and individuals will by and large not be able to afford to pay their lawyers, given that the amount of costs that can be recovered may fall well short of the costs lawyers need to be paid in a competitive market and in a complex area of law. This means that legally flawed policy and planning decisions will be much harder to challenge, and problematic decisions will be more likely to stand. Environmental litigation is one of the driving forces of better environmental outcomes, and judicial review acts as a critical safety valve on Governmental decision making. Many of the most important environmental cases to date, including as An Taisce’s case on the Edenderry peat-fired power plant and our current nitrates water quality case, would never have gotten off the ground with these cost rules. These new rules will harm the environment because the important role civil society plays in protecting the environment and their communities will be neutralised by insurmountable financial barriers and unfair procedures. If these cost rules are brought in, the key accountability mechanism of judicial oversight is blocked, and this will inevitably lead to poorer environmental decision making, negatively impacting all of our communities and ecosystems. The Legal Bit Ireland and the EU are parties to the Aarhus Convention, a key pillar of which is access to justice. Article 9(4) of the Convention provides for the right to “adequate and effective remedies, including injunctive relief as appropriate” and that these procedures must be “fair, equitable, timely and not prohibitively expensive”. In 2011, Ireland introduced special cost rules (as laid out in s.50B of the Planning and Development Act 2000, as amended) specifically to bring Ireland into compliance with its legal obligations under the Aarhus Convention and EU law to ensure that individuals and groups seeking to judicially review certain decisions with environmental implications were not exposed to prohibitively expensive costs. Not prohibitively expensive requires that in each individual case the public should not be prevented from seeking or pursuing a claim for judicial review by reason of the financial burden that might arise as a result. However, these new cost rules would mean that even if you win your case, you could end up with cost exposure of hundreds of thousands of Euro. This is clearly not compliant with the not prohibitively expensive requirement. It will create a chilling uncertainty around costs for those seeking to take a case. This is compounded by the other recent restrictions on judicial reviews, including in the new Planning and Development Act 2024. Therefore, in our view, given the proposed scale of costs which applicants would still have to pay even if they win, these proposed cost rules are unlawful under EU law and the Aarhus Convention. Responding to the current consultation Information on the consultation is available here. The more responses to this consultation opposing these changes the better- this is such a critical issue for environmental democracy, which impacts on every single one of us. We know this is a complicated issue, so we’ve provided what we think are the key issues below. Personalised submissions tend to carry more weight in these types of consultations, so insofar as possible please do use your own words if you can, but feel free to use our points as guidance. Please also highlight issues of personal concern to you, including about environmental cases that may have impacted your local area or covered an issue you care about. The key thing to get across to the Government is that you care about the public being able to take public interest environmental legal cases, and to highlight that the costs which they are proposing could effectively stop that almost entirely. Suggested points you could raise in your submission: Unacceptable manner in which the Government ran the consultation In the first instance, the running of this complex consultation has been very problematic and unfair. It was opened on 3rd December 2025 with a closing date of 15th January 2026, meaning it was buried in the very busy Christmas period. Multiple request were made to the Department to extend the consultation deadline, but no extension has been granted to date. 140 pages of very complex and confusing new material were added to the consultation documentation on 9th and on 23rd December, yet the consultation period was not extended on foot of either of these additions. Moreover, major deficiencies and gaps still remain in the consultation information – significant amounts of information that would be needed for any consultee to be able to respond fully and effectively on the appropriateness of the proposal and scale of fees is missing. There is also a complete lack of transparency around what information and analysis have informed these proposals as well as what bodies have been involved. There is no way such a complex consultation with such serious implications for public rights can be considered to adequately facilitate effective public participation when conducted over the traditional holiday period and with seriously deficient materials. Effective public participation is a requirement under the Aarhus Convention on the rights to public participation in environmental matters, to which both Ireland and the EU are parties. It is unacceptable that the Department responsible for the implementation of