What is happening at the High Court?

What is happening at the High Court?

 

Not a lot, it would seem.

 

In 2009 Pat Swords started his campaign against government plans to cover the Irish countryside with more than three thousand wind turbines and six thousand kilometres of new high and medium voltage lines.

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This led to the United Nations Economic Commission for Europe (UNECE) Aarhus Convention Compliance Committee in Geneva taking a test case in his name against the EU, in relation to the implementation of the National Renewable Energy Action Plan (NREAP) in Ireland, which was foisted on the Irish public without so much as a ‘how’s-your-father?’.

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At the time Ireland had not ratified the Aarhus Treaty, and therefore proceedings could not be taken directly against the Irish Government. This was unfortunate because if their mad energy plan had been stopped then, a lot of hardship and anguish, never mind the wastage of billions of euros of taxpayer’s money, could have been avoided.

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Pat circumvented the problem of not being able to proceed against the Irish government by going instead against the EU Commission for failing to ensure that Ireland did things properly when it came to consulting the public before it went ahead with the wind farms.

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The result was the ‘Swords decision’, in which the UNECE Compliance Committee confirmed that the EU had failed to comply with the necessary public participation provisions when it implemented its 2009 ‘Renewable Energy’ Directive (Directive 2009/28/EC on the promotion of the use of energy from renewable sources, which set an EU wide target of 20% renewable energy by 2020).

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Decision V/9g on compliance by the European Union, which was adopted by the Meeting of Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters at its fifth session (June/July 2014), found as follows (the Party concerned being the EU Commission):

“(a) That the Party concerned, by not having in place a proper regulatory framework and/or clear instructions to implement article 7 of the Convention with respect to the adoption of National Renewable Energy Action Plans (NREAPs) by its member States on the basis of Directive 2009/28/EC, has failed to comply with article 7 of the Convention;

(b) That the Party concerned, by not having properly monitored the implementation by Ireland of article 7 of the Convention in the adoption of Ireland’s NREAP, has also failed to comply with article 7 of the Convention;

(c) That the Party concerned, by not having in place a proper regulatory framework and/or clear instructions to implement and proper measures to enforce article 7”of the Convention with respect to the adoption of NREAPs by its member States on the basis of Directive 2009/28/EC, has failed to comply also with article 3, paragraph 1, of the Convention.”

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Pat then took the fight to the Irish courts. He had the decision of the ACCC that the consultation process before the launch of the Irish NREAP was fatally flawed. However, the EU enforcement mechanisms (especially where the EU Commission are on the receiving end) are notoriously slow as they are essentially political in nature and usually end up as political compromises behind closed doors. Therefore it made sense to secure a judgment of an Irish court against the government to the effect that the NREAP was irretrievably defective, and would need to be started again, but properly this time.

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Swords v Minister for Communications, Energy and Natural Resources commenced in November 2012, when Pat got leave to judicially review the Irish NREAP. The State made a counter motion in respect of delay in taking proceedings. This was a hugely cynical manoeuvre as their obstructionist tactics were the reason for the delays in the first place.

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The review proceeding was supposed to be heard in April 2013 over a period of three days by Justice Kearns. This was a complex issue, as Ireland was for many years the only Member State which had not ratified the Aarhus Convention (this finally happened in October 2012). Ireland had also failed to transpose the requirements of Directive 2003/4/EC and 2003/35/EC until subsequent decisions against it occurred in the European Court.

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Kearns J took the view that it even though Ireland had not (at the time) ratified the Aarhus Treaty, the Treaty was still binding on Ireland as a Member State since 2005 when the EU ratified the Treaty. As such, the learned judge decided, without producing any written judgement, that a Plenary Summons procedure should be substituted for a Judicial Review and the question of legal costs could be argued at that stage.

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It might be argued that Kearns J took the ball and booted it as far into touch as he could, probably hoping that it would not come back. In essence a plenary summons is used to commence proceedings where there is a real dispute between the parties but the amount of the plaintiff’s claim is not specific or easy to calculate. It is usually used in accident and injury compensation cases. I do not pretend to understand why the learned judge decided to use such a procedure here when there was essentially a procedural dispute which involved the interpretation of existing law and where the facts were relatively easy to determine.

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I would argue that a special summons should have been used. This procedure is reserved for cases that involve pure issues of law or very specific issues of fact – a complete description of Pat’s case. It is also a fast-track procedure where the judge decides the case by reading affidavits submitted by both sides. It is quicker and cheaper as it cuts down considerably on the bullshit and hot air, those much-loved tools of the State Solicitor’s office.

