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For Immediate Release
Press Release March 30th 2021: 

High Court Case Lost. Shannon LNG allowed to remain on the 4th PCI List because of  a loophole exempting the Irish Government from having regard to the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.

- Government must agree immediately to close this loophole in order to avoid the Climate Bill from falling into disrepute


A 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 failed in the Irish High Court today.

A loophole in the Climate Act was successfully argued by Eamon Ryan's Department in the High Court to allow Shannon LNG stay on the 4th PCI list.

The existing loophole under Article 15 of the Climate Action and Low Carbon Development Act 2015 concerning the duties of certain bodies, exempts the Government from the list of relevant bodies - where, under Article 15(1) "a relevant body shall, in the performance of its functions, have regard to - (a) the most recent approved national mitigation plan, (b) the most recent approved national adaptation framework and approved sectoral adaptation plans, (c) the furtherance of the national transition objective, and (d) the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State" .

The State argued that the Government was not a relevant person under the 2015 Act when it took the decision to include Shannon LNG on the PCI List. 


Controversially, the loophole used by Eamon Ryan's Department  in the High Court was not closed off in the re-drafted Climate Action and Low Carbon Development (Amendment) Bill 2020 (the Climate Bill) which was also re-drafted by the same Department of the Environment, Climate and Communications.

The ruling is to the advantage of Shannon LNG, which is set to re-apply for planning permission using the public-interest status of being a project on the 4th PCI  List.

No written policy on fracked gas has yet been produced by Eamon Ryan's Department in the 9 months since it was agreed upon in the Programme for Government - again to the advantage of Shannon LNG.

No legislation in the Climate Bill was proposed by Eamon Ryan's Department against the importation of fracked gas, even though it was proposed that it could be done in the Climate Bill in the Pre-legislative scrutiny report on the Climate Bill by the Joint Oireachtas Committee on Climate Action - again to the advantage of Shannon LNG.

It seems that every 50-50 chance falls on the side of Shannon LNG. The loophole exempts the government from having any obligation to have regard to the effets of climate change and greenhouse gas emissions and brings the Climate Bill itself into disrepute. Minister Ryan and the Government must immediately agree to close this loophole.

The challenge by Friends of the Irish Environment against a project being added to the 4th PCI list is the only legal challenge anywhere in Europe against the approval of 32 fossil gas projects added to the EU Projects of Common Interest List without any sustainability assessments of their impacts on climate.

With the latest study by consulting firm Artelys for the European Climate Foundation published on January 20th 2020  finding that “the 32 natural gas infrastructure PCI projects combined are calculated to come at a cost of €29 billion” and concluding that “most of the 32 gas infrastructure projects on the 4th PCI list are unnecessary from a security point of view, and represent a potential overinvestment of tens of billions of EUR, supported by European public funds”, is it now clear that there is one law for fracked gas and fossil fuel polluters and another law for everybody else. That is not fair or right.

Deputy-Director General of DG Energy, Klaus-Dieter Borchardt admitted breaches by DG Energy of the PCI Regulation  to the ITRE Committee on October 17th, 2019 in not assessing the climate impacts of the gas projects on the 4th PCI list, but he said that this assessment would be undertaken for “future projects”.

Energy Commissioner Kadri Simson  then admitted to the ITRE Committee meeting of December 5th that the EIB ban on fossil fuel financing would  not apply to projects on the 4th PCI list, noting that PCI Status is a pre-condition for CEF funding.

 

It is now clear that the 4th PCI list was  used to circumvent the EIB ban on climate-unfriendly gas projects before the loophole gets closed in the 5th PCI list.

PCI accreditation from the European Commission is extremely powerful because any projects put on this list are allocated the status of "overriding public interest“ in a special fast-track planning process in each Member State and are thus almost guaranteed development consent.  5 projects for LNG terminals in Ireland, Croatia, Cyprus, Greece and Poland were included on the 4th PCI list (out of a total of 14 that have received support from the EU since 2013).

 

That means the gas PCI projects must get priority over even renewable energy projects in Member States.  Obfuscation is being practiced by the developers, the Member States and the European Commission on a grand scale by insinuating that the only advantage to PCI accreditation is funding. 


