PRESS RELEASE

FEBRUARY 13, 2020

FOR IMMEDIATE RELEASE

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

ENDS

Contacts:

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

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

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.

SEE ALSO

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

https://www.documents.clientearth.org/wp-content/uploads/library/2020-01-20-non-compliance-of-the-4th-pci-list-with-eu-law-and-the-paris-agreement-ce-en.pdf

FRIENDS OF THE IRISH ENVIRONMENT

7 February, 2020

Objection to release of fish movement records from research station

Complaints of research station discharging raw untreated fish waste and sludge directly into the sea

Release of information of movements of fish from the Bantry Marine Research Centre [BMRS] have been stalled by objections from third parties.

The research centre is under investigation by the Department of the Marine after reports were received by Friends of the Irish Environment of ‘horrendous smells’ on the Sheep’s Head public road in west Cork.

Authorities have been requested to investigate commercial production of cleaner fish when FIE says the 2018 licence for BMRS states ‘The variety of species to be produced annually is for experimental purposes only and will not exceed more than 2 tons of standing stock at any one time’.

BMRS’s website states they hold 1,000,000 lumpfish for commercial sale to salmon farms to work as cleaner fish from September 2019 until April 2020. In 2017 24.5% of the shares were sold to Cervellos Limited, controlled by Daniel Tierney, the Irish pharmaceutical owner. The company has since invested €2,119,230 in BMRS.

 The Station, which has been in operation since 1991 was originally as part of the Aquaculture and Development Centre (ADC), University College Cork. However, in late 2005 it was established as an independent research station.

The request for fish movement records was made to the Marine Institute, who have informed FIE that ‘A case has been made by a third party to the release of records’ and that consequently they have extended their date for consideration for 20 working days.

The Local Authority is also investigation the unauthorised construction of buildings at the site.

‘The Ministerial decision in March 2018 that an EIA was not necessary was based on ‘research use’ only and permitted only ‘the sourcing of fish from the wild’, not the import of eggs from another country’, said FIE’s Tony Lowes.

 ‘The use of lumpfish for controlling salmon parasites in open net pens is unassessed and controversial in itself. The fact that they are being produced and exported on a commercial scale under a restricted ‘experimental licence’ highlights concerns over the exemptions from full assessments provided to these establishments by the Minister.’

Galway Bay Against Salmon Cages recently released the data provided by the Marine Institute showing that more than 1.5m wrasse had been taken in Irish waters between 2015 and 2019 for use as cleaner fish to control parasites on fish farms.

‘Residents themselves have complained to these authorities about discharging raw untreated fish waste and sludge directly into the beach only to be told by each authority that the issue is for another authority.’

FIE has published photographs of the upwelling sludge on the Sheep’s Head beach on its website and Facebook page.

ENDS

CONTACTS

Tony Lowes, Friends of the Irish Environment, 353 (0)87 2176316 / 353 (0)27 74771

Galway Bay Against Salmon Cages:

Billy Smyth 353 (0) 86 3611628

Brian Curran 353 (0) 87 2509722  

Details and documentation links:

https://www.friendsoftheirishenvironment.org/press-releases/17750-cleaner-fish-row-research-station-unlicensed-for-commercial-production

‘Draconian’ Planning Bill undermines European Commission policy

Asa the consultation period on the proposed Planning a Development Bill 2019 ends, Friends of the Irish Environment’s [FIE] submission on the restrictions to public participation has also highlighted how the proposed restrictions on access to national courts conflicts with the recent policy of the European Commission.

The proposed restrictions include a requirement for community groups or NGOs [non-Governmental organisations] to be established for three years rather than the current one year and a requirement for them to have a minimum of 100 members.  Changes to the ‘cost’ rules will make it more difficult for ‘pro bono’ representation. The requirement for being granted leave to bring a Judicial review will replace ‘sufficient’ interest with a ‘substantial’ interest in a way which must be ‘peculiar or personal’.