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Instead, surprisingly, the learned judge decided on plenary proceedings. When a plenary summons is issued, the next step is for the parties to exchange pleadings, which just means more opportunities for delaying tactics and increasing legal expenses by the State. The State grabbed this opportunity with both hands, arguing that it needed more than ten days in the High Court to present its case.  As the legal issues are relatively clear, this was probably intended as a platform to trot out a never-ending parade of puppet witnesses, who would say nothing but take a whole day to do it. This was nothing more than a scare tactic and also meant that the proceedings would be prohibitively expensive.

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This bully-boy tactic did not intimidate Pat, and the matter finally returned to the High Court in March 2015, this time for five days in front of another judge, Justice Keane. (Kearns J. announced his decision to retire early, no doubt eager to avoid having to preside over this dog fight).

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This five-day hearing was solely to deal with two preliminary motions; the first brought by the State in respect of time delay (using exactly the same argument as they had unsuccessfully used before when they lost before Judge Kearns) and the second by Pat who was looking for a protective costs order, given the enormity of the legal costs. The papers the State used to argue their delay argument were the same ones they had unsuccessfully used in April 2013. They just changed the title pages.

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In other words, the court has not looked at the substantive issue yet – namely the dodgy nature of the NREAP. This was just a preliminary skirmish.

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Judgment was reserved on 12 March 2015 by Justice Keane.

 

The parties were called back on 13 May 2015, expecting to hear the judgment. Pat was eager, the State was dreading it. However, the judge had not written the judgment, and the case was adjourned.

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The parties were called back on 29 July 2015, expecting to hear the judgment. The judge had not written the judgment, and the case was adjourned.

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The parties were called back on 13 October 2015, expecting to hear the judgment. The judge had not written the judgment, and the case was adjourned.

 

The parties were called back on 16 December 2015, expecting to hear the judgment. There was real excitement this time, as the judge was very late, and we imagined that he was putting the finishing touches to the long-awaited judgment. When he did arrive, the judge announced that he had not written the judgment, and the case was adjourned.

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The parties were called back on 17 May 2016, expecting to finally hear the judgment. The judge had not written the judgment, and the case was adjourned (until 17 June 2016).

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In its judgment of McMullen v. Ireland (Application no. 42297/98, judgment delivered on 29/10/2004), the European Court of Human Rights (ECHR) found that Ireland had violated Article 6 of the European Convention of Human Rights (the right to a speedy trial):

38. “The Court recalls that a State is obliged to organise its legal system so as to allow its courts to comply with the reasonable time requirement of Article 6 (…). It has held on a number of occasions that a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings does not dispense the State from complying with the requirement to deal with cases in a reasonable time (…). If a State lets proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be considered responsible for the resultant delay. …

  1. In this regard, the Court observes that a number of specific and lengthy delays in the proceedings are attributable to the domestic authorities: a period of more than one year between the last day of the High Court hearings and the delivery of its judgment (23 June 1992-13 July 1993); a period of almost two years between the applicant’s confirmation that all appeal documents had been filed and the first hearing date for the appeal (25 July 1995-21 March 1997); and a period of six months for the Supreme Court to re-constitute and fix a hearing date for the relevant appeal (11 June-16 December 1997). No explanation for these specific delays has been offered by the Government.

  2. In such circumstances, and having regard to the criteria laid down in its case-law, the Court finds that the proceedings in the present case were not dealt with within a “reasonable time”, as required by Article 6 § 1 of the Convention and that there has therefore been a violation of that provision.”

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Clearly the Irish Government did not listen to the ECHR, as exactly the same thing is happening with the Swords case. The State has been allowed to drag out proceedings, and mount up the legal costs of the applicant by continuously stalling and obstructing. And now the High Court is further confounding the process by sitting on its hands about a decision which should be writing itself, as clearly the State cannot win – both the law and the facts are completely against it.

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And perhaps that is the problem. Who would want to be in the shoes of Keane J when he tells the government that its multi-billion euro energy scheme is illegal and must be scrapped?

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 EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, High Court; Judicial Review; Appeal on the merits; judicial discretion, Law; High Court; Leave To Appeal; Environment, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Pat Swords, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, The United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information and tagged , , , . Bookmark the permalink.

8 Responses to What is happening at the High Court?

  1. Mike says:

    But will events not overtake this case in that the DCENR is now carrying out the required SEA as part of the energy framework including public consultation, see http://www.dcenr.gov.ie/energy/SiteCollectionDocuments/Renewable-Energy/Timeline%20for%20SEA.pdf

    So, by the time the judge gets around to delivering the judgement it will be too late to have any real effect on the NREAP, which will have been replaced by the framework.

