Submission on Eirgrid Grid Link Programme
by Pat Swords BE CEng FIChemE CEnv MIEMA on behalf of the European Platform Against Windfarms (EPAW)
Grid Link involves over 250km of high voltage lines held up by 750 massive pylons, running through Cork, Limerick, Waterford, Wexford, Tipperary, Kilkenny, Laois, Carlow, Wicklow, Kildare and Dublin.
Grid West would have 100km of line and 300 pylons running through Mayo, Galway, Roscommon, Sligo and Leitrim. The Meath-Tyrone line would have 140km of line and 410 pylons linking Meath, Cavan, Monaghan, Armagh and Tyrone, while the Laois-Kilkenny line would run for 26km and include 80 pylons.
1. Introduction. 1
2. The Public’s Right to Participate in Decision-Making. 2
3. The National Renewable Energy Action Programme (NREAP) and Strategic Environmental Assessment 4
4. The Strategic Environmental Assessment Process for Grid25. 9
4.1 General 9
4.2 Failure to inform the public in an adequate, timely and effective manner 10
4.3 Failure to taking due account of the outcome of the public participation in the decision-making 12
4.4 Failure to provide for early public participation, when all options are open and effective public participation can take place. 14
5. Current Legal Proceedings in Relation to the Renewable Energy Programme. 17
6. Conclusion. 22
Eirgrid is proceeding with its Grid Link Programme in the South and East of Ireland as part of the massive expansion of the high voltage grid system in Ireland to facilitate a programme of 40% of electricity to be sourced from renewables, predominately wind energy, by 2020. It is currently in a public consultation process in relation to this Grid Link programme and this Submission has been submitted on behalf of the European Platform Against Windfarms. The European Platform Against Windfarms (EPAW) was founded on October 4th 2008 by a small number of federations, associations and other groups from four EU countries. It now has 621 member organisations, from 24 countries. It is based in Ireland. The Irish Member Groups are listed on the EPAW website. The aim of EPAW is to defend the interests of its members which are either:
· opposing one or more wind farm proposals;
· or questioning the effectiveness of wind farms as a tool for solving the problems of man and the planet;
· or defending the flora, fauna and landscapes from damage caused by wind farms, directly or through environmental degradation such as erosion, water contamination and bush fires;
· or generally fighting against the damaging effects of wind farms on tourism, the economy, people’s quality of life, the value of their properties and, increasingly often, their health;
· or a combination of the above.
The Grid Link Programme, with all its unacceptable environmental impacts, not least the industrialisation of the Irish landscape, is solely to facilitate the implementation of Ireland’s renewable energy programme, which in turn is almost exclusively focused on electricity generation from windfarms . There is no economic, technical or legal requirement for this wind energy programme. Indeed, until wind speeds of the order of double the region’s average wind speed are reached, this new investment in wind turbines and associated grid infrastructure, will not generate any useful electricity. The existing generation system and its grid infrastructure will therefore be continued to be required for the situation, where the wind speed is less than double the average, which naturally is the majority of the situation. The benefits of this renewable programme and its 7,145 MW of wind energy, some three thousand wind turbines, and a doubling of the existing high voltage grid by some 5,000 km of high voltage lines are negligible and complete disproportionate to its unacceptable impacts, both financial and environmental.
The core issues in this Submission are:
- The law requires public participation in decision-making. Consultation as is currently being conducted by Eirgrid, particularly as it is in the manner of a fait acompli, does not meet this requirement.
- Environmental information has to be made readily available to demonstrate the suitability of the proposal, i.e. the provision of the ‘necessary information’ within the context of ‘effective participation’.
- Public participation has to include reasonable time-frames for the different phases, allowing sufficient time for informing the public and for the public to prepare and participate effectively during the environmental decision-making. Public authorities, such as Eirgrid, are required to provide for early public participation, when all options are open and effective public participation can take place.
None of the above is being remotely complied with; the national renewable energy programme, the national programme to expand the grid (Grid25) and this Grid Link programme are all fundamentally flawed due to systematic non-compliance with the legal framework. Eirgrid should suspend, i.e. halt, its Grid25 and Grid Link programmes until the necessary legal compliance is ensured. If it does not do so, it will face increasing legal action from citizens, who will not tolerate their legal rights and their environment being abused in this manner.
In simple layman’s terms, a roll call (election) is held every five years or so in which public representatives are chosen. The operative word here is representatives; they are not chosen to rule us, but to represent us. Political ideologies and personalities come and go, but the general public are left with the environment around them, some development which is suitable and equally some development, which is far from suitable. Recognising this fact, in 1992 the United Nations’ Rio Declaration stated in Principle 10:
- Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
In other words, the public had to be given robust procedural rights in relation to ‘Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’. Indeed this is what formed the title of the United Nations Economic Commission for Europe’s Aarhus Convention, which drafted Principle 10 into a formal legal structure and applied it to the UNECE region of Europe and Central Asia, as the UNECE website states:
- Links environmental rights and human rights
- Acknowledges that we owe an obligation to future generations
- Establishes that sustainable development can be achieved only through the involvement of all stakeholders
- Links government accountability and environmental protection
- Focuses on interactions between the public and public authorities in a democratic context.
The subject of the Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement, it is also a Convention about government accountability, transparency and responsiveness.
The Aarhus Convention grants the public rights and imposes on Parties and public authorities obligations regarding access to information and public participation and access to justice.
The EU ratified the Convention in February 2005 through Decision 2005/370, declaring to UNECE:
- The European Community wishes to express its great satisfaction with the present Convention as an essential step forward in further encouraging and supporting public awareness in the field of environment and better implementation of environmental legislation in the UN/ECE region, in accordance with the principle of sustainable development.
