Erm, EirGrid – didn’t you forget something (or someone)?

consultation

What is a Strategic Environmental Assessment (SEA)? Think of it as a mega environmental impact statement, or an XXL EIA (see my blog on the EIS and EIA). It is quite literally a national impact study of the environment and, as it would include trans-boundary projects, it can impact entire nationalities of many countries.

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Grid 25 is an example of such a trans-boundary project as it stretches across the entire island of Ireland.

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When one considers that this involves the entire country – which affects a lot of people and territory – it would not be far-fetched to imagine the type of media campaign that would need to be launched to properly inform the public about such a project; like prime-time TV infomercials, full page adverts in the national and large regional newspapers, radio adverts and speakers explaining the project in accessible language to regional listeners, as well as repeat spot adverts on all social media outlets.

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At the moment the hullabaloo concerns the North-South Interconnector and the submissions from the public concerning that – apparently there have been a flood of submissions regarding the Interconnector.

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I would like to suggest that EirGrid need to hold their horses on the interconnector, as it is all likely to come tumbling down when the mother project, Grid 25, is declared illegal and therefore incapable of bearing any legitimate offspring.

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In October 2008, EirGrid launched a long-term strategy for developing the transmission system, entitled Grid25. At the time, the strategy proposed “doubling the renewable energy and regional development”.  An investment figure of €4 billion was mentioned (this figure fluctuates depending on the identity of the spokesperson). The sale to EirGrid of System Operator Northern Ireland (SONI) was finalised in Spring 2009, following regulatory approval by the Irish Government, the British Government and the Northern Ireland Executive.

See: http://www.eirgrid.com/media/Quarterly%20Review%20-%20Issue%2024%20-%20Autumn%2008.pdf

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However, it was almost three years later that EirGrid called for consultations on Grid 25 and its accompanying Strategic Environmental Assessment (SEA).

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In its glossy publication “ENVIRONMENTAL REPORT for the Grid25 Implementation Programme 2011-2016”  an SEA is defined by EirGrid as:

“Strategic Environmental Assessment (SEA) is the formal, systematic evaluation of the likely significant environmental effects of implementing a plan or programme before a decision is made to adopt it.” (my emphasis).

(http://www.eirgrid.com/media/Environmental%20Main%20Report.pdf )

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This was the notice on the EirGrid website:

“30.03.2011 Consultation on Grid25 Implementation Programme and accompanying SEA commences today
EirGrid is currently consulting on the Grid25 Implementation Programme and accompanying Strategic Environmental Assessment (SEA) Environmental Report and Natura Impact Statement (NIS).
The following five documents can be viewed for consultation:
Draft Grid25 Implementation Programme
Draft Environmental Report for Implementation Programme
Appendix I Non Technical Summary for Environmental Report
Grid25 Natura Impact Statement
Natura Impact Statement Appendix

Submissions may be made to EirGrid on or before the 29th of April 2011 by email tosea2011@eirgrid.com or by post to Grid25 SEA Consultation, EirGrid, The Oval, 160 Shelbourne Road, Ballsbridge, Dublin 4. However, comments or observations which arrive after this date and before May 31 2011 will also be considered by the project team as it finalises the documents.”

Um, excuse me? How can you launch something in 2008 and then whisper in 2011 that you would like the public to consult and thereafter supposedly decide whether the project will go ahead? Clearly at the time of the call for consultations, this was a done deal and well under way. Perhaps somebody reminded the Minister about that conversation they should have had in 2007, about involving the public in a scheme concerning the whole island of Ireland, with a proposed enormous outlay of public funds?

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I say “whisper” when describing the notice calling on the public to consult because the only “proof” of such a notice is on the EirGrid website. A search of all the archives of the leading national and regional newspapers does not reveal an iota of evidence that there was publication of any notice to the public in this regard, never mind any other forms of media. Does EirGrid have details of these public notices, accompanied by proof of publication?

