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For Immediate Release

Press Release February 13th 2020:

Legal Challenge Allowed in Irish High Court against Approval of 4th PCI List. 

A new legal challenge against the approval by Ireland and the European Commission of the addtion to the 4th PCI List of the proposed  Shannon LNG US Fracked Gas Import project  without any sustainability assessment of the Climate Impacts has been allowed to proceed in the Irish High Court.

This is the second open High Court Case challenge concerning Shannon LNG and underlines the growing determination of environmental activists to fight the importation of US fracked gas into Europe without any consideration whatsoever of the climate impacts of the massive levels of Methane leakage from fracking.

This challenge by 'Friends of the Irish Environment' is reported by the Irish eNGO as follows on their website:

PRESS RELEASE

FEBRUARY 13, 2020

Shannon LNG Project faces new legal challenge

Judicial Review of listing as ‘Project of Common Interest’

The High Court has given leave to Friends of the Irish Environment [FIE] to challenge the decision of Ireland and the European Commission to adopt the proposed Shannon LNG Terminal and connecting pipeline as a ‘Project of Common Interest’ [PCI].

This designation assures developments of “the most rapid treatment legally possible” and the “highest status” possible for permitting. PCI projects are ‘of public interest from an energy policy perspective and may be considered as being of overriding public interest’, as well as qualifying for financial support.

Permission for the terminal was granted in March of 2008 but remained unbuilt during the 10 years of its permission. An application for an extension was granted in 2018 until 2023. That was challenged by FIE and referred by the High Court to the Court of Justice of the European Union in February 2019. An Opinion from the Advocate General is expected on 20 April 2020.

In its new action, FIE alleges that both Ireland and the EU failed to do the required independent sustainability/climate and cost-benefit analysis required before the legislation allows designation of the terminal as a ‘Project of Common Interest’.

The action includes the Irish Minister for Climate Action and the Environment and the Attorney General as FIE alleges that Ireland also failed to assess the project before approving its inclusion on the PCI list, including having regard to Climate Change and Low Carbon Economy Act 2015.

High Court Justice Dennis McDonald said today that the case was well made and in time, praising the clarity of the pleadings. He ordered that the European Commission be notified as a courtesy, although they are not Notice Parties.

FIE cites a letter from Ditte Juul Jørgensen, EU Director General for Energy, that “the available data were not sufficient to consider sustainability in a meaningful manner in the selection process”.  It also notes that Ireland itself has questioned if the ‘implications of importing LNG has been examined in terms of a sustainable, secure and competitive European energy policy and if not that should be undertaken.’

FIE is also seeking a declaration that Ireland is in breach of its obligations to provide a mechanism to allow citizens to ventilate the validity of a decision of the European Commission as required by the Treaty on the Functioning of the European Union.

FIE Director Tony Lowes said that ‘the decision to designate the Shannon LNG proposal as a PCI without the necessary assessment and consultations breached citizens natural and constitution rights. Because the European Court of Justice does not accept challenges directly from European citizens this novel case seeks to establish national NGO rights to directly challenge decisions of the European Commission before the European Court of Justice via the national Courts’.

FIE is represented by Fred Logue, Solicitor, James Kenny BL and James Devlin SC


Notes

FIE Briefing Note

https://Friendsoftheirishenvironment.org/images/Media/PCI_challenge_Briefing_Note_130220.pdf

[1] Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure

https://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex%3A32013R0347

[2] Article 267 TFEU.

Update:

PRESS RELEASE

FRIENDS OF THE IRISH ENVIRONMENT

APRIL 5, 2020

FOR IMMEDIATE RELEASE

High Court refuses State’s request for adjournment in Shannon LNG Judicial Review

Administration of Justice Can Not ‘Grind To a Halt’

The High Court has issued a Judgment refusing the State’s application for a delay in hearing an environmental challenge to the inclusion of the €500 million Shannon LNG fracked gas terminal on the fourth EU Projects of Common Interest (PCI) list. Inclusion on this list makes a project eligible for up to 50% funding and requires ‘the most rapid treatment legally possible’.