- Fully supporting the objectives pursued by the Convention and considering that the European Community itself is being actively involved in the protection of the environment through a comprehensive and evolving set of legislation, it was felt important not only to sign up to the Convention at Community level but also to cover its own institutions, alongside national public authorities.
- Moreover, the European Community declares that it has already adopted several legal instruments, binding on its Member States, implementing provisions of this Convention.
- Finally, the Community reiterates its declaration made upon signing the Convention that the Community institutions will apply the Convention within the framework of their existing and future rules on access to documents and other relevant rules of Community law in the field covered by the Convention.
While Ireland only ratified the Convention in June 2012, it applied here since 2005 based on the primacy of Community Law, as Ireland is a Member State of the European Union.
If we look at the preamble of the Convention, see below, what one sees is only what is common sense, that decision-making should be based on sound logic based on proper consideration of environmental factors:
- Recognizing the importance of fully integrating environmental considerations in governmental decision-making and the consequent need for public authorities to be in possession of accurate, comprehensive and up-to date environmental information.
In addition, as previously documented, the environment does not belong to the State and the importance of the citizen is clearly defined in the preamble to the Convention:
- Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations;
- Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights;
The development of the EU’s 20% renewable energy programme was conducted in a dysfunctional and legally non-compliant approach. No environmental assessment was ever completed of what was to be built, where it was to be built, what it would actually cost, what would be the benefits, what would be the impacts, what would be the mitigation measures, etc. It therefore reached the position that the 20% target had to be implemented in the following manner, as described in Recital 15 of the 2009/28/EC Directive:
- The starting point, the renewable energy potential and the energy mix of each Member State vary. It is therefore necessary to translate the Community 20 % target into individual targets for each Member State, with due regard to a fair and adequate allocation taking account of Member States’ different starting points and potentials, including the existing level of energy from renewable sources and the energy mix. It is appropriate to do this by sharing the required total increase in the use of energy from renewable sources between Member States on the basis of an equal increase in each Member State’s share weighted by their GDP, modulated to reflect their starting points, and by accounting in terms of gross final consumption of energy, with account being taken of Member States’ past efforts with regard to the use of energy from renewable sources.
In other words, the 20% renewable energy target was ‘dished out’ to the Member States based on what level of renewable energy resources they already had, some like Sweden having considerable existing hydro sources, and a ‘fudge factor’ based on GDP. Neither were the proper public participation procedures followed in the development of this Directive, as not only was there an absence of environmental information on what was to be built, why it was to be built and where it was to be built, but also the public concerned were not contacted and provided with an opportunity to participate in this decision-making.
This dysfunctional and legally non-compliant process continued throughout its implementation. Member States were given little more than a year to adopt a National Renewable Energy Action Plan (NREAP) defining how their allocated National Target would be met. However, EU legislation which implements Article 7 of the Aarhus Convention requires that such plans or programmes related to Energy, which lead to future development consent of projects regulated by the Environmental Impact Assessment Directive, must undergo a Strategic Environmental Assessment before adoption. Note: Wind energy and high voltage transmissions lines are regulated by the Directive on Environmental Impact Assessment (87/337/EEC as amended). Therefore, full compliance with the Strategic Environmental Assessment Directive (2001/42/EC) should have been ensured before the NREAPs were adopted.
This did not happen, not only in Ireland, but also in the other Member States. The NREAPs were adopted by by-passing the Strategic Environmental Assessment and associated public participation. Indeed, if one considers the NREAP template produced by the EU, then the only Section which can be considered related to environmental issues and assessment was Section 5.3:
Nineteen of the Member States left this completely blank failing to fill out the table in above. The others essentially provided little or limited information, such as the UK, where the Renewable Energy Strategy predating the NREAP contained no environmental considerations of the impact of the programme. In Ireland’s case the NREAP went from Section 5.2 to Section 5.4. It had no Section 5.3.
EPAW has repeatedly brought this matter to the attention of both the EU Commission and the Member State administrations. The EU Commission’s response following a meeting between EPAW members and officials of DG Environment and DG Energy on the 3rd December 2010 in Brussels was that:
- So far as Directive 2001/42 was concerned, the Commission considered that any NREAP that did not create a framework for specific projects for purposes of Directive 85/337/EEC did not need to undergo a Strategic Environmental Assessment but that subsequent more detailed plans might need to do so. Ireland had confirmed that several plans relevant to renewable energy would undergo a Strategic Environmental Assessment process, including an offshore plan for which the Strategic Environmental Assessment process had already been launched.
However, this position used to justify a refusal to enforce the necessary provisions of the Strategic Environmental Assessment Directive is in complete variance with the position of the European Court. Firstly the NREAP defines the requirements for the electricity infrastructure development in Section 4.2.6 and the support schemes in Section 4.3. Sectoral targets are laid out in Section 3 and the measures for achieving those targets are defined in Section 4. In Section 5, the contribution of each renewable technology is defined, as the template states: “For the electricity sector, both the expected (accumulated) installed capacity (in MW) and yearly production (GWh) should be indicated by technology”, while Table 10 in Section 5 of the Irish NREAP specifies for 2020 in the Republic of Ireland, 4,649 MW of wind energy on the non-export scenario, rising to 7,145 MW of wind energy on the export scenario.
The NREAP is fundamentally a framework for development consent of projects regulated by the Environmental Impact Assessment Directive, as it defines what wind energy capacity is to be delivered and how it is to be delivered. Furthermore, it makes multiple references to Grid25, the programme to double the high voltage grid by more than 5,000 km of lines to facilitate the grid integration of all of this wind energy. In particular in Section 4 (Table 5), how Grid25 is a measure for achieving the target.