FIE has said that the changes run entirely counter to the European Commission’s current enforcement policy. ‘While Environmental law has traditionally been reliant on the European Commission’, a spokesman said, ‘in these last years the Commission has started to withdraw from enforcement. From 1992 - 2010 60% of the environmental cases before the European Court of Justice were initiated by the Commission. This has fallen to 22% in 2017.

‘The Commissions is undertaking efforts to ‘outsource’ enforcement to environmental NGOs by systematically promoting access for such groups to national courts through Aarhus Convention on Access to Justice. This Convention requires member states to give ‘access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities.’ Yet Ireland is placing obstacles for access to our Courts when the Courts are the only appeal from large scale projects.

The Housing and Planning and Development Bill 2019 thus not only undermines the current legal rights of participation but also the European Commission’s policy to systematically promote access for groups to national courts to ensure the enforcement of environmental law.

Today was the closing day for public submissions.

FIE Submission

FRIENDS OF THE IRISH ENVIRONMENT

PRESS RELEASE

FOR IMMEDIATE RELEASE

MONDAY 27 JANUARY, 2020

Poland Supports Ireland’s Refusal to Release Court Records

European Commission backs Irish NGO in non-transparency case

An Irish NGO’s challenge to the Irish Court Service’s ruling that in controlling access to litigation documents the Courts Service acts indefinitely in a judicial capacity has been opposed by Poland.

The matter had been referred to the Court of Justice of the European Union [CJEU] by the Irish High Court in April 2019 for a preliminary ruling on the interpretation of EU law (Case C-470/19).

The Courts Service maintains a policy that only the parties to litigation and their lawyers may obtain access to litigation documents on request, with limited access being granted in addition to “bona fide members of the press”.

Ireland's Commissioner for Environmental Information, the Courts Service and the State argue that even after a case has ended with no appeal, the Courts Service is excluded from the ambit of the EU's transparency rules.

Friends of the Irish Environment [FIE] argues that once a legal case has concluded (with a judgment and no appeal), the Courts Service is no longer acting in a judicial capacity in holding the documents.

All EU Member States and the European Commission were given the opportunity to make observations on the case before the CJEU. Of the Member States, only Poland took up the opportunity, intervening on Ireland's side. The European Commission, in contrast, intervened in support of FIE's position.

FIE last week filed a request for an Oral Hearing.

Tony Lowes of FIE commented, "This looks set to be a very important case. On one side we'll have Ireland and Poland - the latter deep in the midst of a rule of law crisis - arguing in favour of a restrictive interpretation of EU transparency laws, while on the other side will be FIE and the European Commission promoting an interpretation consistent with broad access to information. We're very much looking forward to taking this case to Europe's highest court."   

CONTACT

Tony Lowes 353 (0)87 2176316 / 353 (0)27 74771

NOTES

The question relates to the meaning of acting in a “judicial capacity” for the purpose of EU Directive 2003/4/EC on public access to environmental information. Where a body is acting in a judicial capacity, Member States may exclude them from the definition of “public authority”; public authorities are in principle open to access to environmental information requests pursuant to the Directive, subject to limited exceptions.

The lack of public access to litigation documents means that litigants in subsequent cases cannot benefit from direct knowledge of the previous arguments and evidence presented or check arguments for consistency over time. It also means that lawyers may have to effectively reinvent the wheel each time a new case is taken. 

The result is that while the public is generally allowed to sit through and take notes of most civil proceedings if they are in a position to attend court in person, the public may not generally obtain access to the documents that parties’ lawyers and the judge are referring to in court, even where the documents are produced for the State or for public bodies using public funds.

CASE HISTORY

In 2016 FIE wrote to the Courts Service requesting access to litigation documents in respect of an environmental case that had been heard by the High Court in which FIE had not played a part but in which it had an interest in the arguments made. The Courts Service reiterated its policy and refused access to the documents. FIE appealed the Courts Service’s decision to the Commissioner for Environmental Information who ruled in favour of the Court Service.

