Friends of the Irish Environment CLG v Minister for Communications Climate Action and the Environment

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date14 September 2020
Neutral Citation[2020] IEHC 383
Docket Number2020 No. 76 J.R.
CourtHigh Court
Date14 September 2020
BETWEEN
FRIENDS OF THE IRISH ENVIRONMENT CLG
APPLICANT
AND
MINISTER FOR COMMUNICATIONS CLIMATE ACTION AND THE ENVIRONMENT IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
SHANNON LNG LIMITED
NOTICE PARTY

[2020] IEHC 383

Garrett Simons

2020 No. 76 J.R.

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Garrett Simons delivered on 14 September 2020
INTRODUCTION 2
TRANS EUROPEAN ENERGY NETWORKS REGULATION 3
DELEGATION OF POWERS TO THE EUROPEAN COMMISSION 6
THE APPLICANT'S CLAIM AS PLEADED 9
PROCEDURAL HISTORY 10
ARTICLE 263 TFEU 13
DETAILED DISCUSSION 22
JURISDICTION OF NATIONAL COURT 22
SCHREMS V. DATA PROTECTION COMMISSIONER 28
IRELAND'S ROLE UNDER TEN-E REGULATION 32
AARHUS CONVENTION ON ACCESS TO ENVIRONMENTAL JUSTICE 35
CONCLUSION 38
INTRODUCTION
1

The applicant in these judicial review proceedings seeks to challenge the establishment by the European Commission, of a list of “projects of common interest” (as defined). The list purports to have been established pursuant to powers delegated to the European Commission under a basic legislative act, namely Regulation (EU) No 347/2013 on guidelines for trans-European energy infrastructure.

2

The applicant is an environmental non-governmental organisation (“ ENGO”). It is opposed to the inclusion, on the list of projects of common interest, of the proposed Shannon LNG terminal (and connecting pipeline). The applicant contends that the European Commission exceeded the limits of the powers delegated to it. In particular, it is contended that the European Commission failed to ensure that only those projects that fulfil the criteria prescribed under the basic legislative act were included on the list of projects of common interest. It is said that the European Commission itself has since accepted, in open correspondence, that the available data was not sufficient to allow consideration of the “sustainability” criteria in a meaningful manner.

3

The applicant acknowledges, as it must, that only the Court of Justice of the European Union has jurisdiction to invalidate the delegated regulation. A national court, such as the High Court, does not have jurisdiction to do so.

4

An action for annulment is normally brought before the General Court pursuant to Article 263 TFEU, with a right of appeal thereafter to the Court of Justice. The applicant did not pursue this route, saying that it would not be able to satisfy the standing ( locus standi) requirements. Instead, the applicant seeks to bring the matter before the Court of Justice by way of the reference procedure provided for under Article 267 TFEU. More specifically, the applicant is requesting the High Court to make a reference to the Court of Justice pursuant to Article 267 TFEU for a preliminary ruling on the validity of the delegated regulation.

TRANS EUROPEAN ENERGY NETWORKS REGULATION
5

It may assist the reader in better understanding the discussion of the jurisdictional issue which arises in these proceedings to pause now, and to provide a brief overview of the EU legislation at issue. The delegated regulation which the applicant seeks to have annulled has been made pursuant to Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure. This regulation is sometimes referred to as the “ Trans European Energy Networks Regulation” or the “ TEN-E Regulation”. The latter term will be used throughout the remainder of this judgment. The delegated regulation is entitled Commission Delegated Regulation (EU) 2020/389, and is dated 31 October 2019 (“ the delegated regulation”).

6

The TEN-E Regulation lays down rules for the timely development and interoperability of trans-European energy networks. This is intended to achieve the energy policy objectives of the Treaty on the Functioning of the European Union (“ TFEU”); to ensure the functioning of the internal energy market and security of supply in the Union; to promote energy efficiency and energy saving and the development of new and renewable forms of energy; and to promote the interconnection of energy networks.

7

The TEN-E Regulation addresses the identification of “projects of common interest” or “PCIs”. These are projects which are necessary to implement priority corridors and areas falling under the energy infrastructure categories in electricity, gas, oil, and carbon dioxide set out in Annex II of the Regulation.