If one considers the Opinion of Advocate General Kokott of the European Court, as delivered on 4 March 2010 in Terre wallonne ASBL (C-105/09) and Inter-Environnement Wallonie ASBL (C-110/09) v Région wallonne, where it was necessary to consider the meaning of the terms “plan” and “programme” and the circumstances in which they set a ‘framework for development consent’ of projects, the Advocate General was very clear:
- 60. The term ‘framework’ must reflect the objective of taking into account the environmental effects of any decision laying down requirements for the future development consent of projects even as that decision is being taken.
- 61. It is unclear, however, how strongly the requirements of plans and programmes must influence individual projects in order for those requirements to set a framework.
- 62. During the legislative procedure the Netherlands and Austria proposed that it should be made clear that the framework must determine the location, nature or size of projects requiring environmental assessment. In other words, very specific, conclusive requirements would have been needed to trigger an environmental assessment. As this proposal was not accepted, the concept of ‘framework’ is not restricted to the determination of those factors.
- 63. The view of the Czech Republic is based on a similarly narrow understanding of the setting of a framework. It calls for certain projects to be explicitly or implicitly the subject of the plan or programme
- 64. Plans and programmes may, however, influence the development consent of individual projects in very different ways and, in so doing, prevent appropriate account from being taken of environmental effects. Consequently, the Strategic Environmental Assessment Directive is based on a very broad concept of ‘framework’.
- 65. This becomes particularly clear in a criterion taken into account by the Member States when they appraise the likely significance of the environmental effects of plans or programmes in accordance with Article 3(5): they are to take account of the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources (first indent of point 1 of Annex II). The term ‘framework’ must therefore be construed flexibly. It does not require any conclusive determinations, but also covers forms of influence that leave room for some discretion.
- 66. … The wording [of point 1 of Annex II] implies that the various characteristics may be concerned in varying intensity and, therefore, possibly not at all. This alone is consistent with the objective of making all preliminary decisions for the development consent of projects subject to an environmental assessment if they are likely to have significant effects on the environment.
- 67. To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources.”
Furthermore, the Judgment of the European Court on Terre Wallonne ASBL v. Région Wallone  ECR I-5611 was very clear on the obligation of the National Courts, when it is determined that the Strategic Environmental Assessment Directive has not been complied with:
- Where a national court has before it, on the basis of its national law, an action for annulment of a national measure constituting a ‘plan’ or ‘programme’ within the meaning of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment and it finds that the ‘plan’ or ‘programme’ was adopted in breach of the obligation laid down by that directive to carry out a prior environmental assessment, that court is obliged to take all the general or particular measures provided for by its national law in order to remedy the failure to carry out such an assessment, including the possible suspension or annulment of the contested ‘plan’ or ‘programme’.
Therefore, the National Renewable Energy Action Plan was adopted in a manner which was not lawful, having by-passed the Strategic Environmental Assessment and associated public participation, which was required by EU and National law. Neither is it lawful to continue with this national renewable energy programme, in particular as at no stage were ‘environmental considerations’ taken into the decision-making. Indeed, the Energy Policy Framework of 2007, which predated the NREAP and lead to its development, provided zero information on the environmental impacts and costs of the renewable programme. As Section 3.10.3 clarified:
- “We are setting very ambitious targets for expanding the role of renewable energy notably the target of 33% of electricity consumption to come from renewable resources by 2020. There are considerable challenges inherent in realising these ambitious targets. The growth of emerging technologies remains constrained by their relative cost. (Offshore wind which is capital intensive and technologically challenging is a case in point). High fossil fuel prices have contributed to making renewables more cost competitive but investment costs do remain a key challenge. The Government considers that the balance of social costs and benefits must be recognised as positive and that is our starting point”.
It is also worth pointing out, that both the Irish Administration and the EU were well aware in period 2009 to 2010 during the development of the NREAPs, that a Strategic Environmental Assessment was required. Not only is there written evidence of this, but additionally after the NREAPs had been submitted to the EU Commission on the 30th June 2010, a formal clarification was sent jointly by the Unit Heads of DG Energy and DG Environment in the EU Commission on the 7th July 2010 clarifying that a Strategic Environmental Assessment on the NREAP was not necessarily obliged at this stage of the process. Their position being that “if a Member State had decided not to include in its NREAP ‘specific mandatory measures’ to comply with, then a Strategic Environmental Assessment was not required at this stage”.
Again, this is a non-compliant position and completely contradicts Article 4 of the Renewable Energy Directive 2009/28/EC, which is very clear:
- “The National Renewable Energy Action Plans shall set out Member States’ national targets for the share of energy from renewable sources……adequate measures to be taken to achieve those national overall targets, including cooperation between local, regional and national authorities, planned statistical transfers or joint projects, national policies to develop existing biomass resources and mobilise new biomass resources for different uses”.
While Article 3 of the Directive is entitled:
- “Mandatory national overall targets and measures for the use of energy from renewable sources”.
Furthermore, if those mandatory targets were not to be adequately met, then the Commission’s position was to refer back those plans with a recommendation. This demonstrates that the EU Commission was both informed and clearly complicit in the decision not to complete any environmental assessment for this programme of enormous scale.
One can also point out, that not only had no such Strategic Environmental Assessment been completed for the renewable energy programme in Ireland, but as the Decision from the Commissioner for Environmental Information CEI/09/0016 demonstrated in this regard, there was not even a ranking system in place for considerations of technology alternatives in terms of their ability to meet the criteria in the Directive and no options considered to reach the objectives in the legislation.