    Where this leaves the already built wind farms etc is anybodys guess, although Eva Barrett wrote a good article on this at http://www.tandfonline.com.proxy1.athensams.net/doi/full/10.1080/02646811.2015.1008847#abstract

    Or is this too simplistic an interpretation?

    • Good question, Mike. I will let Pat give a fuller reply to this but my understanding is that public consultation must happen when “all options are open”, and the options that are available to the public must include “the zero option” (i.e. the choice of rejecting any proposed scheme). Accordingly, whatever the government try and foist on us now, including an amended Framework, will never be able to satisfy that requirement, as we are so far down the road of a wind-dominated renewable energy industry, that all options will never be open.

  2. pattikellar says:

    Reblogged this on Patti Kellar and commented:
    Excellent overview of Ireland’s court battles …. Hmmmm…Sounds familiar?

  3. Pingback: What is happening at the High Court? | ajmarciniak

  4. Pat Swords says:

    Mike

    The whole purpose of a Strategic Environmental Assessment is that it is completed, with the associated public participation, before the plan / programme ever gets adopted. This is defined clearly in Article 4 of Directive 2001/42/EC. Therefore, the whole Strategic Environemntal Assessment is an essential check and balance; the objectives of the plan / programme have to be defined, the reasonable alternatives to achieve those objectives, including the do nothing alternative, have to be assessed. The environmental impacts have to be assessed and the necessary mitigation measures developed, while monitoring has to be established for unforeseen adverse environmental impacts. The plan / programme once assessed in this manner in conjunction with the legally required public participation then goes for Government approval and finally an opportunity has then to be provided for the public to challenge the resulting decision in the Courts. This is only right and fitting as the resulting plan / programme then ‘sets the framework for future development consent’ of the downstream projects, in this case being wind farms and high voltage lines.

    This is what is called ‘tiered decision making’, in which some of the decisions are taken at the plan / programme level and some later at the individual project decision level. However, the overarching decisions usually occur at the plan / programme level. The whole public participation requirements of this procedure, in particular that ‘all options are open’ and as to how the ‘zero option’ has to be addressed is described extremely well in the UNECE Maastricht Recommendations:

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

    “F. Public participation on the zero option:

    16. In line with the Convention’s requirement for the public to have an opportunity to
    participate when all options are open, the public should have a possibility to provide
    comments and to have due account taken of them, together with other valid considerations
    required by law to be taken into account, at an early stage of decision-making when all
    options are open, on whether the proposed activity should go ahead at all (the so-called
    zero option).

    12 This recommendation has special significance if the proposed activity
    concerns a technology not previously applied in the country and which is considered to be
    of high risk and/or to have an unknown potential environmental impact. The opportunity
    for the public to provide input into the decision-making on whether to commence use of
    such a technology should not be provided only at a stage when there is no realistic
    possibility not to proceed”.

    Absolutely and utterly none of this happened, which as Mike has confirmed is highlighted in the legal article prepared by Eva Barrett, for which Mike already provided the weblink.

    If we consider that now after some 1,500 turbines have been built the Irish State is deciding that it will commence the preparation of a Strategic Environmental Impact Assessment for its renewable energy programme is not just a complete farce, but is a blatant and utter abuse of our rights. In the State’s documentation, link already provided by Mike, is is clear in that all the major decisions are now cast in stone and not open for review, so the whole procedure has been reduced to a sham. For instance, the 40% renewable electricity target, for which 90% of the infrastructure is to be wind energy, is not open for review’. Taking a simple issue of landscape impact, more than 3,000 giant turbines in the sensitive, unique and often very beautiful landscape of rural Ireland can be assessed as being somewhere between being described as a very significant adverse impact to being called downright vandalism. So what is the justifying feature which outweighs this massive impact? We simply do not know, it has never ever been assessed what tonnes of carbon dioxide are to be saved, what are the adverse impacts of a tonne of carbon dioxide, etc. Instead we have what can only be described as a besotted belief system that these giant and expensive contraptions are to give us superior weather in some fifty years time.

    The whole thing is a farce, to date the Irish renewable energy programme saves less than 0.004% of the global total of carbon dioxide emissions, while the planet’s temperature has been essentially flat for the last 18 years and there is absolutely nothing to demonstrate that current temperatures are anything outside what could be normally expected. Building windmills to change the weather is the most complete and utter stupidity, outside of world wars, that man has ever engaged in, not least as when one goes to seek the slightest bit of information to support the claims, it doesn’t exist.

