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.