Note: These matters in relation to the chronic legal failures in the implementation of the NREAP are part of the subject of current legal proceedings in the High Court: Pat Swords v Minister of Communications, Energy and Natural Resources No. 213/4122P.
The Strategic Environmental Assessment process under Directive 2001/42/EC is part of Member State law since 2004, transposed in Ireland through S.I. No. 435 of 2004 (as amended). Eirgrid therefore completed a Strategic Environmental Assessment for its Grid25 national programme, which included the required Environmental Report. Section 8.9 of the Grid25 Environmental Report is entitled: “Infrastructure Required to strengthen the National Transmission Network” and summarises:
- Approximately 828 km of new circuits will be required between now and 2025 to meet the needs of consumers and generators. This represents an increase of about 14% on the total length of the existing network. Of this, 568 km will need to be at 400 kV, 92 km will need to be at 220 kV or higher; the remaining 150 km will be at 110 kV. In addition to these circuits, others will be needed to connect many of the new generators to the Grid
- 2,530 km of the existing transmission network will need to be upgraded between now and 2025 to provide greater capacity. This comprises 740 km, or 29%, of the existing 220 kV network, and 1,790 km of the 110 kV network.
Pylons in size of 110 to 400 kV are extremely large, extremely visually obtrusive and extremely expensive. In addition to these extremely large high voltage circuits, additional high voltage circuits will be required to connect to the new wind energy capacity documented in the NREAP. These will be primarily 10 kV structures and while less visually obtrusive, still require as a minimum two large vertical supports with a single horizontal beam on top. In total, based on the All Island Grid Study, some 5,000 km of new high voltage lines will be required. It is also beyond doubt that this is a massive programme, not least in its potential to radically alter the visual landscape of the Irish countryside.
The Aarhus Convention requires that in relation to public participation in decision-making the “public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner”.
In European legislation, Article 6 of Directive 2001/42/EC in relation to ‘Consultations’ sates:
- The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure.
- Member States shall identify the public for the purposes of paragraph 2, including the public affected or likely to be affected by, or having an interest in, the decision-making subject to this Directive, including relevant non-governmental organisations, such as those promoting environmental protection and other organisations concerned.
- The detailed arrangements for the information and consultation of the authorities and the public shall be determined by the Member States.
Despite the clear obligation above in both the Aarhus Convention and the Directive on Strategic Environmental Assessment to ensure the public are informed in an adequate, timely and effective manner, Irish legislation failed to properly transpose these requirements. Instead in S.I. No. 435 of 2004, in Section 13(1)(b), there is solely an obligation to:
- Publish notice, in accordance with sub-article (2), of the preparation of the draft plan or programme, or modification to a plan or programme, and associated environmental report in at least one newspaper with a sufficiently large circulation in the area covered by the plan or programme, or modification to a plan or programme.
In its response of July 2011 to the questions presented to it by the UNECE Compliance Committee on Communication ACCC/C/2010/54, in relation to the compliance of the EU as a Party to the Convention and the Irish renewable energy programme, the EU replied in relation to the Strategic Environmental Assessment and its implementation in Ireland:
- In 2008, the Commission launched infringement proceedings against 11 Member States, including Ireland. The case against that Member State falls into two parts. First, it relates to Ireland’s failure to subject its National Development Plan for 2007-2013 to a prior environmental assessment. Second, there are several conformity issues with respect to Irish legislation purporting to transpose the Strategic Environmental Assessment Directive: (i) Articles 2(a) and 3(2), (3), (5), (6) and (7) in as much as Irish legislation does not cover all categories of plan and programme or modifications of them or does not cover them correctly; (ii) Article 6 in as much as the Irish legislation fails to provide for consultation of all relevant environmental authorities and the provisions for consulting the public are too limited; and (iii) Article 5 as there is inadequate provisions for consulting environmental authorities on the content of environmental reports.
- The Commission sent its reasoned opinion on 3 November 2009 and Ireland replied on 5 February 2010. The new legislation adopted by Ireland on 3 May 2011, the Planning and Development (Strategic Environmental Assessment) (Amendment) Regulations 2011 (SI 201 of 2011) has yet to be evaluated by the Commission and indeed Ireland has not even notified it officially to the Commission.
Indeed, if one considers S.I. No. 200 of 2011, as it states itself it has the aim of making plans, reports and decisions more accessible for public inspection, including on the website of the competent authority. However, it does not cure the chronic deficiency of the current legislation, in that it does not in any way ensure that the public concerned is informed in an “adequate, timely and effective manner”. Furthermore, the European Court has already made it clear in Commission v Ireland in case C-427/07 in relation to access to justice,
- In that regard, the obligation to make available to the public practical information on access to administrative and judicial review procedures laid down in the sixth paragraph of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and in the sixth paragraph of Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, amounts to an obligation to obtain a precise result which the Member States must ensure is achieved.
- In the absence of any specific statutory or regulatory provision concerning information on the rights thus offered to the public, the mere availability, through publications or on the internet, of rules concerning access to administrative and judicial review procedures and the possibility of access to court decisions cannot be regarded as ensuring, in a sufficiently clear and precise manner, that the public concerned is in a position to be aware of its rights on access to justice in environmental matters.
Indeed, time and time again the European Court has ruled against Ireland in that as regards Community Legislation, there is an obligation to obtain a precise result which the Member States must ensure is achieved. This obligation extends to public authorities, such as Eirgrid as a semi-state company. However, when Eirgrid completed the Grid 25 Strategic Environmental Assessment, they failed to ensure the participation of the public affected. As the Environmental Report documents, only 22 submissions were received and responded to; of which only three, including that of the Author, could be attributed to the public.
