The Great EIS Swindle

three card trick-EirGrid

An environmental impact statement (EIS) should be carried out in such a way that it is a useful tool for decision-making on planning applications. It should accurately and fairly describe the positive and negative environmental effects of a proposed project, and it should list one or more alternative actions that may be chosen instead of the action described in the EIS, where the original action is deemed too harmful to the environment.

In other words, the true purpose of the EIS is to promote informed decision-making. Firstly, by the planning authority, whether that is a Council or An Bord Pleanala, who should have before them detailed information concerning significant environmental impacts. Secondly, but equally importantly, the EIS should also be available to the public, who have an interest in preserving the sanctity of the environment.

Another important function of the EIS is that it acts as an enforcement mechanism to ensure that state agencies adhere to the goals and policies outlined in the Development Plan of that particular County.

Finally, an EIS should use an interdisciplinary approach so that it accurately assesses both the physical and social impacts of the proposed development. This is often conveniently “forgotten” by applicants with the result that local residents might not be aware of the impact such a development will have on their lives until it is too late. This is particularly true of wind farm developers who are notoriously shy when it comes to describing the effects of flicker and noise on residents living more than a mile away, which devastating effects make a mockery of the existing clearance distances or “setback” as it is known (in the counties that have any at all).

Clearly an EIS is an extremely important component of any planning application and is essential to secure the underlying policy implications of our planning system, namely the protection of the environment and the communities inhabiting that environment.

.
The EIS in EU Law

The original EIA Directive (85/337/EEC) applied to a wide range of defined public and private projects. The EIA Directive of 1985 has been amended three times, in 1997, in 2003 and in 2009, with each amendment widening the scope of the Directive.

The Directive of 1997 widened the scope of the EIA Directive by increasing the types of projects covered, and the number of projects requiring mandatory environmental impact assessment (Annex I). It also provided for new screening arrangements, including new screening criteria (at Annex III) for Annex II projects, and established minimum information requirements. Directive 2003/35/EC sought to align the its provisions on public participation with those of the Aarhus Convention, making it clear that the EIS was an important part of the public consultation process. Directive 2009/31/EC amended the Annexes I and II of the EIA Directive, by adding projects related to the transport, capture and storage of carbon dioxide.

The initial Directive of 1985 and its three amendments were codified by Directive 2011/92/EU of 13 December 2011. Directive 2011/92/EU was in turn amended in 2014 by Directive 2014/52/EU.

This Directive has three Annexures, I, II and III.

It is mandatory for an applicant to provide an EIS for all projects listed in Annexure I as these types of projects have a significant impact on the environment.

However, for projects listed in Annexure II, the national authorities are given the discretion to choose whether an EIS is needed. This is done by the “screening procedure”, where the national authorities must take into account the criteria laid down in Annex III. In this regard, Article 4(2) of the Directive says that for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an EIS through either a case-by-case examination; or according to thresholds or criteria set by the Member State.

Annex I (mandatory EIS) includes the construction of overhead power lines:

“Construction of overhead electrical power lines with a voltage of 220 kilovolts or more and a length of more than 15 kilometres”.

The word “and” in that sentence means that only lines of more than 220kV which are also longer than 15 kilometres will be subject to an EIS. Therefore on this criterion it could be argued that even a 400 kV line of 10km is not subject to an EIS.

Annex II (discretionary EIS) includes the ‘Transmission of electrical energy by overhead cables (projects not included in Annex I), which means that the State will decide whether an EIS is needed for power lines less than 220kV and less than 15km in length.

 

The Irish Planning Regulations and Grid 25

What does this mean for Grid 25 which has high power lines (220 or 400 kV), but also uses lesser lines (either shorter than 15km and/or less than 220kV) to connect the multitude of wind farms to the national grid?

The Grid 25 element is the high voltage system, where high voltage is normally 400 kV, 220 kV and 110 kV. The 110kV lines will not automatically require an EIS. In addition, while Grid 25 has nearly 1000 km of 400 and 220 kV lines (assuming that it cannot break these up into sections that are less than 15km), there is more than 5000 km of new medium voltage lines used to connect all these new wind farms to the high voltage grid. These range from 10 kV to 38 kV and are usually carried on a wooden structure of two vertical poles with one horizontal pole on the top or alternatively ‘small’ steel pylons. These are not covered by Annexure 1 and therefore there is no mandatory requirement for an EIS.

But hang on, you say. Annexure 1 does not cover them, but it is still possible for the Irish Government to cover that 5000 km of power lines under Annexure 2, thereby making it compulsory to have an EIS accompanying your planning application.

