Is EirGrid an illegal organisation?

I have written an article questioning whether EirGrid is an “illegal organisation”. The article is published in the Irish Law Times in three parts, with Part 1 to be found at pages 81-85 of Volume 32 (2014).

For those without access to the Irish Law Times, I will use this significantly less esteemed forum, my blog, to attempt to give a nutshell of the arguments presented in the article.

As a Member State of the EU, Ireland must accept large quantities of EU law into its own legal system. When it comes to EU Directives, this does not happen automatically, and the EU law has to be ‘transposed’ into Irish law – in other words, it must be ‘inserted’ into our legal system before it becomes law. This process is very complex and because it was practically impossible for the Oireachtas to examine each and every EU law trying to get into our law, the European Communities Act was passed which allowed the relevant Minister to introduce EU law through a Statutory Instrument. This has grave implications for the democratic process as it allows the Minister to introduce laws without the Oireachtas and that the average citizen does not even know about. Therefore, our Supreme Court laid down a very strict test, saying that this could only be done by a Minister if it was made ‘necessary’ by the Directive – in other words, if Ireland was legally obligated to adopt that particular law (as opposed to the Minister simply wanting to pass it).

Equally as importantly, once a Minister is satisfied that Ireland has to introduce a particular EU law into our legal system, he or she has to do it in such a way that it does not contravene our Constitution.

I have argued that Minister Mary O’Rourke was not obligated by the EU Directive to create EirGrid, and in fact the Directive seems to say that Eirgrid should not have been created, as the ESB was already fit for purpose. I have argued that the Minister created EirGrid for selfish political reasons, rather than for the good of the country. I have also argued that as the activities of a huge organisation like EirGrid fundamentally affect every citizen in this country, its creation should have been overseen by the Oireachtas, after intense public and political debate about, for example, a cost benefit analysis. Instead, the creation of EirGrid was carried out ‘under the radar’ and therefore was unnecessary, unconstitutional and illegal.

Finally, when looking at the powers granted to EirGrid, the applicable laws make it clear that EirGrid can only use these powers if it can be objectively proved that an upgrading of the grid is necessary in the first place. This has never been proved. The contention that we need an upgrade is merely a political opinion, fuelled by lobbying from the wind industry, which ignores many well-argued and conclusively proven studies to the contrary.

An example of such a study is the compelling argument by the Brown and White Report that a conversion of Moneypoint to biomass could fulfil all of Ireland’s renewable energy obligations at a tenth of the cost of the Government’s proposal.

Not only that, but this conversion of Moneypoint could fulfil our renewable energy quota without the need for an upgrade that this country cannot afford, it would create many Irish jobs, and it would avoid the consequent environmental vandalism that Minister Rabbitte seeks to perpetrate on our countryside by the building of extensive windfarms which in turn need lines of skyscraper-like pylons to carry the 400 KV cable that is strong enough to deal with the erratic nature of wind generated electricity.

See: http://www.rethinkpylons.org/library/BW%20Energy%20Report%202.pdf

Accordingly the article concludes with the argument that any use by EirGrid of their statutory powers would amount to an illegal, and actionable, act.

Whilst ostensibly dealing with the subject of electricity and energy policy in this country, this article seeks to raise fundamental questions about the state of our democracy. The Fine Gael / Labour government will conveniently point to the fact that EirGrid did not happen on its watch, it was in fact a creation of the Fianna Fail / Green coalition government under Bertie Ahern. That might be so, but this government has not sought to change this state of affairs, despite being in power for three years. Instead it has picked up the ball and run hard for the try line (apologies for the rugby metaphor but I’ve just watched Munster crush Toulouse), despite the clear objection of the vast majority of citizens in this country to this hare-brained scheme called an ‘energy policy’. It is this thinly-veiled contempt for the democratic system, as shown by this government, on which citizens can comment come election day on 23 May 2014.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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6 Responses to Is EirGrid an illegal organisation?

  1. See here http://www.dogwoodalliance.org/2014/04/biomass-conversion-is-the-wrong-direction-for-ireland/ as for why converting Moneypoint to biomass would be very bad news for North American forests.