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At paragraph 1.2 of the previously mentioned “ENVIRONMENTAL REPORT for the Grid25 Implementation Programme 2011-2016”, the following is said:

“Environmental assessment is a procedure that ensures that the environmental implications of decisions are taken into account before such decisions are made.
Environmental Impact Assessment, or EIA, is generally used for describing the process of environmental assessment for individual projects, while Strategic Environmental Assessment, or SEA, is the term which has been given to the environmental assessment of plans and programmes, which help determine the nature and location of individual projects taking place.
SEA is a systematic process of predicting and evaluating the likely significant environmental effects of implementing a proposed plan or programme in order to insure that these effects are adequately addressed at the earliest appropriate stages of decision-making in tandem with economic, social and other considerations.
Major electricity grid developments over the next decades will be guided by EirGrid’s Grid25 Strategy. By anticipating the effects of implementing Grid25, and avoiding those which cannot be sustainably accommodated, such as by directing development towards more compatible and robust receiving environments, real improvements in environmental management and planning can occur. Benefits of considering environmental effects at this highest level include: that the scope of lower tier environmental assessments which may be required are likely to be reduced; the impacts arising from projects are also likely to be reduced; and planning applications are more likely to be granted consent.” (my emphasis)

EirGrid’s own definition of an SEA makes it clear that public consultation is absolutely essential, ostensibly to find the path of least resistance, but also to be informed if there are any significant social, economic or legal obstacles to implementing a national project of this size and magnitude.

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This simply did not happen. In paragraph 1.4 of the same document, the following titbit of information is offered when outlining the background to the SEA:

“On completion of the draft IP and an earlier version of this ER, EirGrid gave the environmental authorities consulted at scoping stage, as well as the public, at least 4 weeks to make submissions on the IP and ER; the environmental authorities were sent a copy of the draft IP and ER and a newspaper notice was published. Submissions made were taken into consideration before adoption of the IP.” (my emphasis)

Concerning their call on the public to consult on a national project of such scope and magnitude, EirGrid claim to have issued a “newspaper notice” (singular, not plural). Does this mean that a single notice was issued in a single newspaper calling on the public to properly consult within four weeks on a four billion euro project?

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You couldn’t make this stuff up!

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The fact that only three out of a meagre 24 submissions received at the time were from members of the public is testament to the truth that the public were largely ignorant of Grid 25 in 2008, because EirGrid did not do enough to make them aware of it. Whether this oversight was deliberate or negligent is not for me to say, as the motive behind it is legally irrelevant – the fact remains that the public were not properly informed of their right to consult, and in addition were not given a reasonable period to consult.

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It must also be pointed out that only the public in the Republic of Ireland were invited to consult by way of this single notice. The public in Northern Ireland did not receive any notice at all. Remember that the Grid 25 project involves the whole of Ireland, as evidenced by EirGrid’s current flavour of the month, the North-South Interconnector.

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This failure to consult is in flagrant violation of the Aarhus Treaty. Article 7 of that Treaty says:

“The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention.”

UNECE’s ‘Aarhus Convention: An Implementation Guide’ second edition clarifies:

“The second sentence of article 7 requires the relevant authority to identify the public which may participate, taking into account the objectives of the Convention. Unlike other aspects of article 7, this second task is not put on the Party but directly on the relevant public authority.”

http://www.unece.org/fileadmin/DAM/env/pp/Publications/Aarhus_Implementation_Guide_interactive_eng.pdf

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The objectives of the Aarhus Treaty are to “to encourage widespread public awareness of, and participation in, decisions affecting the environment and sustainable development”.

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In other words, the obligation to identify the public which may participate should not be seen as a tool to limit participation, but rather as a way to streamline the participation in order to make it more effective.

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If one considers that the public in the North were never invited to consult, and the invitation to the public in the Republic, on EirGrid’s version, amounted to a single notice, then clearly the provisions of the Aarhus Treaty have not even been remotely complied with.

