The High Court has refused Peter Sweetman’s request for an early ruling on whether the Environmental Protection Agency must carry out a remedial assessment during its review of a wastewater discharge licence. The court dismissed his motion, with no order as to costs, and adjourned the proceedings until 5 February 2024.
Mr Justice Garrett Simons said the application sought what was, in effect, an advisory opinion before the EPA had decided the licence review. The requested declarations concerned whether the review required remedial assessment under the Environmental Impact Assessment Directive and Habitats Directive, and whether the EPA had power to carry it out.
The proceedings stem from an earlier High Court judgment in 2019. The court then found that a licence modification made by the EPA as a technical amendment was invalid. It did not quash that amendment, instead allowing the EPA to conduct a statutory review with public participation and leaving the parties liberty to seek further relief after the review was complete.
That review had reached the stage where an environmental impact assessment report and public submissions had been received. Mr Sweetman argued in his submission to the EPA that remedial assessment was needed because, he said, discharges had been unauthorised for a period. He also raised concern that the governing regulations might not expressly provide for remedial assessment. The judgment records that the EPA was expected to prepare an inspector’s report and anticipated deciding the review in January 2024.
Judge Simons said the general rule was that a statutory decision-making process should be allowed to finish before judicial review is pursued, unless exceptional circumstances justify earlier intervention. He was not satisfied that such circumstances had been shown. In particular, he said the motion did not squarely argue that the legislation was deficient and made a lawful EPA decision impossible. Nor did the earlier judgment mean the court was supervising the review as it proceeded.
The court said the EPA would have to address remedial assessment in its eventual decision. If Mr Sweetman was dissatisfied with that outcome, he could then seek judicial review. The judge also noted that the EPA might refuse the licence review or carry out an assessment he considered compliant with EU law.
The motion did not raise delay, and the judge said that issue was separate. He indicated Mr Sweetman could raise delay if no EPA decision had been reached by the February mention date. The court made no ruling on whether remedial assessment was legally required or whether the EPA had power to conduct one.