    For example, if we consider the planning Inspector’s Report of the decision this February on a 46 wind turbine project for Co. Meath, then this is informative of position repeatedly articulated by myself and a growing number of citizens, in that public participation is ‘pro forma’, in that options are no longer open and there is an absolute refusal to address the justification for these developments. This can be seen from the below in Section 7.39 of the report, where the competent authority is required by law to complete its own environmental impact assessment of the project and address the impact on climate:

    An Bord Pleanala Case Reference PL17. PA0038: http://www.pleanala.ie/casenum/PA0038.htm

    “The EIS (developer’s Environmental Impact Statement) states that the operation of the proposed development would be likely to reduce the emission of greenhouse gases by the equivalent of 180,000 tonnes per annum. Several observers disputed the basis of this calculation. Their arguments were persuasive. The extent to which the proposed development would reduce greenhouse gas emissions depends on factors that cannot be conclusively determined in the course of this application, including the alternative means of electricity generation that would be available during its operation. Its impact on climate change would be positive, but it may not be significant. The proposed development is not justified for planning purposes by a demonstration that it would in itself lead to a quantifiable reduction in greenhouse gas emissions. It is justified by its compliance with general public policies that have been made in order to reduce greenhouse gas emissions. Whether those policies are likely to be effective is not a matter for the board to review in the course of this planning application”.

    In other words, the decision maker has absolutely no idea of what the impact, this large wind energy development he is supposed to assess, actually has on climatic factors, which is essentially the only justification for the project, which has enormous negative financial and environmental impacts. Not least as such climatic factors have never been assessed at the prior lever of tiered decision-making. Yet at the same time the decision maker is refusing to acknowledge the public’s right to public participation in decision-making, when all options are open. It doesn’t matter what valid and indeed persuasive analysis the public bring to bear, the whole public participation in decision-making is a sham; it is simply pro forma, going through the motions, in which the key factors, such the environmental effectiveness of the proposed renewable energy being supported by these previously adopted policies, has never been assessed. There is effectively zero information, as to what greenhouse gas emissions are to be saved and as to what the environmental damage cost (external cost) of those greenhouse gases is.

    So to answer your question, is it too late? No, the State has not only acted as a complete and utter bully towards me, but also in their approach to the two judges. They made it clear that any decision in my favour would completely halt the whole renewable energy programme and would be the ‘nuclear option’ leaving the State in an untenable position with the developers it had given contracts to, failure to comply with renewable targets in a Directive (which has now been demonstrated to have been illegally implemented), etc.

    In essence, the substantive issue of the legal failure to comply with due legal procedures has never really been part of my High Court proceedings, not least as it is already given that such a legal failure exists with an associated decision of non-compliance in International Law. My case is about the ability of the citizen to enforce the legal framework. Indeed, the former attorney general, who is the State’s senior consul,repeatedly summed up the situation to Justice Keane last March: “If the State so chooses to breach its International Treaty obligations, then the citizen can complain about it, but that is all the citizen can do”, despite those Treaty obligations being our democratic rights and part of EU law. So a cynical and utterly unacceptable position from the State’s senior consul, who was also so obnoxious that he repeatedly tried to slur my name in the Court proceedings, making wild claims that I was financially engaged in biomass projects and sought to financially gain from them by having the current ‘wind energy’ biased renewable programme reconstituted as a biomass orientated renewable programme.

    So where is this going to lead to,as Eva Barrett pointed out in her article, simply more legal cases, not least as even if my case is not ‘resolved’ by the time the State finishes its current Strategic Environmental Assessment procedure in early 2017, there are so many grounds to legally challenge the resulting renewable framework deriving from that process and hence bring any further renewable energy development in Ireland and its associated funding to a halt. This is a position which all the groups in Ireland should be aware of, as they have eight weeks after the adoption of that Strategic Environmental Assessment and associated renewable energy framework to bring a Judicial Review to the Courts, essentially the ‘nuclear option’ to halt everything until it is done in a legally compliant manner.

  5. Mike says:

    Thanks for the reply Pat, that makes it a lot clearer.
    My initial thoughts were that the department were undermining your whole case by belatedly complying with the law re SEA and consultation with the new framework but obviously this is not so.
    There have been so many instances of the state choosing to benefit a small but influential minority as highlighted by the various tribunals, wind energy may just be the latest example of such a choice. Invariably it ends up costing the taxpayer vast sums in legal fees and damages.

  6. Pingback: It’s official – nothing is happening at the High Court! | The Law is my Oyster

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