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As the ‘Aarhus Convention: An Implementation Guide’ clarifies:

“In today’s information-saturated society, it can be extremely difficult to command the attention of those the public authorities would like to reach. Efforts must be made to ensure that the public concerned is not only reached, but that the meaning of the notification is understandable and all reasonable efforts have been made to facilitate participation. Thus, a small announcement in a newspaper among hundreds of advertisements would perhaps not be considered effective.”

In other words, effective engagement with the public never occurred, as EirGrid did not reach out to engage with the public and explain what the Grid 25 Strategic Environmental Assessment procedure was.

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UNECE published the very helpful Maastricht Recommendations which helped us understand Aarhus. With regards to the same Article 7 of the Aarhus Convention on identifying the public which may participate, the Recommendation says:

• 163. The public participation procedure should be open to allow anyone affected by or with an interest in the decision to participate.
• 164. However, simply designing the procedure so that anyone who may wish to participate can do so may not be enough. It is recommended that a wide range of interest groups be identified and encouraged to take part in the process. For example, depending on the nature of the plan, programme or, as appropriate, policy, as well as its geographical scope, in addition to members of the public generally, it may be important to invite representatives of, inter alia, some or all of the following groups to participate:
* Community groups;
* Residents’ organizations;
* Business and industry organizations;
* Farmers’ organizations;
* Religious communities and faith-based groups;
* Universities and research institutions;
* NGOs interested in environmental protection, heritage protection, social welfare, etc.;
* Associations of users (for example associations of users of given waters);
* Tourist and sports organizations.

• 165. It is also important to involve ordinary members of the public and, as a good practice, actively to encourage all the people and organizations likely to be affected by or having an interest in the decision to take part.”

http://www.unece.org/fileadmin/DAM/env/documents/2014/EIA/MOP/ECE.MP.EIA.SEA.2014.2_e.pdf

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This did not happen with the Grid 25 Strategic Environmental Assessment. However, when public awareness was finally raised through the efforts of community organisations (and despite the efforts of the DECNR and EirGrid to quash these efforts) there was public outrage. When one considers that on the Gridlink component of Grid 25 alone, over 35,000 submissions/objections were received during the public consultation on this project; and this number is  contrasted with the paltry 24 submissions that were received from the entire country concerning the mother project, Grid 25, the facts speak for themselves. It is not as if the public didn’t want to participate in the decision-making around Grid 25, they were just not made aware of it.

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And what about the public in the North? Can it be argued that Grid25 is essentially about the Republic and does not really affect the public in the North?

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Well, rather than foisting my own opinion on you in that regard, I refer you to an An Bord Pleanála decision on how the North-South Interconnector was deemed to fall under the Strategic Infrastructure Development Act (which means the planning application goes straight to An Bord Pleanála):

Board Direction

Ref: 02.VC0054 The submissions on this file and the Inspector’s report were considered at a Board meeting held on 4th February 2014.

The Board decided, generally in accordance with the reasoning set out in the Inspector’s recommendation, as follows:
• That the proposed development does constitute strategic infrastructure development,
• That an EIS is required to accompany the application, and
• That significant effects are likely on the environment in a transboundary state (Northern Ireland). (my emphasis).

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The Inspector’s report is even more revealing:

• 6.3 Is the proposed development likely to cause significant effects on the environment in a transboundary State (Northern Ireland)? Having regard to the nature, scale, extent and potential impacts of the proposed development which itself constitutes an interconnector project between two member States of the EC I consider that the prospective applicants should be informed that the proposed development would be likely to have significant effects on the environment in a transboundary State (Northern Ireland). The prospective applicants in their submissions to the Board as part of the pre application consultation process have concurred with this view (see submission received 13th December 2013) and particularly in areas relating to human beings, flora and fauna, landscape and material assets. (my emphasis).

http://www.pleanala.ie/casenum/VC0054.htm

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Despite these “significant effects”, the Northern Irish were never invited to consult on Grid 25, nor were they informed about the Grid 25 SEA that was being carried out on their side of the border.

