Have We Been Sold A Pup?

    Swords -v- Minister for Communications Energy and Natural Resources & ors 2013/4122 P – 6th May 2014

During the 27 or so years I have been in the legal profession, when I wasn’t practising law, I was teaching it. One of the things my students might remember me for was my mantra, usually at the beginning of a lecture: “Accept nothing, challenge everything”. This was more than an endorsement of my personal affection for nihilism, it was an important life lesson for everybody, not just law students: The importance of satisfying yourself that you have properly considered something that might profoundly affect you. Perhaps more importantly, if you were not satisfied after that full consideration, do something about it.

I first came across the name Pat Swords when I read the interim judgment in his case where he was seeking to have the National Renewable Energy Action Plan annulled. If you have ever read the NREAP you would wonder why it was necessary for Pat to take it to court as it is palpable nonsense, written for the gullible voter. Mr Swords argues, as we have all been arguing for a long time now, that the State has shown bias in favour of wind energy over other forms of renewable technology and, furthermore, that the State has breached European law by adopting plans without considering the views of the public.

Essentially Mr. Swords is relying on the terms of the Aarhus Convention which enshrines public participation in decision making when all options are open rather than presenting a fait accompli to the public where they have no real input. His argument is that proper consultation of the NEAP was not carried out. He has already obtained a ruling from the UN’s Aarhus Compliance Committee that Ireland had failed to give its residents a proper say in the National Renewable Energy Action Plan (NREAP). They determined that there was insufficient information to inform a reasoned decision and insufficient time given to deliberate and protest if necessary. He brought this ruling to the High Court, and despite the Minister, Mr Rabbitte, using every delaying tactic available to him, the matter will be heard on 6th May 2014.

The State disputed Mr Sword’s claims arguing that the Aarhus Convention doesn’t apply as it had not been ratified at the time the NREAP was accepted by the European Commission in 2010. This was rejected by the Court on the basis that while Ireland did not ratify the Aarhus Convention until 2012, the European Union had ratified it in 2005, thus binding the Member States. The Convention has now been ratified by Ireland, somewhat grudgingly, as is apparent if one reads the SI’s subsequently issued by the Minister, ostensibly implementing the Convention in this country, as they are not worth the paper they are written on. Thankfully, one does not need them as it is possible to go directly to the source, as Mr Swords has done.

Again, the truth of these arguments is so clearly obvious that it seems remarkable that the judge did not throw out the Minister’s pathetic bleatings and grant for the plaintiff there and then. Instead, the State is now arguing that the matter is so complex that they will need ten days for argument!

Anybody who has litigated knows that when your case stinks you do one of two things. If you have any honour, you settle quickly as a damage limitation exercise. If you are dishonourable (and have a large budget) you kick for touch, stretch out proceedings to the absolute limit, and attempt to starve your opponent into quitting. This is the option that Minister Rabbitte has chosen.

For those of you in the vicinity of the Four Courts on 6th May 2014, go in and have a listen. The issues are relatively straightforward, but the implications for this country are huge.

I have reproduced Pat’s most recent e-mail below. It is a fascinating read. I don’t necessarily agree with some of it, but that is the point. The underlying message has my full support: “Accept nothing, challenge everything”.

“The whole aspect of biomass in Power Stations was part of the Energy Policy Framework 2007 to 2020, which started all this renewable madness moving. You can read about it in Section 3.4.8 of the document itself below – it just got dropped in the NREAP, where 90% of the renewable MWs to be installed were to be wind energy:

Click to access EnergyWhitePaper12March2007.pdf

The SEAI annual energy reports [1] demonstrate that more energy is consumed in residential homes than in the generation of electricity. Indeed in Ireland the thermal (heating) use of energy is 179% of the energy used in generating and transmitting electricity. While the NREAP contained a national 40% target for electricity from renewable sources, it only contained a target of 12% for renewable heat by 2020. Clearly the application of renewable energy was not evenly applied to the available sectors.
[1] http://www.seai.ie/Publications/Statistics_Publications/Energy_in_Ireland/Energy-in-Ireland-Key-Statistics-2013.pdf
It’s obvious that there are a huge number of options out there which need to be looked at, but haven’t been properly addressed. So the question which has to be asked is why? The answer to that is our culture and our behaviour, which was once again glaringly obvious and sadly dominating on the PrimeTime programme last Tuesday after the march. We are obsessed with whatever dream / dream salesman comes along and do not examine the detail. As the Finnish economist who investigated our banking crash concluded about us and why it happened: “Groupthink occurs when people adapt to the beliefs and views of others without real intellectual conviction. A consensus forms without serious consideration of consequences or alternatives, often under overt or imaginary social pressure. Recent studies indicate that tendencies to groupthink may be stronger and more common than previously thought”.
So if we behave like sheep, is it really surprising the wolves move it. Let’s get real here, do Tim Cowhig or Eddie O’Connor care two hoots about the global warming gig, do all the semi-state companies and State organisations lining up to get a slice of that action care either? 20% of Europe’s energy supply, now taken out of the normal checks and balances of the market economy and handed over to the politicians’ friends, is worth well in excess of a hundred billion Euros a year. These guys are going to keep at it for as long as they can and the more people that wallow in the Groupthink that the planet is doomed and only renewables will save it, the bigger the slice of the action they will get.
So let’s get real here and start dealing the the facts, the facts the boys above don’t want you bringing to bear on the subject matter, although one could also add the facts that many Irish people don’t want to address either, as they would have to first deal with ‘overt or imaginary social pressure’, which is not what we handle at all, at all.
• In 2011 the global emissions of carbon dioxide from fossil fuel combustion were 31,600 million tonnes. Ireland’s carbon emissions are just under 60 million tonnes per annum, while that from electricity generation are barely 10 million tonnes per annum. So even if we did achieve 40% renewables and we induced no inefficiencies on the grid, which is what SEAI lie about, we would only save 0.01% of what is happening anyhow (it’s simple maths). So in other words, what if you started educating some hopefully thinking Irish people (the next generation?), would they not come to the conclusion that spending €20 billion plus on turbines, pylons, smart meters, new fast response power stations, etc, not to mention wrecking our landscape, the health of rural dwellers, our economy and our reliability of electricity supply is very stupid when it actually doesn’t matter a shite whether we do it or not??
• The next ‘great leap forward’ is realising that not all of the world thinks like we do, or more to the point how we are massaged to think. It didn’t surprise me when working in China in November 2011, during the period when the last big Climate Change gig was on in Durban, that the Chinese position was that they would not enter any agreements until 2020 at the least. They also had five major pre-conditions, the first being a full review of the climate change science by 2015 at the latest. Not surprising, as I was well aware that the Chinese Academy of Science had been calling the ‘kettle black’ on this for quite some time and they weren’t the only ones. For instance it is in English if you want to read it: http://scienceandpublicpolicy.org/images/stories/papers/reprint/human_induced.pdf . Naturally at the same time Frank McDonald in the Irish Times was reporting from Durban that the Chinese were going to enter an agreement by 2015, but that is what the Irish public should have been told.
• So as many thinking people realise, it ain’t going to matter a shite one way or another, for large parts of the World it is going to be business as usual. As a group of Arabs I was working with in Saudi in 2010 stated with regard to the obvious, this climate change mantra has absolutely no relevance to the conditions in the developing world – they are right, absolutely no relevance. So let’s put the RTE world aside, there really are very few people, if any, in that part of the world who have devolved their analysis and decision making to Mary Robinson.
• Unfortunately Politics in some Western Countries are out of control. As Richard Tol put it correctly in 2009 publication on the “Economic Effects of Climate Change”[1] which stated:
• “Projections of future emissions and future climate change have become less severe over time – even though the public discourse has become shriller”.
• “The quantity and intensity of the research effort on the economic effects of climate change seems incommensurate with the perceived size of the climate problem, the expected costs of the solution, and the size of the existing research gaps. Politicians are proposing to spend hundreds of billions of dollars on greenhouse gas emission reduction, and at present, economists cannot say with confidence whether this investment is too much or too little”.
In a similar article by Prof Tol, “The Social Cost of Carbon: Trends, Outliers and Catastrophes”[2], his conclusion on the external cost was about $20 per ton of carbon, which equates to $5.5 per tonne of CO2. Yet all of this is based on the premise that the UN’s Intergovernmental Panel on Climate Change (IPCC) has accurate estimates on future climate trends.
[1] Journal of Economic Perspectives – Volume 23, Number 2, Spring 2009, Pages 29-51
[2] http://www.economics-ejournal.org/economics/journalarticles/2008-25
So what are we going to get out of our 40% renewable target? When all the inefficiencies on our power stations are factored in, we’d be lucky to get 2 million tonnes of CO2 savings, which if the models were correct would be about €8 million per annum in avoided environmental damage. Note: The turbines would be shot in fifteen years. However, as sensible people keep on pointing out, not least the Chinese and those which do proper engineering analysis for a living, the models are deeply flawed and there has been no increase in global temperatures for over 16 years, so that €8 million per annum in environmental benefit is an overestimation. In fact since the EU started this renewable gig in 1998, global temperatures have been static, so has it made a jot of difference – the answer is no!
Yet we wallow in hype, just as we did with the weapons of mass destruction in Iraq, the dot.com bubble, the property bubble, etc, and each time we are so immersed in it, we cannot step back and evaluate calmly and sensibly. If you don’t believe me, it has become like robbing sweeties from toddlers. Under REFIT II we are now having to compulsory fund an additional 4,000 MW of renewables, nearly all wind. This represents capital investment of the order of €8 billion, none of which we require to keep our electricity network functioning and is justified on the environmental objective of… Read the documents dated 13.03.2012, in particular the first two:
No such environmental information exists, it is all built on the illusion that somehow life, Ireland, the planet, etc, will be wonderful if a certain percentage of electrons on our grid are classified as being from renewable sources. It goes without saying that as long as people pander to that agenda, the wolves, and they are many, will do as wolves do. So please, let’s get real and stop making it easy for them. Force them to account for the environmental benefit, which is being used to given them a ‘blank cheque’. As any honest engineer will tell you, the sources of renewable energy are niche areas which don’t amount to much unless you have lots of deserted mountains and loads of precipitation. Time to call a spade a spade and not wallowing in the delusion that it is a JCB. What exactly are we being forced to fund with huge sums of money and our natural environment?
The emperor has actually no clothes, but it is our pandering to groupthink and not forcing the agenda to make them quantify the so called benefits, that has allowed them to get away with robbing us blind.