We now have the situation in November 2013, where right across the country, the public concerned in the regions where this infrastructure is to be built are only finding out for the first time what is planned for their area. Naturally, there is complete outrage, which not only Eirgrid is now aware of, but will also be self-evident from the content of other Submissions. However, from a legal perspective, what is clear is that Eirgrid failed to comply with its obligations to informed the public concerned “in an adequate, timely and effective manner”. It is not that the public concerned did not want to participate on the Grid25 decision-making, they were just not aware of what it was and what it was about.
The Aarhus Convention requires for both public participation in decision on individual projects and plans and programmes related to the environment that:
- “Each Party shall ensure that in the decision due account is taken of the outcome of the public participation”.
Page 158 of the “Aarhus Convention: An Implementation Guide” further defines that
- “The obligation to take into account public participation “as far as possible” establishes an objectively high standard to show in a particular case that public comments have been seriously considered”.
- “It is implicit in Article 6, paragraph 8, that any failure to take due account of the outcome of public participation is a procedural violation that may invalidate the decision. In appropriate circumstances a member of the public whose comments were not duly taken into account will be able to challenge the final decision in an administrative or judicial proceeding on this basis under Article 9, paragraph 2. It is therefore very important that authorities pay serious attention to the requirement that due account be taken of the outcome of public participation”.
In Section 15 of S.I. No. 435 of 2004, it is stated:
The competent authority shall take account of:
(a) the environmental report,
(b) any submission or observation made to the competent authority in response to a notice under article 13, and
(c) any consultations under article 14, during the preparation of the plan or programme, or modification to a plan or programme, and before its adoption.
As regards the development of the Grid25 Strategic Environmental Assessment, the Author made a concise Submission during its development phase. In his submission the issues raised included that; no Strategic Environmental Assessment had been completed for the renewable energy programme; there was a failure to comply with the legal binding requirements in relation to public participation; a failure to quantify the environmental objective of Grid25 and in particular to quantify the expected greenhouse gas savings and the alternatives to reach them and finally the presence of the on-going recourse (or “Communication”) at the UNECE Compliance Committee in relation to the non-compliance of the National Renewable Energy Action Plan (NREAP). On Section 2 point 2.4 of the subsequent finalised Environmental Report it is stated with regard to Submission No. 4 Pat Swords;
- “Comments on the undertaking of environmental assessment or otherwise of other policies, plans, programmes or projects is not within the scope of this report”.
- “The type and extent of future renewable energy projects is unknown and therefore it is not realistic to quantify impacts upon greenhouse gas emissions”.
From a logical perspective, one can only conclude that the environmental effects of doubling the network of high voltage lines to accommodate wind energy should be analysed cumulatively with the effects of the windfarms per se. For without the NREAP, there would be no need for Grid 25. It is a whole, and its combined negative effects must be balanced against its benefits as a whole. Indeed, one can also conclude that apart from a target pulled out of a hat, which will likely be increased later on by another target also pulled out of a hat, we don’t know how many windfarms we really want to have in the end, and by way of consequence, we haven’t got a clue of their effects on the environment, positive or negative. This is the way we conduct our energy policy, facilitated by the likes of Eirgrid, who flatly refuse to provide any environmental information to quantify the objectives of programmes of enormous scale, financial cost and environmental impact.
However, from a legal perspective, with regards to comments on other policies, plans, programmes or projects not being within the scope of their Grid25 report, this is simply ludicrous given that the very same NREAP in Section 2.5.5 of the Grid25 Environmental Report was part of the “Context for the Implementation Programme” and in Section 5.5.3 was part of the “Strategic Environmental Objectives”. Indeed, as previously mentioned, the NREAP repeatedly referenced Grid25 and its implementation.
So Eirgrid trivialised the public participation and failed to take due account of the outcome of this public participation in its final decision in adopting Grid25.
The Aarhus Convention requires for both individual projects and plans and programmes related to the environment that public authorities shall ensure; “early public participation, when all options are open and effective public participation can take place”.
However, this did not occur with regard to the renewable energy programme in Ireland and these and other failures in relation to the public participation and access to information, led to a Communication from an Irish citizen, namely the author Pat Swords, being accepted by the United Nations Economic Commission for Europe (UNECE) Aarhus Convention Compliance Committee. As Ireland was not then a Party to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, the Communication ACCC/C/2010/54 was accepted in relation to the EU as a Party.
On the 16th August 2012 the Compliance Committee issued its findings and recommendations, in relation to compliance by the EU with the terms of Convention, which applied to the implementation of the Renewable Energy Programme in Ireland. The Committee determined that the EU did not comply with the provisions of the Aarhus Convention in connection with its 20% renewable energy by 2020 programme (Directive 2009/28/EC) and its implementation throughout the 27 Member States by the National Renewable Energy Action Plans (NREAPs), namely:
· By not having in place a proper regulatory framework and / or clear instructions to implement Article 7 of the Convention with respect to the adoption of NREAPs by Member States on the basis of Directive 2009/28/EC has failed to comply with Article 7 of the Convention;
· By not having properly monitored the implementation by Ireland of Article 7 of the Convention in the adoption of Ireland’s NREAP also has failed to comply with Article 7 of the Convention;
· By not having in place a proper regulatory framework and / or clear instructions to implement Article 7 of the Convention with respect to the adoption of NREAPs by Member States on the basis of Directive 2009/28/EC has failed to comply also with Article 3, paragraph 1, of the Convention;
The Compliance Committee has therefore recommended that the EU is now required to put in place the necessary measures, such that they ensure that the arrangements for public participation in a Member State are transparent and fair and that within those arrangements the necessary information is provided to the public. In addition, such a regulatory framework and / or clear instructions must ensure that the requirements of the Convention are met, in relation to reasonable time-frames, allowing for sufficient time for informing the public and for the public to prepare and participate effectively, allowing for early public participation when all options are open, and ensuring that due account is taken of the outcome of the public participation. Note: These measures above relate to compliance with Article 7 of the Convention. Article 7 is less specific than a Strategic Environmental Assessment, the ‘necessary information’ being understood in the context of ‘effective participation’ rather than a defined environmental report. However, the scope of Article 7 is broader than that of the Strategic Environmental Assessment.