And here comes the swindle:
In the threshold set in the Irish Environmental Impact Assessment Regulations (part 2 of schedule 5), for Annex II projects, the Irish criterion is as follows:

“(b) Industrial installations for carrying gas, steam and hot water with a potential heat output of 300 megawatts or more, or transmission of electrical energy by overhead cables not included in Part 1 of this Schedule, where the voltage would be 200 kilovolts or more.”

See what they did there? Annexure 1 covers lines of over 220kV, whilst Annexure 2 covers lines of over 200kV. In other words, the difference is only 20kV, and who has heard of a 200kV line anyway? Effectively, there is no difference between the minimum applicable threshold in Annexure 1 (which the government had to obey) and the minimum applicable threshold in Annexure 2 (which they made up themselves) apart from the fact that they have dropped the 15km requirement.

That means that the 5000km of ‘lesser’ lines (even if you took it as one long line) connecting all those wind farms do not have to have an EIS in terms of Irish statutory law.

The Department of the Environment’s website on Environmental Impact Assessment says:

“In the case of development which is under the relevant EIA threshold, planning authorities are required under article 103 of the 2001 Regulations to request an EIS where it considers that the proposed development is likely to have significant environmental effects. The decision as to whether a development is likely to have significant effects on the environment must be taken with reference to the criteria set out in Schedule 7 of the Planning and Development Regulations 2001. In order to assist planning and other consent authorities in deciding if significant effects on the environment are likely to arise in the case of development below the national mandatory EIA thresholds, the Minister for the Environment, Heritage and Local Government published a Guidance document in August 2003.”

http://www.environ.ie/en/DevelopmentHousing/PlanningDevelopment/EnvironmentalAssessment/

This ‘guidance’, kindly provided by the Minister, says:

“3.4 In the light of the approach adopted by Ireland (i) in setting mandatory thresholds for each of the Annex II project classes and (ii) in setting these thresholds at substantially lower levels than comparable Annex I thresholds in the Directive, the need for sub-threshold EIA should be fairly limited in Ireland.”

http://www.environ.ie/en/DevelopmentHousing/PlanningDevelopment/EnvironmentalAssessment/PublicationsDocuments/FileDownLoad,1804,en.pdf

I’m sorry, Minister, but in what universe is 200kV “substantially lower” than 220kV?

In the UK, they developed a separate environmental impact assessment regulation for electricity systems and set quite comprehensive thresholds for Annex II projects. Namely 132 kV lines require an assessment as do lower voltage electric lines installed above ground in a sensitive area, as defined in nine points.
http://www.legislation.gov.uk/uksi/2000/1927/schedule/2/made

In Austria, the threshold is even lower for Annexure 2 projects requiring an EIS, namely 110 KV and 20 km in length in areas deemed requiring protection; whilst in Germany it is 5 km and 110 kV.

In essence, the Irish government is doing all in its power to keep grid developments necessitated by wind farms out of the statutory EIS process.

How can this be stopped?

Well, this is where the enlightened judgment of Peart J. in Pol O’Grianna and others vs An Bord Pleanala and Cork County Council becomes hugely significant.

You might remember that in my previous blog “Project Splitting” I reported that the learned judge was satisfied that the wind farm’s connection to the national grid was an integral part of the overall development of which the construction of the turbines was the first part. The wind farm on its own serves no function if it cannot be connected to the national grid. In that way, the connection to the national grid is fundamental to the entire project, and therefore the cumulative effect of both must be assessed in order to comply with the Directive.

.
When one takes a step back and looks at the big picture (which Eirgrid and the wind companies are desperately trying to hide from us) you realise that all the wind farms in the South of Ireland are intrinsically linked to Gridlink. Whether those wind farms are connected to the national grid by lines of 10kV, 38kV, 110kV, 220kV or 400kV does not matter. Adopting the reasoning of Peart J. in the High Court, it is clear that as those connections are fundamental to the entire project, the cumulative effect of the entire project must be assessed by an EIS, as it clearly falls under Annexure 1, being well in excess of 15 km, with lines of 220kV or more in many areas.

The same would apply to the Grid West project and all the wind farms hoping to connect to that project.

If you really want to take this reasoning to its logical conclusion, it means that no wind farm should be granted planning permission until Grid 25 is complete, as before that it is impossible for an EIS to assess the cumulative effect of the entire project, which means that the Planning Authority cannot make an informed decision.

There are planning applications from wind farms awaiting decision with plans to connect to both the Grid West and the GridLink projects. On the authority of the Peart J. Judgment, no more planning applications should be approved until, and only when, the respective Grid West / GridLink projects are completed. When the Grid West and GridLink projects respectively apply for planning permission, EirGrid must submit an EIS which assesses the cumulative impact of the entire project on the environment, including those wind farms already connected to the grid (you got lucky boys) and the wind farms still waiting for connection/planning permission.

