In Violation of Aarhus

Pat Swords for blog

Pat Swords has been waging a lone battle on our behalf for a very long time now, but at last his efforts are bearing fruit. In honour of Pat’s bravery and dogged determination, I have selected portions of his writing so that he can tell the story in his own words:

The United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted on 25th June 1998 in the Danish city of Aarhus, hence its common name ‘Aarhus Convention’.

The subject of the Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement; it is also a Convention about government accountability, transparency and responsiveness. The Aarhus Convention grants the public rights and imposes on Parties and public authorities’ obligations regarding access to information, public participation and access to justice. An excellent three minute video explaining the Convention can be found on the UNECE website.

The Compliance Committee are distinguished specialists in environmental law from the greater European Area. They meet about three times a year, on each occasion for about four days in Geneva, in which they will review a number of ‘Communications’ from the public and Environmental NGOs (Non-Governmental Organisations) in relation to a Party’s compliance. Note: This is a voluntary commitment by the members of the Compliance Committee; they only receive re-imbursement of their expenses for this commitment.

If the Communication is deemed by the Compliance Committee to be of substance and the Party has not demonstrated adherence to the obligations in the Convention, they will then issue recommendations with a timeframe with regard to compliance.

(In 2010, along with Russia), Ireland was the only country that had not yet ratified the Convention, and so it was not possible to open a compliance investigation against the Government of Ireland. I got around this obstacle by submitting a Communication instead against the EU, who had ratified the Convention in February 2005 and was therefore a Party to the Convention.

In this Communication, which was accepted by the Compliance Committee at their December 2010 meeting, I complained that the EU had:

• Approved the State Aid funding for renewable energy in Ireland, which led to the construction of most of the wind farms now in Ireland
• Contributed €110 million in funding for the electrical interconnector between Ireland and Wales, whose only function was to facilitate an increase in wind energy in Ireland.
• Required Member States to develop a National Renewable Energy Action Plan (NREAP) to comply with their mandatory renewable energy targets set in Directive 2009/28/EC, in a format which failed to comply with the information requirements of the Aarhus Convention.

The last point is of particular relevance. When it launched the National Renewable energy Action Plan (NREAP), the Irish Government had failed to comply with the Convention as it failed to provide environmental information, public participation in the development of the policies, public participation in the planning approvals for the individual projects and providing citizens with access to the Courts to challenge acts and omissions of the authorities. As this process was facilitated by the EU, in effect the EU had helped contravene the Aarhus Treaty, which is exactly the opposite of what it should be doing: enforcing the Aarhus Convention.

Following on from their acceptance of the Communication, the Aarhus Convention secretariat on the 28th January 2011 presented me with six detailed questions to respond to by the 28th June 2011, while simultaneously the EU Commission was presented with four questions.

Both parties were then invited to a discussion on the substance of the Communication in Geneva by UNECE, which was to be held for a full day on the 21st September 2011, during the autumn meeting of the Compliance Committee.

As the meeting began, it soon became clear that the focus was clearly on the EU’s responsibilities to:

(a) Monitor proper implementation of EU law related to the Convention in Ireland in respect of the National Renewable Energy Action Plan and;

(b) To comply with the Convention with regard to approval of State Aid for the Renewable Programme (REFIT tariffs) and direct funding of €110 million for the electrical interconnector.

In the morning session, discussions focused on the absence of a Strategic Environmental Assessment for the NREAP, as it was clear that under Directive 2001/42/EC, Article 3 (2) that such an assessment is required for a programme likely to have significant environmental effects in the field of energy. Furthermore it was clear in Ireland that both the Energy White Paper policy and the National Renewable Energy Action Plan were being used as the justification to approve individual wind farm developments.

However, the adamant response of the EU Commission’s senior lawyer, Mr Eric White, was that the renewable energy programme / policies did not require a Strategic Environmental Assessment as they did not fall under this Directive. Clearly this was somewhat bizarre and the Committee closely questioned Mr White on this clear contradiction until finally Mr White did have to concede that this was the case. He was also forced to concede that there should have been extensive public consultation on the NREAP before it was officially launched.

Mr White’s position with regard to the funding of the €110 million for the interconnector and approval of the State Aid (REFIT tariffs) was also somewhat bizarre. He repeatedly expressed the view that if a project funded by the EU ended up in some sort of violent scene on the construction site, then the EU could certainly not be held responsible for any violations in Human Rights. On this basis it seemed that the EU had no liability with regard to the failures of the Irish Administration with regard to the Aarhus Convention, when it allocated the funding and approved the State Aid.

As you can imagine, I argued against this ludicrous statement. Under Article 3 of the Convention the EU has to take the necessary legislative, regulatory and other measures, including proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of the Convention. Clearly this did not happen.

The Compliance Committee therefore focused in on how exactly the EU monitored the Convention, a discussion which was repeated in a more focused manner in the final afternoon session. In essence the Commission was relying on Member States to send in reports on their compliance, which they then evaluated. Members of the public could also send in complaints to the Commission, but they were under no obligation to address them, in my case, and presumably in many, many other instances, if they did not agree with them, they just ignored them. As far as the EU was concerned, if a Member State was failing to comply with the law, it was up to citizens at national Level to take legal action against the State. They did not see this as their responsibility.

The Committee was clearly unhappy with what was being presented by the legal team from the EU Commission. Hence they gave them two weeks to write back and confirm precisely how they function to fulfil these responsibilities.

The Committee also focused on the public participation that occurred in relation to the Irish National Renewable Energy Action Plan. According to the EU Commission this had in fact occurred and they were satisfied with it. However, the evidence was clear that it all happened so fast and in such a compressed period. I argued in my closing statement that the behaviour of the EU to me, and other citizens who had tried to object to the NREAP being shoved down our throats, was to ignore them and even treat them with contempt. This was not in the interest of proper democracy and was completely against the principles of public participation, which was to be inclusive and bring out the talents and skills of others.