Friends of the Irish Environment brought the challenge to the decision-making procedure at the end of February, 2020. FIE alleges a failure by the State and the European Commission to have any or adequate regard to matters specified in the Climate Action and Low Carbon Development Act 2015 and to the assessment of ‘sustainability’ required for including the project on the list. FIE is also seeking a reference to the Court of Justice of European Union as the EU approved the project after the Ireland’s regional group recommended approval.

Justice Garrett Simons, in a Judgment delivered on Friday, rejected Principal Officer Mr. Kevin Brady’s argument on behalf of the Department of Communications, Climate Action, and the Environment that the June hearing should be set back until October, 2020.

In his affidavit, Mr. Brady said that the team required to deal with the case was dealing at present with the ‘implications and future potential implications of the Covid-19 virus for the security of supply of Ireland’s natural gas and electricity security’. He also said that the staff concerned could not work  as efficiently as they would otherwise be able to do as working remotely ‘not all have access to their full paper and digital files that would be necessary to provide full instructions on these proceedings’.

Pointing out that ‘the nature of the relief sought in these proceedings is such that the extent of the affidavit evidence required in response will be much less than in other judicial review proceedings’ as the principal relief sought was a reference to the European Court of Justice, Justice Simons called the case a ‘quintessentially a legal issue’. ‘Without wishing in any way to diminish the expertise of the Department officials, there is little, if any, by way of factual evidence which will be required from them in order for the High Court to determine these legal issues’.

‘The criticism’, he wrote, ‘made by the applicant is that a sustainability assessment was not carried out at the relevant time. It is not immediately obvious that it would be an answer to that complaint to prepare new reports or materials ex post facto.’

Noting that as part of the Strategic Infrastructure Division list the Court is obliged to ‘determine as expeditiously as possible consistent with the administration of justice,’ Justice Simons recognised the ‘unprecedented situation as the State seeks to respond the coronavirus disease pandemic’, stating ‘This Court would never do anything which would impede the ability of these officials to discharge their vital role in this time of national crisis.’

‘Unless the administration of justice is to grind to a halt entirely, however, this cannot represent a valid excuse for adjourning legal proceedings for a period of in excess of three months. All of us will have to accommodate ourselves to the new working environment demanded by the need to respond to the pandemic’.

Finally, Justice Simons concluded, ‘the court will be flexible as to the precise form which the hearing on 30 June 2020 takes. It seems to me that this is a case which could be dealt with by way of a remote or virtual hearing’, he concluded.

A spokesman for FIE welcomed the decision which they ‘hoped was a harbinger of a Court Service ready to embrace the potential of electronic proceedings’.

FIE is represented by Fred Logue, Solicitor, James Kenny BL and Neil Steen SC

ENDS

Contacts:

Fred Logue, FP Logue Solicitor: 353 (0) 1 531 3510

Tony Lowes, Friends of the Irish Environment: 353 (0)87 2176316

THE HIGH COURT JUDICIAL REVIEW 2020 No. 76 J.R. BETWEEN FRIENDS OF THE IRISH ENVIRONMENT CLG APPLICANT AND MINISTER FOR COMMUNICATIONS CLIMATE ACTION AND THE ENVIRONMENT IRELAND AND THE ATTORNEY GENERAL RESPONDENTS SHANNON LNG LIMITED NOTICE PARTY JUDGMENT of Mr. Justice Garrett Simons delivered on 3 April 2020


https://friendsoftheirishenvironment.org/images/LegalDocs/shannon_lng_adjournment_ruling_3_April_2020.pdf

FIE Briefing Note

https://Friendsoftheirishenvironment.org/images/Media/PCI_challenge_Briefing_Note_130220.pdf

Client Earth’s 20 January 2020 publication: ‘Non-compliance of the 4th PCI List with EU Law and the Paris Agreement’



 


            

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