Again, if you took this reasoning to its logical conclusion, as these projects are all connected to the national grid, no planning applications for wind farms, or Grid West if it applies before Grid Link or vice-versa, should be approved until both projects are completed and a national EIS covering the cumulative impact of both projects is submitted.

It could also be argued that wind farms with planning approval would need to make a fresh application for planning permission with regards to their proposed link-up to the grid, and because the cumulative impact of the project is covered by Annexure 1, an EIS for the entire project would be mandatory. If a Council or the ABP granted permission without one, they would be acting ultra vires.

Now that should be fun.

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.
This entry was posted in Uncategorized and tagged , , , , , , , , . Bookmark the permalink.

11 Responses to The Great EIS Swindle

  1. “Unfortunately, it is too late to stop the wind farms linked to the Grid West project”
    This statement is wrong as ABP still has not made a decision on two wind farms. The issue covered in the Peart Judgement was raised in the oral hearings on two wind farms (Cluddaun & Oweninney 160 Turbines\ 750 MW approx) last April \ May. Thus based on Peart decision permission should be refused for both wind farms. If not by ABP then through Judicial review proceedings. Thereafter 2 wind farms and Grid West will need to be assessed together.

    • Excellent news. I thought that horse had bolted.
      Thank you for that valuable information. I have updated my blog accordingly.
      Please have a look at the updated version and tell me if I got it right!

  2. Peter Sweetman says:

    If you really want to take this reasoning to its logical conclusion, it means that no wind farm should be granted planning permission until Grid 25 is complete, as before that it is impossible for an EIS to assess the cumulative effect of the entire project, which means that the Planning Authority cannot make an informed decision

    I agree with the above but would go a bit further, No planning application is valid unless the EIS contains all the likely significant effects both direct and indirect.

    We argued from 2000 re Shell; A refinery without a gas supply or a gas pipe to nowhere was contrary to the Directive but unfortunately we never got the logic of Peart J.

  3. Pat Swords says:

    It is not surprising that such issues have come up in the past. On further examination it seems that the EU Commission has relatively recently (March 2012) issued a position paper on it, see below, which really is what the adjudicating judge should be guided by. Furthermore, as it does not refer to any specific jurisprudence from the European Court, one can only assume that the question has only arose so far in complaints to the EU Commission and not an actual case in the European Court. However, the Interpretation Paper below from the EU Commission is not without its logic.

    http://ec.europa.eu/environment/eia/pdf/Note%20-%20Interpretation%20of%20Directive%2085-337-EEC.pdf

    One of the key positions in it is:

    “If it appears that the associated works are inextricably linked to the main works, their approval and initiation should be considered as an initiation of the project. Thus, where the main project requires an EIA, the approval and / or execution of the physical works prior to the undertaking of the EIA would constitute a breach of the EIA Directive. These works could only start once the EIA for the whole project (main and associated) was carried out”.

    If we go back to Gridlink, there is an ongoing Communication ACCC/C/2013/96 being processed at the UNECE Compliance Committee in relation to the Projects of Common Interest, for which some documentation on the relevant such projects for Ireland was provided as below; namely filled in Questionnaires, including one by Eigrid on Gridlink, which is very much worth the read.

    .http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2013-96/Communication/Attachment_6_Questionnaires.pdf

    The reason for Gridlink is there in plain English:

    “This investment is planned primarily to facilitate the integration of 1,283 MW of wind generation in the south of the country. This is approximately equivalent to 0,054 GW/1,000 km2 based on GW of additional wind installed within county boundaries. Because of the favourable wind conditions on the island of Ireland and offshore there is interest (evidenced by applications for grid connections) in developing renewable generation capacity well in excess of
    what is required for native demands. The connection of such capacity can only be facilitated if further interconnection is installed to provide access for this generation to the British and continental European markets, in addition it win facilitate future interconnection to Great Britain or France”.

    It is blindingly obvious isn’t it? So now we have an EU Commission position established with regards to what is within the scope of the EIA Directive, for which as a result individual wind farms in the South of the Country cannot be approved until the EIA process for Gridlink is carried out – which hasn’t started yet.

