THE BIRTH (AND LIFE) OF EIRGRID: IN VITRO, ULTRA VIRES AND MALA FIDES? — PART III THE POWERS GIVEN TO EIRGRID
Irish Law Times 2014, 32, 110-114  is now published.

In this final instalment, this piece seeks to examine the status of EirGrid, the current Transmission System Operator.

Part One discussed the complex and vexed subject of the difficulties encountered in transposing EU law into our own domestic system by means of the European Communities Act, particularly where that new law seeks to amend an established national policy determined after the full rigours of the domestic legislative process.

The conclusion reached in Part One was that even where the introduction of EU law was necessitated, or legally obliged, by Ireland’s membership of the EU, now that the legislation is ‘domestic’ legislation, it still needs to pass constitutional muster. Where that legislation, or the means used to transpose it, seems to contravene the Constitution, the Minister seeking to implement that law needs to show that there was no constitutionally sound alternative to achieve the same effect. As the Minister clearly did not bother to consider using the usual route whereby a Bill finally becomes an Act, the conclusion reached was that the Regulations passed by the Minister that created EirGrid were unconstitutional.

In Part Two, there was an examination of this ‘special-status subordinate legislation’ which, amongst other things, was used to create EirGrid. It concluded that it is difficult to find anything in the two EU ‘Electricity Directives’ which necessitated (in the strict Crotty sense) that Ireland create a separate juristic body as the Transmission System Operator and thereafter grant it a perpetual licence. Indeed, these measures seemed to run counter to the policies of the second Directive in question. It further argued that as these developments seemed to be a clear change in direction from the previous legislative policy set out by the Oireachtas, these changes could only be legislated for by the Oireachtas if they were not to contravene Article 29.4.10 read with Article 15.

In this final part, the statutory powers granted to Eirgrid by the Minister in the Regulations will be critically examined, with a view to deciding whether EirGrid have the necessary powers to erect pylons, and hang swathes of electric cable on those pylons, across the length and breadth of the land.

EirGrid are given the power ‘to develop‘ power lines. The argument put forward is that this means EirGrid can develop existing power lines, but cannot build new ones where lines did not exist before, particularly where the building of those new lines infringe on the constitutional rights of Irish citizens.

Another phrase that is closely examined is  ‘if necessary’.
In the context of the sentence in which it appears, it would seem that the development of the system must be necessary to ensure ‘a safe, secure, reliable, economical and efficient electricity transmission system’.

The argument is therefore put forward that unless EirGrid can prove (as opposed to assert) that the existing system is unsafe, unsecure, unreliable, uneconomical and inefficient, they are not allowed to exercise their powers.

In addition, how can Grid 25 be ‘necessary’ when Ireland is using consistently less electricity every year since we hit our peak in 2009?

The article concludes that the Grid 25 project is in fact contradicting everything that EirGrid is empowered to do – it is turning the national grid into an unsafe, unsecure, unreliable, uneconomical and inefficient system, because of the over-reliance on erratic wind power; with the clear objective of lining the pockets of a few, at considerable cost to many.