Centre for Law and the Environment - Doctoral Theses
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Item The use of science in EU environmental decision-making: a measure of legitimacy in environmental regulation(University College Cork, 2024) Jennings, Rhoda; McIntyre, Owen; Poustie, Mark; Environmental Protection Agency; Irish Research CouncilThis thesis investigates the role of science and scientific evidence in EU environmental law. It examines the practical interaction and relationship between science and the formulation and application of environmental law. In so doing, it takes a legal regulatory approach to exploring the science-law interface. The research goes beyond viewing science as a component of evidence-informed policy. It explores whether, and to what extent there is a legal obligation to use scientific evidence in the formulation of EU environmental policy and legislation. This is carried out through an examination of the role attributed to science under the Treaty on the Functioning of the European Union, and by exploring the normative role of science as a source of legitimacy in environmental decision-making. The thesis adopts a practical approach to investigating the role of science in environmental law. It develops a a typology of the primary EU science advisory bodies that assist the Commission in its work, and feed into pre-legislative debate. It carries out case studies on ambient air pollution and nature conservation legislation, tracing the use of science in the formulation and application of the law, from the travaux préparatoires to the adoption of the final legislation, and the interpretation of the law by the Court of Justice of the European Union. The research consolidates the exploration of the normative role of science in EU environmental legislation and policymaking, with the actual role of science, by drawing on the concept of legitimacy to develop an analytical framework. This framework is used to discuss more precisely how science is used in the formulation of legislation, and the consequences for the legitimacy of the legislation. The research indicates that there is a wealth of high-quality science advice in the EU. Shortcomings in the regulatory structure of the science-law interface, however, serve to undermine the functional benefits of science. The thesis proposes preliminary methods for enhancing the use of science in EU environmental decision-making.Item Reckless trading: critical analysis and proposals for reform(University College Cork, 2021) Breen, Roz; Lynch Fannon, IreneA company is an entirely separate person from its owners and controllers. Thus, if the company becomes insolvent, its directors are not responsible for its debts. The risks are instead externalised to the company’s creditors. The purpose is to encourage entrepreneurship and commercial risk-taking. This can, however, lead to reckless trading behaviours by directors to the detriment of creditors. Finding the correct balance between supporting valid commercial risk-taking and entrepreneurship, on the one hand, and encouraging financial responsibility towards creditors on the other is thus a crucial issue in company law. Too much emphasis on the former can result in financial and economic crises. Too much emphasis on the latter can stultify and have a chilling effect on business activity. This is where the concept of reckless trading becomes of vital importance. Measures have been introduced in many jurisdictions. A reckless trading provision exists in Ireland in the form of section 610 Companies Act, 2014. The purpose of these measures is to impose personal liability for creditors losses on directors who, when the company was financially distressed, ran the business in an irresponsible manner, causing otherwise avoidable losses to creditors. This type of legislation, both in Ireland and elsewhere, has been largely unsuccessful. The provisions are infrequently invoked and when they are, the success rate is low. The first central research question of this thesis is to investigate why this is so. These difficulties may arise from an internal source. It will be asserted that section 610 is confusingly and inadequately drafted. Suggested amendments to increase its invocation rate and effectiveness will be put forward. The problems may also derive from external factors. Reckless trading type behaviour may be infrequent. Moreover, high legal costs may deter liquidators and creditors from invoking the section especially as directors of failed companies may be financially constrained themselves. Once it has been determined why the provision is so infrequently invoked, the second central research question will be addressed. Considering the difficulties, perhaps a reckless trading provision is not required at all? The thesis will assert that the other rules and regimes examined due not act as suitable alternatives. Moreover, a reckless trading provision has theoretical support. The final research question asks whether, in addition to legislative amendments, other solutions also exist which could be deployed in tandem with a revised section. The role of public enforcement will be examined. The thesis will assert that a criminalised reckless trading provision would be neither beneficial nor effective. However, the potency of the provision would be considerably improved via civil public enforcement. In particular, it will be argued that the Office of the Director of Corporate Enforcement should have an oversight and invocation role with regard to the provision. Importantly also, the ODCE should be granted the ability to impose a financial sanction in certain circumstances. The thesis thus produces workable solutions to improve the efficacy of the Irish reckless trading provision.