    But this is not the only legal requirement in this regard, The whole concept of ‘tiered decision-making’ and public participation, with the interplay between Article 6 of the Aarhus Convention on projects and Article 7 on plans / programmes, and in particular Article 6(4) as to effective public participation ‘when all options are open’, is becoming increasingly clarified. Particularly through the Maastricht Recommendations adopted by the Meeting of the Parties in July. These made extensive reference to decisions of the Compliance Committee already endorsed by the Meeting of the Parties and therefore part of the Convention and its legal order. See Points 16 to 19, 78 to 81 and 162 below:

    http://www.unece.org/fileadmin/DAM/env/pp/mop5/Documents/Category_II_documents/ECE.MP.PP.2014.8_e.pdf

    There is also a very strong judgement on ‘when all options are open’ from the European Court.

    http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-01/cp130001en.pdf

    So all ‘options have to be open’ including the ‘zero option’ as to why do we need all this infrastructure at all. Yet instead we have now have a very messy and illegal situation with the planners in Ireland, in which on numerous appeals to An Bord Pleanala we get:

    “None of these policies are open to review by the board”.

    “If some perceived illegality, unreasonableness or gross unfairness arises from a policy, then it can be challenged and set aside by a court. Regardless of the appellants opinion on the adopted policies the board may not change or set aside adopted policies. It must apply the policy as best it can”.

    So the whole public participation is a sham, they just pro forma go through the motions and then tick the box as approved, as it complies with the NREAP / renewable policy, all other considerations are ignored. So clearly Article 6(4) doesn’t apply as they slam the door shut to any assessment / question as of the requirements for the whole programme and justification therefore of the individual project under consideration. This of course also makes a mockery of the EIA Directive 2011/92/EC, which states in its Article 6(4):

    “4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken”.

    So the law is clear and sensible on a number of counts. It is also clear on a number of accounts related to the above, that we have an Irish State, which is acting completely outside its laws.

    On a personal note, a considerable amount of my work experience in the early 2000s was spent in Romania. Indeed from the office I worked in the Ministry had a window looking over the street at Ceaușescu’s giant ‘Palace of the People’. It wasn’t his only legacy around the place. Things are not a whole lot different in Ireland now than Ceaușescu’s time with what is going on with the wind programme; it is dictatorial, it is abusive to the rights of the citizens, it will wreck much of the natural landscape of Ireland, it will wreck the viability of our economy, plus along the way it will enrich a few, most particularly in the State sector – plus ca change, plus c’est la meme chose. At least in Romania they seem to have broken this cycle, the Rosia Montana gold mine project, quite rightly, brought citizens out into the street and into the Courts,

    http://www.independent.co.uk/news/world/europe/rosia-montana-campaigners-celebrate-court-ruling-over-canadian-mining-companys-plans-to-build-gold-mine-in-europe-9286844.html

    I’m not and will not be against development, but we have a series of checks and balances in our legislative framework, designed not only to ensure we get it reasonably right, but also to do so in a transparent and inclusive process. These are there for a reason, not least, as sweet heart deals behind closed doors are clearly designed to benefit those insiders. The EU has created, with willing helpers, a complete monster with this dysfunctional and completely unnecessary renewable programme, but it has done so also in a manner, which is outside its legal framework. There are strong parallels to Rosia Montana, with what is going on – hopefully we can learn from not only the past, but recent Romanian history, not least as the landscape in that part of the world is also stunning and now continues to be that way.

  4. Francis Clauson says:

    So where does that leave a wind farm – already built – which was “project split”. Take Gibbet Hill wind Farm in Wexford, In the case of Gibbet Hill there were four elements to the overall development:

    • Planning 20090266 – covered the turbines at Gibbet Hill wind farm
    • Planning 20110083 – covered the new access to the wind farm
    • Planning 20100469 – upgrade of Lodgewood Sub Station to facilitate wind farm connection
    • The grid connection from Gibbet Hill to the substation

    Part X of the 2000 Planning Act along with Schedule 5.3 (i) requires an Environmental Impact Statement to be provided for:
    “Installations for the harnessing of wind power for energy production (wind farms) with more than 5 turbines or having a total output greater than 5 megawatts.”
    Application 20090266
    • falls clearly into the above definition
    • came with an EIS
    • clearly noted that the grid connection had not been designed
    3.8.3.1 The actual route of the power cable from the substation on the wind farm to the main substation has yet to be determined. This is a matter for ESB Networks to decide in conjunction with the planning process and local landowners. It is expected that this connection will be in place for early 2010.

    This means at the time of submission of 20090266 Wexford CC was not in a position to carry out a full Environmental Impact Assessment for the whole project because the Grid Connection aspect of the project was not defined.

    Application 20110083
    • came with no EIS and
    • The council did not carry out an EIA.
    • Page 5 of their “Site Report” explicitly states that the project would NOT require an “Environmental Report” nor a “Environmental Impact Statement (EIS)”
    • The associated newspaper entry contained none of the wording required for an application which is subject to EIS.
    • The planners report contains no “EIS” section which is present, for example, in the report for 20090266.

