The Scare Tactics of the Wind Industry

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One of the most commonly-used tactics of domination by modern governments is to keep their citizens in a state of perpetual terror by continuously announcing doomsday scenarios, and then use these apparent threats to justify increasingly oppressive governance. We now see continuously increasing levels of electronic surveillance and invasions of privacy, increased taxation to fund unregulated and often out-of-control government spending; the politicisation of the courts and the judicial process with the resultant undermining of civil liberties, and finally, a raft of oppressive legislation, just in case everything else is not enough.

The Americans wrote the twentieth-century manual, but everybody else caught on very quickly. We have had Y2K, the war on terror, swine flu, and now global warming – terrifying us witless and usually fulfilling its own prophecy by convincing us through the media that shit did actually happen.

The wind industry have been very quick to pick up on this ‘frighten the crap out of them and they will stop thinking’ tactic by continuously referring to the massive fines that Ireland will incur if we do not reach the EU imposed renewable energy targets by 2020.

It is time to carefully examine this latest doomsday scenario.

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The EU does have the power to impose fines on any Member State

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Articles 260 and 261 of the current EU Treaty on the Functioning of the European Union (TFEU) allow the Commission to bring a complaint to the European Court of Justice (ECJ) that a Member State has failed to comply with a Regulation or transpose a Directive and the ECJ can levy a fine on that Member State.

In particular, Article 260(3) says:

“When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.
If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment.”

So that much is true.

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However, the wind industry would have us believe that as soon as 2020 arrives the reaction of the EU to Ireland’s failure will be swift and brutal – “man the lifeboats everybody, we’re going under”.

Actually, this procedure takes a very long time indeed. After months, even years, of correspondence between the European Commission and the Member State, the Commission will finally get the hell-in and institute the complaint procedure. At the first stage under Article 258 of the TFEU the Commission can refer the Member State to the ECJ which gives its judgment as to whether or not a breach of EU law has occurred.

Judgments from the ECJ are not a rapid event. The ECJ ‘deliberates’ for a very long time before making up its mind and in addition usually asks one of the Advocate-Generals to prepare an opinion for its consideration (in other words, it only starts to think about the matter after somebody else has thought about the matter first).

While an adverse judgment of the ECJ can mean that the Irish government will be facing out of pocket losses and expenses, particularly if they choose to defend the case and/or have to pay the fine, a judgment at this stage is not usually a major concern for the Government as the prospect of financial penalties is still a long way off.

This is because the second stage (under Article 260 of the TFEU) arises only if the Member State fails to comply with the judgment in a timely manner. This is almost always the case as the Member State at this stage just kicks for touch and another lengthy period of correspondence between the Commission and the Member State takes place usually accompanied by a string of ‘informal meetings’.

If a deal is not struck between the Commission and the Member State, the Commission will then apply to the ECJ for a second time, this time asking that a financial penalty be imposed on the Member State, with the Commission suggesting an appropriate sum. A second judgment from the ECJ is required for the fine to be imposed, with the whole ECJ procedure being repeated, by which stage everybody has forgotten what the original argument was about, and a new government (perhaps two or three) has been elected in the Member State concerned.

For a blow-by-blow description of this lengthy process, have a look at http://www.friendsoftheirishenvironment.org/cmsfiles/files/library/ongoing_eu_infringments.pdf , but make yourself a very strong cup of coffee before you begin to read.

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But how often is this procedure used and how big were the fines?

It is quite difficult to get access to these cases and so up-to-the-minute data is hard to come by, but in 2012 it was reported that only 14 cases had been brought by the Commission to the ECJ in terms of Article 260 since 1993. In addition, not all of these cases resulted in financial penalties, and when financial penalties were imposed, these were of a token or symbolic nature (see Kilbey, Ian (2010) ‘The interpretation of article 260 TFEU (ex 228 EC)’. European Law Review, 35 (3) pp. 370 – 386; Pål Wennerås, ‘Sanctions against Member States under Article 260 TFEU: Alive, but not kicking?’ (2012) 49 Common Market Law Review, Issue 1, pp. 145–175).

