Philip Lee and the Commission for Energy Regulation

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0017
• Decision Date: 19 April 2017
• Issuer: Commission for Energy Regulation
• Applied Rules: Art.3(1), European Communities (Access to Information on the Environment) Regulations, 2007

Philip Lee and the Commission for Energy Regulation

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0017

Published on 19 April 2017

1. Background
2. Scope of Review
3. Relevant AIE provisions
4. Analysis of the justification of the internal review decision
5. Decision
6. Appeal to the High Court

Background

The Single Electricity Market (SEM)

CER is the body responsible for regulating the natural gas and electricity markets in Ireland. Section 4 of the Electricity Regulation (Amendment) (Single Electricity Market) Act 2007 established a committee to be known as the Single Electricity Market (SEM) Committee. Section 9 provides that the SEM Committee, in carrying out its functions under the Act, shall have regard to the effect on the environment in the State and Northern Ireland of the activities of authorised persons, and the need, where appropriate, to promote the use of energy from renewable energy sources. The same section provides that the SEM Committee shall carry out the functions mentioned in subsection (1) in the manner which it considers is best calculated to secure a diverse, viable and environmentally sustainable long-term energy supply in the State and Northern Ireland.

CER's website says that "The SEM has encouraged new efficient generators into the market (in both Ireland and Northern Ireland), helping to put downward pressure on customer prices and providing security of supply and environmental benefits".

The SEM Committee says that "market power", in the electricity-supply context, "can be thought of as the ability to profitably sustain prices above competitive levels or restrict output/quality below competitive levels" and "the exercise of market power is therefore harmful to electricity customer interests and to other market participants". The SEM Committee identified the need for a "market power mitigation workstream" to deal with this aspect of the single electricity market. With this in mind, the SEM Committee published a consultation paper entitled "I-SEM Market Power Mitigation Consultation Paper SEM-15-094 in November 2015". (The letter "I" stands for "integrated".)

The AIE Request

On 25 January 2016, the appellants submitted an AIE request to CER, as follows:

"We hereby request a copy of the environmental information set out below in accordance with Regulation 6 of the AIE Regulations.

Environmental Information Request in respect of I-SEM Market Power Mitigation Consultation Paper SEM-15-094 (hereinafter "the Consultation Paper")

Please furnish the following:

(a) all publications in hardcopy or electronic form which form the basis of the CER and the SEM Committee's research in drafting the Consultation Paper and where such

publications are publicly available, details of where they may be accessed;

(b) all internal communications in the CER and the SEM Committee in respect of the

Consultation Paper to include but not limited to, all letters, e-mails, memos, agendas,

minutes, instructions, presentations, attendances, reports and/or directions in

hardcopy and/or electronic form, including drafts of all such records;

(c) confirmation of the names, qualifications and contact details of all third party

contributors and advisers to the CER and the SEM Committee in respect of the

Consultation Paper, including any working group, task force or liaison body, and including where any such contributions and advices were provided or procured on an informal, voluntary, and/or unsolicited basis;

(d) all external communications between the CER, the SEM Committee and third parties in relation to the Consultation Paper, or any draft of or proposal for the Consultation Paper, including any early iterations thereof, to include but not limited to all letters, emails, memos, agendas, minutes, instructions, advices, reports and/or directions or any other records in hardcopy and/or electronic form;

(e) all previous drafts of the Consultation Paper to include all marginal notes and

comments thereon;

(f) confirmation of the names, qualifications and contact details of all members of the SEM Committee to include all independent and deputy members together with details of the position held by each such member on the SEM Committee and where such details are publicly available, details of where they may be accessed.

In respect of (a) - (f) above, we request such information which relates to or includes details of the following:

(i) elements of the environment e.g. air, water, soil, land, landscape, biological diversity;

(ii) factors affecting or likely to affect the elements of the environment e.g. energy, noise, radiation, waste, other releases into the environment;

(iii) measures designed to protect elements of the environment e.g. policies, legislation, plans, programmes, environmental agreements;

(iv) information, reviews or references to the implementation of environmental

legislation;

(v) analyses and assumptions used within the framework of measures or within the

publications designed to protect the environment;

(vi) the state of human health and safety, the food chain, cultural sites and built

structures in as much as they may be affected by the elements of the environment.

Please note that the request at (a)- (f) are restricted to any records created, received, provided or obtained by the CER within the past 18 months i.e. from 1 July 2014 to the present day" [i.e. 25 January 2016].

CER acknowledged receipt of the request, but did not give notice of a decision within the timeframe required by the AIE Regulations. Therefore, a deemed refusal arose on 24 February 2016.

CER gave notice of a decision on 4 March 2016, refusing the request because:

1. "The requested information is not environmental information", and because

2. "CER does not hold any records that are environmental information and fall within the bounds of the request."

The appellants emailed CER on 22 March 2016, maintaining that CER's purported decision on 4 March 2016 was invalid because it was given too late and a deemed refusal had arisen. The appellants requested an internal review of the deemed refusal decision.

On 18 April 2016 CER gave notice of its internal review of the deemed refusal decision, refusing the request because:

"Information relating to the Market Power Mitigation workstream does not fall under the definition of environmental information contained within the AIE Regulations".

On 27 April 2016, the appellants appealed to my Office.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review CER's refusal decision and to annul, vary or affirm it. If I find that refusal was not justified for the reason given in that decision, my role is to decide whether it would be appropriate for me to require CER to make environmental information available to the appellants.

In conducting my review I took account of the submissions made by the appellants and CER. I also had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister's Guidance); Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and The Aarhus Convention -- An Implementation Guide (Second edition, June 2014).

Relevant AIE provisions

Article 3(1) provides that "environmental information" means any information in written, visual, aural, electronic or any other material form on:

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c).

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