February 14th, 2020
The High Court yesterday granted leave to an environmental group to challenge the decision of the State and the European Commission to put forward the proposed Shannon LNG gas terminal for the EU’s list of priority energy projects.
Friends of the Irish Environment [FIE] alleges that both Ireland and the EU failed to carry out independent sustainability, climate and cost-benefit analysis of the terminal before putting it forward for the fourth Project of Common Interest (PCI) list as is required under EU law.
Inclusion on the list – that includes over 50 new fossil fuel projects – gives large-scale energy projects access to a streamlined planning and permitting process, as well as making them eligible for access to multi-billion euro funding.
At a meeting of the Parliament’s Energy Committee (ITRE) last October, the Deputy Director of the Commission’s energy department admitted that the climate and sustainability review of proposed projects was not carried out for any of the projects nominated for the four PCI lists to date.
Shannon LNG – one of the liquefied natural gas terminal and pipeline projects on the list – faces strong criticism from scientists, activists and even Hollywood star Mark Ruffalo over the high likelihood that the project will see fracked US gas imported to Ireland despite a national ban on the practise here.
FIE’s action includes the Minister for Climate Action and the Attorney General as FIE alleges that the State failed to assess the project before approving its inclusion on the PCI list, including having regard to the Climate Change Act 2015.
FIE is also seeking a declaration that Ireland is in breach of its EU obligations to allow for proper public consultation in the environmental decision making process.
Mr Justice Dennis McDonald yesterday said that the case was well made and in time, praising the clarity of the pleadings. He ordered that the European Commission be notified as a courtesy, although they are not Notice Parties to the proceedings.
Tony Lowes, a director of FIE, said that the decision to put Shannon LNG forward for inclusion on the list without the necessary assessment and consultations “breached citizens natural and constitution rights”.
“Because the European Court of Justice (ECJ) does not accept challenges directly from European citizens this novel case seeks to establish national NGO rights to directly challenge decisions of the European Commission before the ECJ via the national courts,” he added.
Busy week in PCI world
It has been a busy week around the PCI process, with the European Parliament voting down a motion at its plenary session on Wednesday that sought to veto the list over concerns that it is incompatible with the bloc’s climate ambitions.
The vote raised an eyebrow here at home as Fine Gael MEP Maria Walsh broke party lines and voted with her “conscience” in favour of the motion over her concerns with fracking.
In a move that may have significant implications for FIE’s new case, the EU Ombudsman Emily O’Reilly opened an official inquiry this week into the failure of the Commission to consider the climate impacts of projects on the PCI list.
The inquiry was opened after the Ombudsman received an official complaint last October from Andy Gheorghiu, a policy advisor with Food & Water Europe, an environmental NGO based in Brussels. In his complaint, Mr Gheorghiu argued that the latest PCI list is non-compliant with both EU Law and the Paris Agreement.
Mr Gheorghiu has previously written to the Commission outlining his concerns and was informed that it has started work to improve procedures to carry out a sustainability assessment for the next PCI list that is updated every two years.
Writing to President Ursula von der Leyen on Monday, Ms O’Reilly said that Commission’s reply to Mr Gheorghiu “can be understood as an admission that there were shortcomings in relation to past sustainability assessments of PCI status”.
“I have therefore decided to open an inquiry into this complaint to examine if and how the Commission has sought to ensure that sustainability was assessed for gas projects, as well as for oil projects, obtaining PCI status,” Ms O’Reilly added. The Commission has until the end of March to reply to specific sustainability questions raised by the Ombudsman.
While welcoming Ms O’Reilly’s decision to follow up on the complaint, Mr Gheorghiu said that he is not satisfied with the timing of the announcement of the inquiry just two days before the Parliament’s vote on the PCI list.
“Knowing about the Ombudsman’s decision to open up an inquiry into whether or not the PCI list is non-compliant with EU Law and the climate targets would have influenced the decision of many MEPs to reject this list and return it to sender for review,” he added.
Shannon LNG history
The project has been on hiatus for the past decade since planning permission was first granted in March 2008. A five-year extension was granted last year to allow a reasonable period for the completion of the project according to An Bord Pleanála.
This decision was challenged by FIE and was referred by Mr Justice Garrett Simons to the ECJ in February 2019. An opinion from the Advocate General is expected in late April 2020.
While FIE’s primary challenge related to the legality of the planning extension, activists groups in Ireland, Europe and the US have raised concern over the proposed terminals links to the US fracking industry.
A recent filing to the Securities and Exchange Commission (SEC) by New Fortress Energy, the US owner of Shannon LNG, shows that it receives gas from hydraulic fracturing – more commonly known as fracking. New Fortress also plans to build gas facilities in an area of Pennsylvania where the practice of fracking is widespread.