Click here to view the JUDGMENT of Mr. Justice Garrett Simons delivered on 14 September 2020  refusing a preliminary reference to the European Court of Justice on whether Shannon LNG was illegally added to the PCI List

 
Click here to view the JUDGMENT of Mr. Justice Garrett Simons delivered on 30 March 2021 ruling that the Climate Act 2015  effectively "be construed as applying to a Minister up to the door of the Cabinet room, ceasing to apply at the threshold and then re-attaching to the Minister on exiting the room

Friends of the Irish Environment report as follows:

PRESS RELEASE
FRIENDS OF THE IRISH ENVIRONMENT
TUESDAY 30 MARCH 2021
FOR IMMEDIATE RELEASE

No obligation on Government to have regard to national Climate Mitigation Plan

Loophole in Climate Change and Low Carbon Development Act 2015 revealed in Court Judgment means the Government has no legal obligation to have regard to its own Climate Change policy

In a High Court judgment delivered this morning by Justice Garrett Simons dismissing a Judicial Review brought by Friends of the Irish Environment challenging the inclusion of the Shannon LNG project in the EU Projects of Common Interest list [PCI], the Court ruled that ‘There is no statutory obligation on the Government, in the exercise of its executive power under the Constitution of Ireland, to have regard to a National Mitigation Plan nor to the furtherance of the national transition objective.’

The projects of common interest are projects identified by the European Union as key priority for interconnecting Europe’s energy system. Projects included on the PCI list are eligible to apply for public finance and must be handled under a dedicated fast tracked permitting procedure. In principle these projects may be built even where they would adversely affect protected habitats.

The Shannon LNG proposal was for a terminal on the Shannon River to receive liquified natural gas shipments including fracked gas from the United States. While the planning permission for an earlier terminal was struck down by the High Court after a challenge by FIE the developers renewed their application to keep the project on the PCI list agreed in 2019 and have indicated they are preparing a new application.

In an earlier judgment the High Court ruled that it had no jurisdiction to ask the Court of Justice of the European Union to rule on the validity under EU law of the inclusion of this project on the 4th PCI list.

In today’s judgment the Court has ruled that it also lacks jurisdiction to consider whether Ireland’s approval of the project was compatible with Irish law.

In the current case challenging the PCI approval, which is valid until September 2021, FIE argued that the State had a form of ‘veto’ over the inclusion of any project located within its territory and that the project should have been assessed as required under Section 15 of the Climate Action and Low Carbon Development Act 2015. The decision not to veto the inclusion of the project breached the requirements of the Section 15 of that act which imposes an obligation on a ‘relevant body’ to have regard to the ‘national transition objective’.

Not only did the State not do so, but it made a successful representation on 2 July 2019 to have the Shannon LNG terminal added to the PCI list after it had initially been excluded from the draft list.

The issue of the State’s obligations under the Climate Act was the subject of a virtual High Court hearing on 21 January 2021 and three sets of subsequent written exchanges during January and February.

The Minister for Communications, Climate Action and the Environment, Eamon Ryan, claimed that the Government did not have to ‘climate proof’ the proposal because they were not a ‘relevant body’ under the legislation.

Justice Simons ruled that there was ‘no statutory obligation on the Government, in the exercise of its executive power under the Constitution of Ireland, to have regard to a national mitigation plan nor to the furtherance of the national transition objective. This follows from the fact that the definition of “relevant body” for the purposes of section 15 of the CALCD Act 2015 does not include the Government.’ He concluded: ‘The Government is not caught by the definition of a “relevant body”.

FIE Director Tony Lowes said the organisation was ‘totally bewildered’ by the decision and its ramifications.

‘Surely this is a loophole in the law if it allows the Government to entirely ignore the its own Climate Change policy ? How can it be’, he asked, ‘that the Climate Act be construed as applying to a Minister up to the door of the Cabinet room, ceasing to apply at the threshold, and then re-attaching to the Minister on exiting the room?’

 

ENDS

Comment: Fred Logue , FP Logue Solicitors, 353 (0)87 1316023
Tony Lowes, Friends of the Irish Environment 353 (0)87 2176316

Friends of the Irish Environment were represented by F. Logue, Solicitor, J. Kenny, Barrister-at-Law, and J. Devlin, Senior Counsel.



 



Contact:
John McElligott
Safety Before LNG
(087-2804474)
SafetyBeforeLNG@hotmail.com

 





            

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