Good luck on the 6th May, Pat. The Irish people should be thankful that there are still those who ask the difficult questions, instead of just changing channels when the dialogue gets too challenging.

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 full-time practice in 2002 to take up a 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). His current interest is 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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8 Responses to Have We Been Sold A Pup?

  1. Pingback: Have We Been Sold A Pup? | Law for Social Care Students at WIT

  2. cawtdonegal says:

    Can you post link to IEHC “interim judgment in his case” that you mention in para [2], thanks.

    • Neil van Dokkum says:

      I’m sorry, but it does not seem to be in any of the databases nor on the HC site or the Court Services – spooky! – the details that I have are as follows:
      Swords v Department of Communications, Energy and Natural Resources (HC) Peart J., 12/11/12.

    • Neil van Dokkum says:

      I’m sorry, but there was a ‘conspiracy of silence’ on this case. It does not appear on the legal databases, nor on the Courts Service, nor on the High Court site. The details I have are as follows:
      Swords v Department of Communications, Energy and Natural Resources ( HC) Peart J., 12/11/12.

  3. Pat Swords says:

    Two quick points:
    The 6th May will only be lawyers meeting in front of the Judge / Registrar to hammer out a later date for hearing on the substantive matter. So people should hold off attending until the later date is known.

    In relation to Ireland’s thermal energy usage commented on above, it is 178% of the energy used in electricity transformation and transmission, but to be more correct; the fuel input in Ireland for thermal use and for electricity generation is actually nearly identical. However, the main point remains valid, why did one get a 40% target and the other a 12% target, especially as low grade heating requirements are much more suitable to the eleven sources of renewables, many of which, such as aerothermal and geothermal, are much better for this duty.

    • Neil van Dokkum says:

      Thanks Pat. I wish you strength on the 6th with all those lawyers milling about! Let us know asap what was decided on the 6th re. dates.

  4. Pingback: It’s called Aarhus, arsehole! | The Law is my Oyster

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