Article 5(4) of the TFEU says that: “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”.

The Commission and the ECJ have taken this to heart, and the fines are really a slap-on-the-wrist for a Member State who is expected to reach its targets some day, just not at the moment. The whole thing is a bit of an insider joke really.

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Will Ireland be singled out for failing to meet its 2020 renewable energy targets?

A 2014 report from the European Commission found that 14 European Union member states will certainly fail to meet their renewable energy target by 2020 based on current progress, and more are likely to join that number.

The EU Tracking Roadmap released by the Keep on Track! monitoring body warned that Belgium, the Czech Republic, Spain, France, Greece, Hungary, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Slovenia, and the UK are all likely to miss their 2020 renewable energy targets.

There is uncertainty that Germany, Finland, Ireland, and Slovakia will make their targets.

Current predictions are that only Austria, Bulgaria, Cyprus, Denmark, Estonia, Italy, Latvia, Romania, and Sweden will hit their targets by 2020.

You can read the entire report at http://www.keepontrack.eu/contents/publicationseutrackingroadmap/kot_eutrackingroadmap2014.pdf . More strong coffee is recommended (120 pages).

Other countries have not yet got off the ground with their renewable energy policies, leading the report to conclude:

“Under current RES support frameworks and related parameters (BAU case), only a RES share of 17.9% appears feasible at EU-27 level.”

That’s less than a fifth! And remember that this is written by the EU Commission, the very people that want this mad scheme to succeed, so we need to read that figure with a large pinch of salt.

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So what is the Commission going to do – take all those Member States (including Ireland, who are more compliant than many) through the whole Article 260 procedure and ask for massive fines to be imposed?

Of course it won’t. Firstly, from a logistical point of view that would be impossible to complete within ten years at current speeds of enforcement; and secondly, it would be an admission by the EU that its renewable energy programme is a fiasco and a complete failure.

So the next time some wind energy or government spokesperson tries to scare you with the bogeyman of ‘massive fines if we don’t achieve our 2020 renewable energy target”; laugh in their face and tell them to sod off.

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 The Scare Tactics of the Wind Industry

  1. Not only are the wind industry / DCENR using this nonsense as a big stick with which to threaten us, In media debate, Ken Mattews of IWEA is actually building the potential fines into the figures he is spuriously claiming show that his industry’s products are somehow economically viable. Further distortion of the facts from an industry who have written the book on it.

  2. Mike says:

    Given that the NREAP, upon which the entire scam is based, was enacted without any Strategic Environmental Assessment, and also lacked the required public participation element. as required by Aarhus, would the Government not be able to make the defence that the NREAP was improperly adopted.?
    Would this amount to a “get out of jail free” card?
    Eva Barrett had a very good article on the shortcomings of the NREAP and the tenuous position of the wind industry here; http://www.tandfonline.com.proxy1.athensams.net/doi/abs/10.1080/02646811.2015.1008847#.VTTwDSGjNcY

    • Ha! That’s a lovely thought Mike but I doubt that even this government would have the brass to argue that their illegal actions meant that they could avoid financial penalty. The failings that you mention are also infringements of the Treaty as they are failures to properly implement the Renewables Directive and therefore (in principle at least) are also subject to penalty. That will not happen as the EU Commission are just as guilty of not following proper procedures in that regard. I have read Eva’s article – it is a good read.

  3. Equator says:

    These kind of tactics by Government reminds me of the same strongarm methods used by the previous government (FF, Greens) concerning the targets set by the Kyoto Protocol. It was stated by the then government (FF, Greens) that if we did not follow the ‘rules’, Ireland will be punished with at least €400 million in fines. However, Kyoto is now in tatters because nobody was willing, or able, to comply with it. This just means a lot of time, energy and money lost chasing these unattainable targets.

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