8

The legal effects of a project being designated as a project of common interest include inter alia the following. First, the “most rapid treatment legally possible” is to be given to the permit granting process for projects of common interest. The timely implementation of projects of common interest is to be facilitated by streamlining, coordinating more closely, and accelerating permit granting processes; and by enhancing public participation. The Irish State has designated An Bord Pleanála as the national competent authority in this regard. See North East Pylon Pressure Campaign Ltd v. An Bord Pleanála [2019] IESC 8.

9

Secondly, a project of common interest has a particular status for the purposes of the Habitats Directive (Directive 92/43/EC). More specifically, such a project shall be considered as being of public interest from an energy policy perspective, and may be considered as being of overriding public interest, provided that all the conditions set out in the Habitats Directive are fulfilled.

10

Thirdly, projects of common interest are eligible for European Union financial assistance in the form of grants for studies and financial instruments.

11

The TEN-E Regulation has delegated the power to adopt and review the Union list of PCIs to the European Commission. This is provided for, in particular, at articles 3, 4 and 16. The TEN-E Regulation establishes twelve regional groups which are to adopt a regional list of proposed projects of common interest. Relevantly, the European Commission participates in the decision-making of the regional groups.

12

Article 3(4) of the TEN-E Regulation provides as follows.

4. The Commission shall be empowered to adopt delegated acts in accordance with Article 16 that establish the Union list of projects of common interest (‘Union list’), subject to the second paragraph of Article 172 of the TFEU. The Union list shall take the form of an annex to this Regulation.

In exercising its power, the Commission shall ensure that the Union list is established every two years, on the basis of the regional lists adopted by the decision-making bodies of the Groups as established in Annex 111.1(2), following the procedure set out in paragraph 3 of this Article.

The first Union list shall be adopted by 30 September 2013.

13

Article 3(5) of the TEN-E Regulation provides that the European Commission, when adopting the Union list on the basis of the regional lists, shall ensure inter alia that only those projects that fulfil the criteria referred to in article 4 are included. These criteria include “sustainability”. Sustainability shall be measured as the contribution of a project to reduce emissions, to support the back-up of renewable electricity generation or power-to-gas and biogas transportation, taking into account expected changes in climatic conditions.

14

It appears from the supplemental affidavit sworn on behalf of the State respondents by Mr Caoimhín Smith on 29 July 2020 that the initial draft ranking indicated that the cost/benefit ratio for the Shannon LNG terminal was not sufficient for it to be included on the draft list. However, following representations by the Irish State, the cost/benefit ratio of this project had been recomputed. See paragraphs 5 and 6 of the affidavit, as follows.

“5. Against this background, at the meeting of 28 June 2019 the European Commission presented an initial draft ranking list of projects, for further discussion within the meeting, which was based on the aforementioned methodology as validated by the Regional Group, as previously set out to the Court. The initial draft ranking presented for discussion at this meeting indicated that the cost-benefit ratio for the Shannon LNG project was not sufficient to be included on the draft list. At this meeting, Ireland's needs and the benefits of the Shannon LNG project in the context of these needs were re-iterated by Ireland's representative. Following this meeting, Ireland's representative at the meeting sent an email on 2 July 2020 ( sic) to the European Commission highlighting the important issues for Ireland in relation to peripherality and Brexit.

6. In advance of the meeting of the Technical Decision Making Body of 5 July 2019. an updated draft ranking list of projects was provided by the European Commission. This updated draft ranking resulted in updated cost-benefit ratios for a number of projects, including the

Shannon LNG project. In relation to Shannon LNG. the updated draft ranking document stated that ‘ The cost- benefit ratio of this project was recomputed taking into account also the isolation benefit, which was missing from the previous computation.’ I say that physical isolation benefits are provided for in the ‘Methodology for assessing the gas candidate PCI projects’ dated 27 June 2019, Exhibit CS1-3, at p. 188 of the paginated bundle of Exhibits (at benefit (g)). The updated ranking resulted in the Shannon LNG project and a number of other projects having cost-benefit ratios sufficient for inclusion on the draft list.”

15

The solicitor acting on behalf of the applicant, Mr Fred Logue, has made an objection, in an affidavit delivered on 7 September 2020, to the late disclosure of this information. Objection is also taken that the email cited (which presumably had been sent on 2 July 2019 and not 2020) has not been exhibited. Mr Logue states that it remains unclear on what basis the physical isolation criteria, which were...

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