Update from Pat Swords

Pat Swords

SWORDS -V- MINISTER FOR COMMUNICATIONS ENERGY AND NATURAL & ORS 2013/4122 P

“The case came up in for mention in front of the registrar today and the State requested extra time to evaluate new documents. It now goes back to the registrar for mention in June, which means it is unlikely that it will come in front of the Court until the autumn. In the meantime the UNECE Meeting of the Parties takes place at the end of June in the Netherlands, which is when the 45 Parties (countries) which have ratified the Convention come together every three years. As you can see from the below, there is a draft motion of non-compliance against the EU to be approved:

http://www.unece.org/fileadmin/DAM/env/pp/mop5/Documents/Category_I_documents/ECE.MP.PP.2014.L.16_aec.pdf

This has already been agreed by the Working Group of the Parties, so based on past experience these are adopted at the actual Meeting of the Parties. As this will be then a ruling in International Law, it has a knock on effect on Community Law, through an established concept of ‘mixed agreements’. In other words it carries the same weight effectively as a ruling in the European Court of Justice. So from a legal perspective, it is hoped that the Meeting of the Parties in late June will give additional clarity to the whole matters for the above case going forward.

Regards
Pat”

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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4 Responses to Update from Pat Swords

  1. Francis C says:

    Pat/Neil
    for the man in the street what effect would all of this have actually have?
    For example a local wind farm in Ireland – already built – will it loose subsidy, will it need new planning, will it be allowed to continue operating
    or
    is this more of an ethereal argument that will only change activity at a national government level?

    • Hi Francis
      That is really for Pat to answer as he has the Big Plan in his head.
      As I understand it, if the NREAP is declared invalid, it will be a political embarrassment rather than the removal of a legal requirement for Grid 25, which must stand on its own as regards legal requirements. However, I can understand how politically difficult (with public funds) it would be for the government and Eirgrid to press ahead if their master plan is in tatters.
      Let’s see what Pat says.

  2. Pat Swords says:

    Essentially from a legal perspective what is being sought is in the Order of the High Court of November 2012. Which is to halt the renewable programme until the NREAP, etc is subject to the proper forms of assessment and public participation, namely Article 7 of the Convention and the SEA Directive. If one spends the time to go into the UNECE website on the Convention, there is a recent report on public participation.

    http://www.unece.org/environmental-policy/treaties/public-participation/aarhus-convention/envpptfwg/envppppdm/ppdm-recs.html

    This is worth reading, especially the ‘zero option’ in relation to Article 6(4), which is engaged by Article 7. As the Compliance Committee are stating, the programme has to be assessed when all ‘options are open’. This engages the ‘zero option’; does the programme once assessed make any sense at all? To me it doesn’t, I have indicated why already, see previous post. When the law is complied with and these assessment steps followed, looking at the impacts on costs, landscape, human health, etc, plus the alleged benefit, it will be both interesting and revealing. It is also our right to see this completed properly and then participate on the resulting decision, not have this forced on us by diktat. So this is the objective.

    As regards installations already built, my case can’t go back and annul those, that was the judgement of the Court in April 2013, although there are other potential legal measures which could be utilised by others. However, my case is to stop the programme continuing until as such time it has been through the proper assessment and public participation. As I have indicated I have confidence in that once adhered to.

    • Thanks Pat. I am happy to hear that it will have the effect of halting the renewable programme, which again explains the Minister’s desperation to kick for touch as long and as often as he can. Best of luck.

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