Friends of the Irish Environment v Minister for Communications (Shannon LNG terminal)

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date30 March 2021
Neutral Citation[2021] IEHC 177
Docket Number2020 No. 76 J.R.
Year2021
CourtHigh Court
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

[2021] IEHC 177

Garrett Simons

2020 No. 76 J.R.

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Garrett Simons delivered on 30 March 2021
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). More specifically, the applicant challenges the inclusion, on the list, of the proposed Shannon LNG terminal (and connecting pipeline).

2

The list of projects of common interest has 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. 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 list of projects of common interest will be referred to as “ the EU list of projects” or “ the delegated regulation” where convenient.

3

The primary line of argument advanced in support of the legal challenge is to the effect 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.

4

The applicant also advances a secondary line of argument to the effect that the failure of the Irish State to “veto” the inclusion of the Shannon LNG terminal on the EU list of projects represents a breach of the State's obligations under the Climate Action and Low Carbon Development Act 2015. This court is invited to make a reference to the Court of Justice of the European Union for a preliminary ruling on the implications of that alleged breach of domestic law for the validity of the list of projects of common interest. (This is the second attempt by the applicant to suggest that a reference should be made).

5

The primary line of argument has already been addressed in a detailed judgment delivered on 14 September 2020, Friends of the Irish Environment v. Minister for Communications Climate Action and the Environment [2020] IEHC 383 (“ the principal judgment”). For the reasons set out therein, I concluded that the only justiciable issue in controversy in these proceedings is the validity of the delegated regulation made by the European Commission, and that a national court does not have jurisdiction to determine this controversy.

6

This present judgment now addresses the secondary line of argument advanced by the applicant.

7

The precise procedure, by which the list of projects of common interest came to be drawn up, has been set out in detail in the principal judgment and will not be repeated here. Instead, this judgment should be read in conjunction with the principal judgment.

PROCEDURAL HISTORY
8

The substantive hearing in these judicial review proceedings took place over four days towards the end of June and the start of July 2020. In circumstances where the applicant was inviting this court to make a reference to the Court of Justice for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union (“ TFEU”), this court suggested that the question of whether a reference was appropriate should be addressed first and a judgment delivered on that issue. The parties agreed to this suggestion, but the respondents were careful to flag that there was not necessarily a clear-cut distinction between the EU law grounds and the domestic law grounds.

9

The balance of the issues in the case were to be deferred for consideration at a second hearing, following the delivery of a judgment by this court on the question of whether or not to make an Article 267 reference. It was agreed that, in the event of this court reaching a decision in principle that a reference to the Court of Justice was appropriate, the parties would then be afforded an opportunity to make submissions on the precise form of the reference.

10

The principal judgment was delivered on 14 September 2020. For the reasons set out therein, this court concluded that it did not have jurisdiction to make a reference to the Court of Justice in the particular circumstances of this case. The parties were then invited to identify an agreed hearing date for the consideration of the balance of the issues in the proceedings.

11

To this end, the parties engaged in correspondence with each other. The applicant's solicitors indicated, in open correspondence, that it would serve no purpose for the remaining issues to be litigated, given that the court has found that the actions of the Irish State cannot be viewed in isolation and are incapable of being challenged independently of the European Union measure.

12

Thereafter, in submissions made to the court on 28 October 2020, counsel for the applicant, Mr. James Devlin, SC, confirmed that his client wished to pursue an appeal against the findings in the principal judgment, and suggested that any hearing by the High Court of the other issues in the proceedings should be adjourned generally to await the outcome of such an appeal.

13

The respondents disagreed with this suggested approach and submitted, in effect, that the applicant should be put to its election, i.e. it should either pursue the remaining grounds at a second hearing, or withdraw that aspect of its case. It was further submitted that the alternative course, i.e. an appeal against the principal judgment, followed by a hearing thereafter by the High Court in respect of the remaining grounds, would cause unnecessary delay in the ultimate resolution of the proceedings. The full case should instead be heard and determined at the High Court level prior to any appeal. The appellate court would then have seisin of all issues in the proceedings.

14

Having carefully considered the submissions of both sides, I ruled that it would be more satisfactory were all remaining issues to be heard and determined at the High Court level, in advance of the intended appeal. This seemed to me to be more consistent with the approach flagged in the principal judgment. It should also ensure a more expeditious determination of the overall proceedings: the postponement of any consideration of the domestic law issues until after an appeal would simply have prolonged the case unnecessarily.

15

The parties had agreed that the conclusion of the case before the High Court would only require a short hearing (less than 2 hours), and thus a postponement would not have had any material benefit in terms of saving costs. For the reasons set out in my judgment on an earlier adjournment application in this case ( [2020] IEHC 159), the High Court must have regard to its obligation to ensure that proceedings which have been admitted to the High Court's Strategic Infrastructure Development List are determined as expeditiously as possible consistent with the administration of justice.

16

The parties exchanged a further round of written submissions, and a hearing was held on 22 January 2021. During the course of that hearing, the following issue of domestic law came into focus: do the obligations under section 15 of the Climate Action and Low Carbon Development Act 2015 apply to the Government when it is exercising the executive power of the Irish State under Articles 28 and 29 of the Constitution of Ireland. At the conclusion of the hearing, the parties were given liberty to file supplemental written submissions addressing this issue. Three sets of submissions were filed, on 6 February; 5 March and 19 March 2021, respectively. The case was listed before me on 26 March 2021 on which occasion the parties both confirmed that they did not require the oral hearing to be reopened. Judgment was then reserved to today's date.

SUMMARY OF THE APPLICANT'S SECONDARY ARGUMENT
17

The applicant's case under the Climate Action and Low Carbon Development Act 2015 can be summarised as follows. The Irish State has a form of “veto” over the inclusion on the EU list of projects of any project which is located within its territory. This veto arises under Article 172 of the TFEU and is reflected under article 3(3)(a) of the TEN-E Regulation. The Irish State made a “decision” not to exercise this veto in the case of the Shannon LNG terminal. Indeed, it is said that, far from opposing its inclusion, the Irish State made a successful representation on 2 July 2019 to have the Shannon LNG terminal added to the list in circumstances where it had been excluded from the initial draft list.

18

The decision not to veto the inclusion of the project is said to have been reached in breach of the requirements of the Climate Action and Low Carbon Development Act 2015. More specifically, it is alleged that the Irish State, as a “relevant body”, failed to have regard to a mandatory statutory consideration. Section 15 of the Act imposes an obligation on a “relevant body” to have regard to the furtherance of “the national transition objective” in the performance of its functions. The “national transitional objective” is defined earlier in the Act as the transition to a low carbon, climate resilient and environmentally sustainable economy by the end of the year 2050.

19

For the reasons explained under the next heading, this line of argument cannot succeed as it is inconsistent with the findings already reached by this court in its principal judgment to the effect that a national court does not have jurisdiction to entertain a collateral challenge to the validity of the delegated regulation adopting the...

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