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The EU Commission is certainly aware of this duplicity and lack of public involvement in a national project of such magnitude. It made the following statement in a 2011 compliance report:

“In 2008, the Commission launched infringement proceedings against 11 Member States, including Ireland. The case against that Member State falls into two parts. First, it relates to Ireland’s failure to subject its National Development Plan for 2007-2013 to a prior environmental assessment. Second, there are several conformity issues with respect to Irish legislation purporting to transpose the Strategic Environmental Assessment Directive: (i) Articles 2(a) and 3(2), (3), (5), (6) and (7) in as much as Irish legislation does not cover all categories of plan and programme or modifications of them or does not cover them correctly; (ii) Article 6 in as much as the Irish legislation fails to provide for consultation of all relevant environmental authorities and the provisions for consulting the public are too limited; and (iii) Article 5 as there is inadequate provisions for consulting environmental authorities on the content of environmental reports.
The Commission sent its reasoned opinion on 3 November 2009 and Ireland replied on 5 February 2010. The new legislation adopted by Ireland on 3 May 2011, the Planning and Development (Strategic Environmental Assessment) (Amendment) Regulations 2011 (SI 201 of 2011) has yet to be evaluated by the Commission and indeed Ireland has not even notified it officially to the Commission.”

http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2010-54/Correspondence%20with%20Party%20concerned/Response%2028%20June%202011/frComRESPONSE.pdf

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However, given its over-indulgence of the wind industry, that is pretty much all the EU Commission does: write reports and file them in a dusty drawer somewhere.

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It will take a momentous effort on the part of the Irish public to stop this latest outrage from an unrepresentative government and a very large company that smirks at the idea of public consultation, despite being funded by that selfsame public.

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So EirGrid, before you start shouting from the rooftops about your wonderful North-South Interconnector, perhaps you need to gauge the anger of the public in the North and the South when they realise that they have been duped (again) and kept in the dark?

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 Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector and tagged , , , , , , . Bookmark the permalink.

5 Responses to Erm, EirGrid – didn’t you forget something (or someone)?

  1. Nigel Hillis says:

    Get your facts right – its officially 1,200 submissions as confirmed by An Bord Pleanala !nn

  2. Nigel Hillis says:

    Neil,
    The point that you are making has already been made in An SEA consulting process. Here is the cut and paste from An SEA Implementation Programme :

    “It is clear that the SEA process cannot be used as a
    bolt-on to underpin and justify decisions that have
    already been taken, but rather it is a tool that must
    be used to influence the decision making process”.

    Response:
    The objective or purpose of the SEA Directive is to
    (Annex I) ‘…provide for a high level of protection
    of the environment and to contribute to the
    integration of environmental considerations
    into the preparation and adoption of plans and
    programmes with a view to promoting sustainable
    development, by ensuring that, in accordance
    with this Directive, an environmental assessment
    is carried out of certain plans and programmes
    which are likely to have significant effects on the
    environment.’
    The SEA has been undertaken for the Grid25
    Implementation Programme and complies with the
    SEA Directive. The SEA has extensively influenced
    both the Implementation Programme and wider
    practices and procedures within EirGrid. This
    influence is detailed under Section ‘2.7 Planning,
    Environmental and Community Considerations’
    and Section 9 ‘Mitigation Measures’ of the SEA ER.
    Proposed Amendments Arising:
    None.

    I had no idea what that answer meant at the time and still have no clue except that is the usual Eirgrid gobbledegook!

  3. SAFE AMP says:

    Another excellent piece Neil, thanks. Incidentally we came across the enclosed piece in the Sunday Business Post – we have made contact with the Creaghs and will give them any info we have that may be of use to them. We believe that this is the first time EMF has been acknowledged in this fashion….could be interesting. Keep up the good work, a lot of people are very appreciative of your work and like I said before I envy your students !!

  4. Thanks for that. I would like to read the piece in the SBP. Please could you e-mail it to me? You have my e-mail address I know. Thanks!

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