FIE appealed the Commissioner for Environmental Information’s decision to the High Court in September 2017. After a two-day hearing in April 2019, Ms. Justice O’Regan decided to adjourn the case in order to ask the CJEU for a preliminary ruling on a point of interpretation of EU law

ENDS

The Question Referred

‘Is control of access to court records relating to proceedings in which final judgment has been delivered, the period for an appeal has expired and no appeal or further application is pending, but further applications in particular circumstances are possible, an exercise of ‘judicial capacity’ within the meaning of Article 2(2) of Directive 2003/4/EC?’

Observations lodged in relation to a reference for a preliminary ruling are notified solely to the parties referred to in Article 23 of the Statute. In the interests of the proper conduct of the procedure, those observations may not be published, nor communicated to third parties.

FRIENDS OF THE IRISH ENVIRONMENT

PRESS RELEASE

23 January 2020

FOR IMMEDIATE RELEASE

EPA faces High Court challenge from climate activists

Stopping all peat extraction is a ‘no-brainer’

The High Court this week allowed climate activists to bring a Judicial Review against the Environment Protection Agency [EPA] for accepting an application for the industrial extraction of peat.

Friends of the Irish Environment [FIE] have brought the action alleging that the Agency acted on the basis of legislation the organisation had successfully struck down by the High Court in September 2019.

The case is the latest in a series of High Court cases that began after An Bord Pleanala ruled in 2013 on a Reference from FIE that industrial extraction of peat on sites of more than 30 hectares required planning permission. Peat companies legal challenges to the Board's ruling were finally dismissed by the High Court in 2018, but in January 2019 Statutory Instruments (SIs) exempting peat extraction from planning permission were signed into law by Ministers Bruton and Murphy.

FIE obtained a temporary injunction staying the implementation of these SIs from Justice Garrett Simons of the High Court, sitting in Cork in July 2019, who ruled that the ‘Risk of harm to the environment is self-evident’ and that the ‘State has not been able to point to any countervailing factor which might be legitimately weighed against this risk’. ‘It cannot be said’, he concluded, ‘that the State has an arguable defence’.

The SIs were formally quashed by the High Court on 20 September 2019, reinstating the requirement for planning permission as one effect of the SIs would have been to amend the EPA Act by removing the requirement for an applicant for a licence to have a valid planning permission. Notwithstanding this, the EPA accepted a licence application on 13 October 2019 without the required planning permission.  

‘The EPA licensing process is primarily concerned with the emissions from a proposed activity. It assumes that the activity has undergone public consultation and its impacts on international and national policy, the public and the wider environment have been fully considered and if necessary conditions imposed by a local authority.’

According to FIE, ‘the EPA legislation is quite clear in requiring an applicant for a licence to have obtained or applied for planning permission before applying for a licence, including retention for any works done without authorisation. If the applicant cannot show that he has done so, the EPA must by law refuse to consider the application. That is very clear, but it didn't happen in this case and that's why we've had to turn to the Courts - again.’

‘It is difficult to understand how the Government and its Agencies can proclaim their climate virtues when behind the scenes they are doing all they can to facilitate the exploitation of our bogs. 75% of Ireland’s national carbon store is held by Ireland’s peaty soils – stopping all peat extraction is a no-brainer.

FIE is represented by O’Connell and Clarke Solicitors with James Devlin SC and Barristers Oisin Collins and Margaret Heavy.

COMMENT

Tony Lowes 353 (0)27 74771 / 353 (0)87 2176316

David Healy [Irish language]: 353 (0)87 6178852

NOTES

 Irish Legal News analysis of Justice Simons ruling:
https://www.irishlegal.com/article/high-court-environmental-activists-successfully-challenge-the-validity-of-peat-extraction-legislation

VIDEO : 60 seconds drone video of industrial extraction from July 12, 2019.
https://www.youtube.com/watch?v=AXdRNCluZDc