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 J�rgensen, 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’