Therefore, with regard to the NREAP which incorporated the implementation of Grid25, it did not ensure that public participation occurred when all options are open. To clarify as to the development of the NREAP, the 2007 Energy Policy Framework which predated it stated:
3.4.6. The Government is committed to delivering a significant growth in renewable energy as a contribution to fuel diversity in power generation with a 2020 target of 33% of electricity consumption. Wind energy will provide the pivotal contribution to achieving this target.
3.4.8. Underpinning the Strategic Goals to enhance the diversity of fuels for power generation the following actions are underway or planned:
- We will achieve 33% of electricity consumption from renewable sources by 2020 through support for research, development, commercialisation, and technology transfer as well as grid connections and planning issues for offshore wind, ocean technology and biomass;
- We will, together with the NI Authorities, set an all-island 2020 renewables target during 2007 informed by the All-Island Grid Study;
- We will ensure the necessary transmission system planning and development in support of renewables by EirGrid and SONI and the Regulators in the all-island framework;
- We will progressively achieve 33% of our electricity consumption from renewable sources by 2020 with 15% the target for 2010;
This Energy Policy Framework did not comply with either Article 7 of the Convention or the Strategic Environmental Assessment. As Eirgrid’s own website states in relation to “The All-Island Grid Study” which followed on from this 2007 Energy Policy Framework:
- “In January 2008 the Energy Minister Eamon Ryan and his Northern counterpart Nigel Dodds, published the All-Island Grid Study, the most advanced and comprehensive of its kind in the world. The study examines: a range of generation portfolios for Ireland; the ability of the power system to handle various amounts of electricity from renewable sources; the investment levels required, and the positive externalities that would accrue with regard to climate change and security of supply”.
Following the publishing of this study, through the mechanisms of the 2008 ‘carbon budget’:
- Minister for Environment, John Gormley T.D. has announced a revised ambitious target for renewable penetration in the electricity sector. The new target of 40% is a significant increase from the previous goal of 33% and exceeds considerably both current EU targets of 20% and the UK’s current target of 15%.
- The Minister said: “One of the most effective ways of reducing our national greenhouse gas emissions is to generate as much electricity as possible from renewable sources rather than from fossil fuels. The previous Government adopted a target that 33% of electricity consumed would be from renewable sources by 2020. Today I can confirm that the Government has now agreed, on the recommendation of my colleague, the Minister for Communications, Energy and Natural Resources, Eamon Ryan, T.D. to increase this target to 40%. The target is underpinned by analysis conducted in the recent All Island Grid Study which found that a 40% penetration is technically feasible, subject to upgrading our electricity grid and ensuring the development of flexible generating plant on the electricity system.
No public participation occurred on this increase in the renewable target, let alone compliance with Article 7 of the Convention or the Directive on Strategic Environmental Assessment.
In the case of the NREAP, which according to the requirement of Article 4 of Directive 2009/28/EC, was notified to the EU Commission on the 30th June 2010, the limited and totally inadequate public consultation occurred on the 11th to 25th June 2010. As Una Dioxin of the Department of Communications, Energy and Natural Resources stated in her affidavit of the 7th March 2013 in Swords v Department of Communications, Energy and Natural Resources 2012 No. 920/JR:
- “I say and believe Mr Swords is mistaken in his contention that the NREAP decided policy on wind energy. I say that new renewable projects cannot be built without a grid connection and the process for ensuring sufficient grid connection to meet the 2020 target and the type of renewable technology concerned was decided well in advance of and before the submission of Ireland’s NREAP in July 2010”.
As the draft Grid25 Implementation Programme Strategic Environmental Assessment documents, it was dated March 2011. In other words it was a fait acompli, no options were open, the type of renewable technology, i.e. almost predominately wind energy, was decided well in advance, as was process for ensuring sufficient grid connections.
Grid25 in terms of its legal obligations of effective public participation when all options were open was a complete farce. Indeed, any competent engineer will point out how highly inefficient intermittent wind energy is, not least in the extensive grid connections required. There were a multiple of other approaches which could have been taken, not least using the other ten different sources of renewable energy identified in Directive 2009/28/EC and its 20% renewable energy target, which would have required far less in terms of grid infrastructure development.
If we refer back to Section 4.2 of this Submission and Article 6 of Directive 2001/42/EC, which in relation to ‘Consultations’ states:
- The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure.
The public have never been given an ‘early and effective opportunity’ to participate in the decision-making by Eirgrid, who is blatantly running roughshod over their democratic rights.
Approximately every three years there is a Treaty Conference called the Meeting of the Parties, where the circa. 45 countries, which have ratified the Aarhus Convention, convene. In preparation for the June 2014 Meeting of the Parties, the Compliance Committee wrote to the EU in July 2013 enquiring as to what progress had been made on its recommendations. The reply demonstrated that no progress has been achieved on the recommendation and no progress is envisaged.