the Aarhus Convention is running a consultation in this manner. Access to justice cannot be prohibitively expensive The Aarhus Convention requires that legal proceedings in environmental cases must not be prohibitively expensive. As such, both under EU law and the Aarhus Convention, the Irish State is legally required to remove financial barriers for environmental cases taken by members of the public. Under the current rules, individuals or groups taking a judicial review can be awarded some or all of their legal costs if they win their case. This can allow the public to work with lawyers on a no foal no fee basis where their lawyers are only paid if they win the case. This system is one of the primary means through which NGOs are able to access justice at present, and it generally allows applicants to access strong legal representation. It also acts as a safeguard to ensure that cases taken are legally robust - lawyers are very unlikely to take a case they do not believe they can win. However, this new cost system proposes limits on the costs that an individual or group taking an environmental case could recover if they win their case. So if you were to go to court and win your case, it could still cost you hundreds of thousands of euros to correct an unlawful decision made by a public body, therefore penalising you for upholding EU law and helping the public body properly execute its functions. These cost limits, if passed, would create chilling uncertainty around legal costs and make many cases prohibitively expensive for most individuals, civil society groups, and NGOs. Yet public authorities such as An Coimisiún Pleanála, Government departments, etc. as well as developers and other wealthy interests would have no such restrictions on what they can pay their lawyers. This creates a stark inequality, which is unfair and unlawful under the Aarhus Convention and raises serious issues in respect of our other EU law obligations. Impact of the proposal and the importance of public interest litigation If this change comes in, it would effectively prevent civil society organisations and groups from taking public interest litigation. There are few, if any, civil society organisations in Ireland who can afford to pay what is being proposed. It is also hard to see how members of the legal profession who are capable of taking on the State and well-funded parties like developers in such a complex area of law would be prepared to operate in a space where the rates are so uncompetitive. Without access to adequate representation, access to justice is denied. Furthermore, for the few cases that may still be possible, it means that the Government will effectively be able to control the quality of the case you are able to take because the proposed scale of fees will very seriously limit the pool of lawyers you are able to draw from and how much of their time they can afford to devote to the case. The same restrictions of course would not apply to public authorities or developers. Some of Ireland’s most important environmental outcomes have come about as a result of environmental litigation. If these cost rules were already in place, most of the key environmental cases to date, including An Taisce’s case on the Edenderry peat-fired power plant and our current nitrates water quality case, would simply never have gotten off the ground. Ireland’s environment is already in a dire state. Our government is consistently failing to address this and failing to properly implement and enforce crucial EU laws. Therefore, action by civil society groups and members of the public plays a crucial role in environmental protection and has never been more important. This scale of fees proposal will seriously hamper that and will lead to far worse environmental decision making. Conclusion and recommendations These proposed changes are very clearly unlawful, undemocratic, and unfair. If adopted, they will therefore undoubtedly lead to additional litigation with the possibility of referrals to the European Court. These changes are purportedly being introduced to expedite and facilitate the provision of very much needed critical infrastructure, but in reality they will only cause more uncertainty and delay. Furthermore, the proposed changes will lead to environmental harm and lower standards of environmental protection by completely hamstringing public interest environmental litigation at time when our imperilled environment can least afford it. This unlawful proposal is a significant attack on civil society and public accountability – it should be dropped, 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. Submissions are due by 5.30pm on Thursday, 15 January 2026 and can be sent by email to [email protected] or by post to: Consultation on the regulation of costs payable in matters prescribed on foot of section 294 of the Planning and Development Act 2024 (Scale of Fees), Aarhus Convention Team, Department of Climate, Energy and the Environment, Tom Johnson House, Haddington Road, Dublin 4, D04K7X4 For more information: Webinar by Environmental Law Ireland and An Taisce on the significance of the changes. More media articles: Judicial reviews are not the problem – and deregulation is no answer Dr Lorcan Sirr Opinion: Beware of the judicial review red herring Dr Orla Kelleher Judicial reviews are not the enemy of progress — they are a vital safeguard Fred Logue Manage Cookie Preferences