    • Dear Almuth

      Firstly, let me congratulate you on your efforts to prevent unsustainable deforestation, and in turn those of Dogwood Alliance.

      However, you have made a number of questionable assumptions which need to be clarified. Essentially what you are arguing is that the biomass is not sustainably sourced. If you are aware of any timber/biomass companies engaging in such practices I would suggest that you immediately inform the United Nations Framework Convention on Climate Change. Upon receiving your complaint their staff will audit the biomass supply chain to decide if the biomass used is certificated as ‘carbon neutral’. If the biomass is not certified as such then the renewable power generators will not get the financial support associated with renewable power generation and would not proceed with such projects.

      It is in everyone’s interests that the supply chain is regulated and certified as ‘sustainable’ by the United Nations team.

      Or do you and the Dogwood Alliance mean that you don’t trust the UNFCCC to do the job and that you don’t have faith in the key global body that is pushing forward decarbonisation programmes? If that is the case, then you should simply say so, as that is another debate entirely.

      Converting Moneypoint to biomass is still the best option by far, and is not a threat to properly managed sustainable forests anywhere.

      • Auditing and certifying biomass has never been part of the UN’s, including UNFCCC’s remit. All forestry certifications are voluntary and they don’t look at carbon emissions from bioenergy either. That’s just one of the problems with the idea that biomass can be made/guaranteed to be sustainable through standards – for others see http://www.biofuelwatch.org.uk/2014/biomass-sustainability-standards-briefing/ . And there’s the basic question of how burning 7.2 million tonnes of wood a year in a country producing around 2.65 million tonnes annually can possibly be classed as sustainable.

  2. OK, I am talking as a lawyer here, rather than an energy specialist, as the article was a law article, but this interests me nevertheless. What about other forms of biomass like rape seed, hemp and elephant grass? Obviously from an Irish point of view this is important as it could provide local jobs, something wind farms cannot provide.

    • Here are the documents we obtained about Drax in the UK: http://biofuelwatch.org.uk/docs/DECC%20FoI%20EIR%2013-0340%20Q1%20Documents%20Drax%20etc%209May%202013.pdf . They show that Drax found that biomass other than pellets from slow-growing trees with little bark is too high in alkali salts and corrodes the boilers. This would appear to apply to all power stations of this type, i.e. subcritical pulverised coal power stations – such as Moneypoint.

      • Thank you, those are very interesting. What is your attitude to wind turbines and pylons crisscrossing the Irish countryside? This is still the critical question, and everything else is a lesser evil. Unless we can avoid that, any supposed solution is not a solution at all.

        It would seem to me that the issue here is quite straightforward:

        1) The UN certifies whether a biomass crop is sustainable or not. Not Dogwood Alliance or any other group for that matter.
        2) There is more than sufficient supply of certified sustainable biomass available in N. America to meet the needs of biomass power generators (including Moneypoint).
        3) Ireland has simply not researched its own biomass domestic supply chain in sufficient detail to come to the conclusion to answer the question ‘What proportion of supply for Moneypoint could be met domestically from Irish sources?’
        4) Dogwood Alliance should make its case to the UN.
        5) If the UN changes its mind about the sustainability or otherwise of the biomass supply chain such that it means that the Moneypoint biomass solution is no longer a cost effective, legal method of meeting Ireland’s targets, I will revise my message accordingly.

        If the simple fact of the matter is that Dogwood Alliance don’t agree with the UN decarbonisation framework and associated regulations, then you must come out and have the honesty to admit that is the issue rather than trying to denigrate a constructive, cost effective solution that adheres to international decarbonisation regulations AND prevents our beautiful Irish countryside from being ruined by wind turbines and pylons, AND prevents the electric cables on those pylons, which are a danger to the health and safety of our people, especially the children.

        My favourite place to be is in a forest, so as I said previously, I admire your work to prevent deforestation. However, I don’t think you are picking the fight with the right person, as I am trying to protect my countryside and my family and friends from the blight of wind turbines and pylons. Your fight is with the UN, not with the Irish people.

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