    This means that 20110083 failed to comply with Part X of the Planning and Development Act 2000 and the underlying EU Directive.

    Application 20100469
    • came with no EIS
    • The planners report contained no “EIS” section
    • The business justifications for this development was (directly quoted from the Eirgrid http://www.eirgrid.com/media/Quarterly%20Review%20Issue%2033%20Spring%202011.pdf )
    Deborah Meghan, EirGrid manager, transmission projects, explained that “The station at Lodgewood is also geared up to accept the rising amount of wind power being generated in North Wexford.”

    This means that 20100469 failed to comply with Part X of the Planning and Development Act 2000 (“PDA 2000”) and the underlying EU Directive.

    The Grid Connection
    • I can find no planning application for the actual cable run from Gibbet Hill to the substation at Lodgewood and assume that there is a belief that this is exempt as a Class 26 development.

    Class 26 exemption cannot be applied to projects with require an EIS/EIA.

    Summary
    On the basis of the High Court judgment (“Framore”) it is evident that the Gibbet Hill was ‘project-split’ and the fundamental objectives of the EIA Directive were not met and the PDA 2000 has been contravened.

    There were at least four separate planning activities for the Gibbet Hill wind farm:
    • the turbines,
    • the ESB Connection
    • Sub Station upgrade
    • the access & track upgrade

    Only application 20090266 was subject to any form of EIA process as required by the EU Directive and the PDA 2000. It was carried out in advance of the other applications hence it could not have considered the impact they would have.

    On examination from the documentation received under AIE the EIA that was carried out for 20090266 contained significant weaknesses in its execution.

    The conclusion in my opinion is that Wexford CC should identify the measures it intends to take in order to remedy this infringement of the EIA Directive.

    • Unfortunately Francis, that ship has probably sailed. As I suggested, it might be possible to trip them up when they ask for planning permission to link up with the grid. At that stage you can argue that there should be an EIS for the cumulative impact of the entire project. However, as the wind farm is up and running, it is unlikely that planning permissioin for the link-up will be refused.

  5. Francis Clauson says:

    Well things could get interesting soon when either
    a) the council fail to carry out enforcement and we seek a JC to review their decision (and it comes to light that its actually and “unauthorized development” )
    or
    b) the council carries out some form of enforcement – the wind developer complains and calls a JC and then has to explain that his development complies even though its an “unauthorized development”

    then again I am a fanciful dreamy person – and have little concept of how unfairly the law will actually deal with this situation.

  6. Kath O'Brien says:

    Environment assessment on project splitting – this sounds like an excellent opportunity to scare off the wind farm investors as it may well lead them to believe that they will face huge delays in planning if not outright refusal by planning – in simple terms – delay equals money and hence the multinational wind developers move onto easier planning countries- ie makes Ireland High risk investment due to planning delays

  7. Peter Sweetman says:

    The O’Grienna judgement is not being appealed

  8. You are absolutely correct that the Irish government in the guise of the DCENR is doing all in its power to keep grid developments necessitated by wind farms out of the statutory EIS process.
    The transmission voltages prescribed in annexes II and III are nuanced by the standards that apply in each country. Whilst Ireland uses transmission voltages of 10kV, 38kV, 110kV, 220kV and 400kV the UK equivalents are 11kV, 33kV, 132kV, 275kV and 400kV.
    One must deduce that when Ireland adopts an Annexe II voltage of 200kV there can be no other basis than bad faith as the next lower transmission voltage of 110kV is expressly excluded. In the case of the UK, the next voltage level below 220kV (they use 275kV) is 132kV which is expressly included as an Annex II voltage requiring an EIS.
    Similarly, in Austria and Germany the transmission voltages are 10kV, 38kV, 110kV, 220kV and 380kV, and this is the reason that Austrian and German Annexe II voltages are 110kV to capture that the medium level transmission voltage.
    This effectively means that an EIS is required for any electrical grid infrastructure borne on steel pylons or large double wooden poles in Austria, Germany and the UK, whilst the equivalent infrastructure is excluded under the corresponding Irish legislation.
    Aren’t they clever little people in the DCENR? So sharp that you would wonder that they don’t cut themselves. Pity that they don’t apply their ingenuity to the benefit of the public that pay their substantial salaries.
    Don’t be shocked when more of this ingenious thinking is published in the White Paper on Energy Policy in Ireland. It is only in referenda where we get to vote twice when we make a mistake the first time . . . . civil servants always know better!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s