The High Court refused an organic farmer’s request for an advance order limiting the costs of a possible challenge to an Environmental Protection Agency decision permitting field tests of genetically modified potatoes. The farmer had not yet begun proceedings against the Agency.
The EPA granted Teagasc consent on 25 July 2012 to release certain genetically modified potato lines, subject to conditions. Thomas O’Connor said he wished to challenge the decision. The court noted that proceedings would have to start by 18 September to meet the statutory eight-week limit, and that it had no power to suspend or extend that period.
O’Connor sought a declaration, before any challenge was filed and without the other parties being heard, that he was entitled to a “not prohibitively expensive” costs order. He relied on the Aarhus Convention and European Union environmental directives, which provide for environmental review procedures that are not prohibitively expensive.
Justice Hogan said the meaning of that requirement remained uncertain, as did whether it applied to a challenge concerning the release of genetically modified organisms for field tests and whether costs had to be capped in advance. He noted that the Court of Justice of the European Union was expected to provide guidance in a pending reference. He also said that conventional taxed costs in a complex case could deter members of the public from bringing proceedings.
The court nevertheless declined to grant the requested relief. It said the applicant’s entitlement to an advance order and the scope of any such order were uncertain. Making a final order without giving the Agency and any other affected parties an opportunity to be heard would breach fair procedures. The court therefore held that it had no jurisdiction to make the order sought and refused the application. It did not determine the validity of the EPA’s consent or the merits of any judicial review; no such challenge had yet been commenced.