The Compliance Committee has prepared, following its meeting in September 2013, its draft compliance report and has issued it for comment to the EU and the Author. It will finalise this report at its December 2013 meeting and publish it in advance of the Meeting of the Parties. The following are the conclusions of that draft report:
10. In its update, the Party concerned stated that “the Commission has taken due note of the findings and recommendations of the ACCC concerning compliance by the European Union with provisions of the Convention in connection with the Irish National Renewable Energy Action Plan” and “the Commission is preparing letters addressed to all EU Member States, informing them of the findings and reminding them to respect the provisions of the Aarhus Convention on public participation should the need to submit an amended National Energy Action Plan arise.”
11. In its comments on the Party concerned’s update, the communicant expressed doubts as to whether the Party concerned was implementing the recommendations of the Committee.
12. The Committee welcomes the preparation of letters to the Member States by the Party concerned. However, the Committee is concerned as to whether such letters will provide “a proper regulatory framework and/or clear instructions for implementing article 7 of the Convention with respect to the adoption of NREAPs”. The Committee is also concerned that it remains unclear how the Party concerned will “adapt the manner in which it evaluates NREAPs” in accordance with the recommendations of the Committee.
13. At its forty-second meeting (24-27 September 2013), the Committee concluded the draft of the present report and recommendations. The draft was then sent to the Party concerned and the communicant for their comments. [Both provided comments]. The Committee, considering the comments submitted, adopted the report and recommendations [using its electronic decision-making procedure][at its forty-third meeting (17-20 December 2013)] and agreed to submit it to the Meeting of the Parties.
14. The Committee recommends to the Meeting of the Parties, pursuant to paragraph 35 of the annex to decision I/7 and taking into account the cause and degree of non-compliance and measures taken by the Party concerned in the intersessional period, to:
(a) Endorse the findings and recommendations of the Committee as adopted at its thirty-seventh meeting;
(b) Welcome the efforts made by the Party concerned in the preparation of letters to the Member States.
(c) Express its concern to the Party concerned as to whether such letters will provide “a proper regulatory framework and/or clear instructions for implementing article 7 of the Convention with respect to the adoption of NREAPs” and that it remains unclear how the Party concerned will “adapt the manner in which it evaluates NREAPs” in accordance with the recommendations of the Committee.
(d) Invite the Party concerned to submit to the Committee periodically (in July 2014, July 2015 and July 2016) detailed information on further progress in implementing the recommendations set out above;
(e) Undertake to review the situation at its sixth session.
It is relevant to consider the position of the Compliance Committee and the endorsement of their findings by the Meeting of the Parties within the context of International Law. In Communication ACCC/C/2005/17 in relation to compliance by the European Community, the Compliance Committee in their findings ECE/MP.PP/2008/5/Add.10 recorded in paragraph 58:
The Committee notes the point made by the Party concerned (para. 23) that under European Community law, an international agreement concluded by the Community is binding on the Community institutions and the Member States, and takes precedence over legal acts adopted by the Community. According to the Party concerned, this means that Community law texts should be interpreted in accordance with such an agreement. In this context, the Committee wishes to stress that the fact that an international agreement may be given a superior rank to directives and other secondary legislation in European Community law should not be taken as an excuse for not transposing the Convention through a clear, transparent and consistent framework into European Community law (cf. article 3, paragraph 1, of the Convention).
According to the case law of the European Court of Justice, a provision of an international treaty is directly applicable: “when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure”
Furthermore, the case-law of the Arhus Convention Compliance Committee and the adoption of its decision by the Meeting of the Parties provides for relevant legal custom under international law, specifying the broad provisions of the Aarhus Convention. Ireland has already been made aware of the position of ‘mixed agreements’ and their position in Community legal order at the European Court in Case C-13/00 for failing to comply with the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971).
- Mixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements, as these are provisions coming within the scope of Community competence. It follows that, in ensuring respect for commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement. The Berne Convention creates rights and obligations in areas covered by Community law, with the result that there is a Community interest in ensuring that all Contracting Parties to the Agreement on the European Economic Area adhere to that Convention.
As Article 15 of the Aarhus Convention document, arrangements have been established for reviewing compliance with the provisions of this Convention. As the EU and the Irish State has demonstrated complete contempt for these arrangements and those of the Directive on Strategic Environmental Assessment, these matters are now the subject of legal proceedings by the Author against the State in the High Court. It is interesting to observe what can only be described as the petulance of the State, who already in evidence presented by their Senior Counsel in the hearing on the preliminary issues on Swords v Department of Communications, Energy and Natural Resources in April 2012 in front of the President of the High Court Justice Kearns, stated that the matters raised and the findings of the Compliance Committee were all nonsense. Indeed with regard to these findings, in particular Points 80 to 85:
- 83. Nevertheless, with respect to the consultation with the public conducted by Ireland the Committee finds that it was conducted within a very short time frame, namely two weeks. Public participation under article 7 of the Convention must meet the standards of the Convention, including article 6, paragraph 3, of the Convention, which requires reasonable time frames. A two week period is not a reasonable time frame for “the public to prepare and participate effectively”, taking into account the complexity of the plan or programme (see findings on communication ACCC/C/2006/16 (Lithuania), ECE/MP.PP/2008/5/Add.6, para. 69). The manner in which the public was informed of the fact that public consultation was going to take place remains unclear; neither the Party concerned nor the communicant provided clarity on the matter. The Committee furthermore points out that a targeted consultation involving selected stakeholders, including NGOs, can usefully complement but not substitute for proper public participation, as required by the Convention.
