FRIENDS OF THE IRISH ENVIRONMENT
TUESDAY 28 APRIL 2020
FOR IMMEDIATE RELEASE
Advocate General to give Opinion on Shannon LNG Project this week.
Does extension of duration planning permission require Habitats Directive assessment?
The Advocate General of the Court of Justice of the European Union will give an Opinion on the questions relating to the 2018 decision of An Bord Pleanála to extend the 2008 planning permission for a €500m Shannon LNG terminal for a further five years. The Opinion will be delivered in Luxembourg this Thursday, 30 April 2020.
A Preliminary Reference to the CJEU was made by Mr Justice Garret Simons on 1 February 2019 after a Judicial Review was brought by Friends of the Irish Environment [FIE].
Preliminary references to the CJEU are made by national courts to seek clarification on questions of EU law. Once the EU Court hears written arguments from the respective parties the Advocate General issues a non-binding Opinion which is taken into account subsequently when the Court gives its judgment. The case then reopens in the referring national court for it to apply the interpretation.
The primary question in this case sought to determine if the extension of a planning permission period triggered the requirement for a new or updated environmental assessment under the Habitats Directive.
A previous challenge by FIE to the original permission in 2008 for its failure to include such an assessment failed. Justice Simmons, in referring the case to the ECJ, pointed out that when the original planning permission was granted in 2008 Ireland was actually in breach of EU law because ‘the [Irish] legislation incorrectly equated an appropriate assessment for the purposes of the Habitats Directive with an environmental impact assessment for the purposes of the EIA Directive’.
The Irish Court therefore ruled that the original permission did not contain the required “complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the site concerned”. Thus the question now arose if this ‘decision to extend the duration of a planning permission engages the Habitats Directive’?
The State argued that the original planning permission could not be challenged as it would be a ‘collateral attack’ on a long-established planning permission. On this, the Irish Court has also asked the Commission to determine ‘if the national court must ignore the domestic procedural law which precludes an objector from questioning the validity of an earlier (expired) development consent in the context of a subsequent application for development consent’?
‘Is the competent authority required to have regard to any or all of the following considerations’, the Reference continues, citing ‘possible changes to the environmental background’ or ‘new scientific knowledge of the site’.
Finally, the ‘Lazarus’ powers of An Bord Pleanála to extend a permission which had expired is to be considered. The Reference points out that the logic which allows a permission to be extended after it has expired as An Bord Pleanála did in this case ‘would allow a developer with a 10 or 20 year old permission to proceed and avoid safeguards found elsewhere in the planning code to ensure that the development remained consistent with development plans and that any new scientific knowledge and environmental changes could be taken into account.’
The Irish High Court chose not to invalidate the ‘purported’ planning permission based on Irish law; instead Justice Simons decided to refer the issues to the European Court of Justice to ‘ensure that crucial points of environmental law could be clarified by Europe’s highest court so that authorities in every Member State would be clear about the obligations in relation to extensions of duration of planning permission’.
There are strong parallels between this case and FIE’s 2017 challenge to an extension of the duration of planning permission to build a third runway at Dublin Airport.
In that case the judge found that an extension of time under a difference provision of the Planning Acts did not require new or updated environmental assessments.
Legislation to ensure that permissions for large projects that might have significant environmental affects cannot be extended without the necessary assessments has been passed by the Oireachtas but not yet signed into law. The Aarhus Convention Compliance Committee subsequently issued findings calling into question the compatibility of Irish legislation in this area with the Aarhus Convention.
A separate FIE challenge against the project’s inclusion in the EU Projects of Common Interest is due to be heard in the Irish High Court on 30 June, 2020 on the grounds that the project has not been subject to the necessary assessment to qualify as a priority project at EU level.
FIE is represented by FP Logue, Solicitors; Barristers Mr John Kenny BL and Mr James Devlin SC
Contacts: Fred Logue +353 (0)87 1316023
Tony Lowes: +353 (0)87 2176316
Daithí Ó hÉalaithe (Irish language) +353 (0)87 6178852
Irish High Court Judgment:
This Press Release:
PRESS RELEASE THURSDAY 5 MARCH
Irish anti-fracking groups to launch fundraiser in New York opposing Shannon LNG plant
Irish Anti-Fracking activist meet UN to discuss global fracking ban
A fund-raising drive to support the legal costs of the opposition to the proposed fracked gas LNG Terminal on the Shannon River is to be launched tomorrow [Thursday 5 March] in New York City.
NGOs are challenging the designation of the proposed terminal as a European ‘Project of Common Interest’. The designation assures developments of “the most rapid treatment legally possible” and may be considered as being of ‘overriding public interest’, as well as qualifying for financial support.
A previous legal challenge to the extension of the planning permission for the terminal for five years is currently before the European Court of Justice. A preliminary Advocate General’s opinion on that case is expected on 30 April, 2020. The new challenge is now being expedited by the Irish Courts.
Eddie Mitchell of Love Leitrim, who is a guest speaker at the event, will announce the drive at a meeting in New York City entitled ‘Global Impacts of Fracking: From Pennsylvania to Europe and Back’. He explained “We banned fracking in Ireland because we listened to the alarm raised by affected communities like those living in Pennsylvania. We’re not going to facilitate the further poisoning of those people by importing fracked LNG into Ireland.”
Andy Gheorghiu of the Brussel based Food and Water Action Europe, highlighted the importance of the case across Europe: ‘This isn’t simply a case about Ireland – none of the projects on the PCI list which opens up €3 billion of funding were assessed for sustainability or climate. Ireland is leading the way in challenging the fossil fuel lock in proposed by the European Commission, in spite of the Green New Deal.’
Meaghan Carmody of Friends of the Earth said ‘This is a real, effective Climate Action with far-reaching consequences for Ireland and Europe’s energy choices – and for all our futures.’
Activists from Germany, Mexico, Ireland, and Pennsylvania will highlight fracking’s far-reaching harms, from health problems to climate change to the explosion in plastics production.
Before the evening event the activists will meet with Satya Tripathi, UN Assistant Secretary-General and Head of New York Office at UN Environment to discuss support for a global ban on fracking to tackle the plastic and climate crisis.
The United Nations Environment Programme (UNEP) is the leading global environmental authority that sets the global environmental agenda, promotes the coherent implementation of the environmental dimension of sustainable development within the United Nations system, and serves as an authoritative advocate for the global environment.
The meeting was the result of an open letter sent to the United Nations Secretary-General António Guterres last September. That letter – a Global Action organised by Food & Water Action, its European arm Food & Water Europe and the Breathe Project in Pittsburgh — was signed by nearly 460 grassroots groups, faith communities, celebrities, activists and organisations, including actors Mark Ruffalo, Emma Thompson and Amber Heard, authors and activists Naomi Klein, Bill McKibben, fashion icon Vivienne Westwood and her son Joe Corré.
The evening event is hosted by Food and Water Watch New York and sponsored by City University of New York School of Law Centre for Urban Environmental Reform and School of Law Environmental Justice Coalition.
For more information
Andy Gheorghiu, Food & Water Europe, a program of Food & Water Watch
Telephone: +49 5631 50 69 507 / mobile: +49 160 20 30 974
Eddie Mitchell, Love Leitrim
Telephone: +353-87-223 9972
Global Action Letter