In reply to my statement, the senior lawyer in the EU Commission, Mr Eric White, then stated in his closing summary to the meeting (not quite exact words as I am using my memory):

‘Mr Swords is of course entitled to his opinion and to air it. However, it is a view which has no value; he is clearly wasting his time and would be better off spending it on something else.’

 

Anyway, to cut a long story short, the EU Commission has done its best to duck and dodge the Compliance Committee by continuously asking for adjournments, or putting up replies which say nothing.

It seems that the Compliance Committee has tired of the EU’s delaying tactics and has just ordered them to turn up on Wednesday 16th December 2015, when the Committee will have a day-long review of the Communication on the Projects of Common Interest in Geneva.

As we know these Projects of Common Interest have a huge impact on Ireland, whether it be Element Power’s madness in the midlands, the pumped hydro stupidity in Mayo, the completely unnecessary North-South Interconnector, plus other pylons crisscrossing the countryside and connected to new interconnectors to the UK and France. So the previously Green Isle is to be plastered with pylons and turbines as the ‘blue lines’ below are realised.

PCI-2014

 

Furthermore, there has been a complete failure by the EU to even remotely comply with the access to information on the environment and public participation requirements on these Projects of Common Interest. This was well documented in my Communication and supporting information and all that the EU could do was try and have it thrown out as inadmissible, which has backfired on them, as it has simply raised and clarified additional issues related to the lack of proper access to justice at the European Court.

I would hope that groups from Ireland and elsewhere attend these proceedings on 16 December. Similar groups in Scotland previously lodged a Communication, and this has led to a ruling that the UK NREAP was non-compliant, so it is well worth the effort. If you check the Aer Lingus / Swiss websites, early and mid December is a very cost effective time to travel. There are a number of reasons to attend, the Palais Des Nations, which is the old League of Nations building, is a very unique experience. You get to see the EU being put under pressure in cross examination and finally at the conclusion of the proceedings, observers are provided with an opportunity to speak.

It would be brilliant if somebody made a video record of some of it, even better if a representative of the local Irish or other media attended or publicised it in advance.

Thanks for your continuing support.

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.
This entry was posted in Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty and tagged , , , , , . Bookmark the permalink.

5 Responses to In Violation of Aarhus

  1. Pat O'Brien says:

    Excellent Neil – Pat is an outstanding engineering professional and does not suffer fools gladly
    It has been my delight and pleasure to have worked with Pat on many EU environmental projects during my time in PM Group up to retirement in 2011

  2. Nigel Hillis says:

    In the latest EU PCI List the 18 Irish PCI’s have been whittled down to a handfull. All the daft silly ones are not there any more. Could someone please tell An Bord Pleanala to ammend their website!

  3. endacraig says:

    Hi Neil, I have shared this article with a number of people who have responded that Ireland has actually ratified the Convention in 2012 Can you please clarify Best regards Enda Craig

    The situation in Ireland is both complex and shameful. Ireland will not ratify the Convention, as it is resistant to transparency in Governance and the provisions of the necessary Rights to its citizens, in particular with regard to access to the Courts. The only other European country that has not ratified the Convention is Russia, so Ireland is in good company!

    Date: Sat, 21 Nov 2015 15:21:56 +0000 To: endacraig@hotmail.com

    • Hi Enda

      That was my mistake. I used a portion of Pat’s earlier writings, (written in 2010) as background, and when it was written Ireland had not yet ratified. Ireland ratified the Convention in 2012.

      Thank you for reading and sharing the blog. Pat deserves all the support that we can give him.

      Regards
      Neil

  4. Pat Swords says:

    There is more to these Projects of Common Interest than the people in Ireland and in particular in the South East realise. Therefore, a little further publicity would not hurt. First of all, with series compensation, etc, the perceived wisdom is that Gridlink has vanished – not so when one understands the full extent of Gridlink and what it as a Project of Common Interest entails. As we can see significant money is now flowing into the French Interconnector project:

    http://www.rte.ie/news/business/2015/0714/714712-ireland-and-france-could-have-subsea-cable-link/

    http://www.irishtimes.com/news/science/energy-plan-includes-electricity-interconnectors-linking-ireland-to-france-1.2435409

    As part of the process in which the Communication ACCC/C/2013/96 arose, i.e. the one to be heard on the 16th December dealing with these Projects of Common Interest, we dug out from the EU some interesting information. Go to the Gridlink questionnaire on page 87 of the pdf linked below:

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

    “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”.

    So with once the domestic ‘series compensation’ and the new interconnectors in place, the ‘powers that be’ can roll out all that wind energy above in the South of Ireland. The ‘powers that be’ will distort the financial figures for the French interconnector’s justification by pointing out correctly that French generation costs are cheaper (as nuclear they are) and so will reduce the cost of generation here. However, a lot of heating in France is electrical due to its competitive cost, so when a cold snap comes in France (2010 anybody?) the French grid is struggling like mad to supply its own customers. So if we adversely affect the commercial viability of our own domestic generation under the Trojan Horse to finance this interconnector to France (with the 1,283 MW of wind turbines within the horse!!), i.e. giving our power plants less run time and substituting them with cheaper French electricity, then when the cold snap arrives, how are we to have enough domestic generation, which works to keep the lights on here? Unless of course you can absolutely guarantee loads of windy weather when the cold snap arrives!

    So people need to realise what is going on behind their backs and as to why this meeting in Geneva on the legalities of this Project of Common Interest programme is so important:

    http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom/acccc201396-european-union.html

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