The State is now in its legal proceedings denying these findings and that the two week consultation, conducted without the necessary environmental information and without taking due account of the public participation in the final decision, was adequate and in compliance with the Convention. Indeed it is worth pointing out with regard to the situation of International Law, the Committee referenced above in relation to the NREAP consultation in Ireland its previous findings in relation to ACCC/C/2006/16 (Lithuania). These findings were then endorsed by the Meeting of the Parties in Riga in 2008, ECE/MP.PP/2008/2/Add.12 , with regard to 10 working days (i.e. two weeks) being inadequate with respect to public participation. Note: In the Lithuanian case this was for a landfill project, which while complex, is nowhere near as complex as a national renewable energy programme for some 7,145 MW of wind energy (circa. three thousand turbines) and a doubling of the grid by some 5,000 km of high voltage lines.
Following the hearing of preliminary matters brought forward by the State to quash the relevant proceedings on the initial High Court Judicial Review proceedings, by order of the President of the High Court of the 16 April 2013, leave has been given to commence plenary summons proceedings in substitution for the application for Judicial Review. The following claims are being made:
- A declaration that the Defendants have, in contravention of the Convention on Access To Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (“the Aarhus Convention”) and in contravention of the law of the European Union failed to adopt a proper regulatory framework for implementation of Article 7 of the Aarhus Convention.
- In addition to 1 above, a declaration that the Defendants have ,in contravention of the Convention on Access To Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (“the Aarhus Convention”) and in contravention of the law of the European Union and in contravention of the law of the State, failed, to have in place proper public participatory procedures, contrary to Article 7 of the Aarhus Convention. Such framework would provide, in accordance with the requirements of Article 6 of the Aarhus Convention (and in accordance with the law of the European Union and of the State) reasonable time frames allowing sufficient time for informing the public to prepare and participate effectively.
- A declaration that (a) the National Renewable Energy Action Plan (NREAP) submitted by Ireland purportedly pursuant to Article 4 of Directive 2009/28/EC to the Commission of the European Union and (b) the Renewable Energy Feed In Tariff (REFIT) scheme; and or (c) the Energy Policy Framework 2007 – 2020 (collectively “the plans or programmes”) were adopted in contravention of the Convention on Access To Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (“the Aarhus Convention”) and in contravention of the law of the European Union and of the law of the State. In addition and consequently a Declaration that the plans and programmes at (a) to (c) above are null and void and of no legal effect.
- A declaration that the Defendants have, in the circumstances complained of in these proceedings, failed to take such necessary legislative, regulatory and or other measures, to ensure proper and adequate implementation of the provisions of the Aarhus Convention.
- A declaration that the Defendants have in contravention of Articles 4 and 5 of the Aarhus Convention (and by reason of the breach of Article 7 set out above) and contrary to the law of the European Union failed to provide access to information requested by the Applicant concerning the NREAP adopted by the Defendant.
- In the alternative and in the event that it is held that the above matters are not justiciable or that this Honourable Court may make no order(s) in respect thereof, a declaration that the law, rules and procedures in the State concerning the complaints made by the Plaintiff have, contrary to Article 9 of the Aarhus Convention and/or contrary to Article 47 of the Charter of Fundamental Rights of the European Union (in respect of a matter within the scope of the law of the European Union and concerning the rights enshrined by Articles 37, 41 and 42 of the Charter) failed to provide the Plaintiff with an effective remedy.
- An order prohibiting the Defendants from relying upon the plans and programmes set out at paragraph 3 hereof insofar as the said plans and programmes may inform any decisions made concerning the Defendants or third parties until such time as the same plans and programmes (or any new iterations thereof) conform to the requirements of the Aarhus Convention and the law of the European Union.
- An order directing that in so far as the Defendant adopts or implements the said plans or programmes Defendant it does so in compliance with the Aarhus Convention and, inter alia: (a) providing access to all relevant information about the said plans or programmes; (b) providing adequate arrangements for public participation in the adoption of the said plans of programmes; (c) taking due account of the public participation in the adoption of the final plan or programme; (d) carrying out a Strategic Environmental Assessment according to Directive 2001/42/EC;
- A declaration that the Defendants have in respect of the adoption of NREAPs and by choosing to incorporate a process for participation contained in Directive 2009/28/EC as opposed to Directive 2001/42/EC failed to comply with the law of the European Union and of the State.
- A protective Costs Order in respect of the Plaintiffs costs to be made at an interlocutory stage of the proceedings.
- An order providing the Plaintiff with an Order for Costs of the within proceedings and in respect of proceedings between the parties under record number 2012 No.920 JR.
Essentially the above relates to an injunction on the national renewable energy programme until such time as the Directive on Strategic Environmental Assessment and Article 7 of the Aarhus Convention have been complied with. The use of the mechanisms of Plenary Summons was based on the conclusions of President of the High Court in April 2013 that the Convention did apply in Ireland since its ratification by the EU in 2005, despite a previous ruling by Justice Hedigan in Klohn -v- An Bord Pleanála  IEHC 196 that it did not, and that as Article 7 of the Convention was not time limited, it would not be appropriate to continue with the implementation of the national renewable energy programme up to 2020, if indeed it was determined that the relevant procedures related to public participation in Community legal order had not been complied with. These Plenary Summons proceedings are currently on-going and expected to be brought before the High Court again early in the New Year
This Submission clearly documents the utter ignorance that Eirgrid has shown for the legal framework on public participation in decision-making, not least by failing to adequately inform the public concerned, failing to ensure effective public participation when all options are open and failing to take due account of the public participation in their final decision-making. In addition to the legal ignorance in relation to the rights of the citizen, one can only marvel at the brazenness of Eirgrid which clearly believes that Irish citizens are going to tolerate some 5,000 km of unnecessary high voltage lines, at a cost of more than €4 billion added to their bills.
There are legal mechanisms; Article 7 of the Aarhus Convention on public participation on plans and programmes related to the environment is both clear in the necessary obligations on public authorities and in that it is not time limited.