The SEA and Wind Farm Guidelines

 

The issue of the replacement of the 2006 Guidelines regulating a safe distance between wind-farms and residences has been going on for so long now in Ireland that it has taken on the nature of a Molière farce.   The ‘new’ guidelines, first aired in 2013, have now themselves become obsolete before their implementation as they are kicked from political pillar to post. Wind turbines are increasingly growing in height and in blade distance, and have outstripped the ‘research’ on which the 2013 guidelines were supposedly based (if one were to accept the findings of Marshall Day).

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The obvious problem facing wind-farm developers in Ireland is the nature of the rural population. Houses are scattered far and wide. Unlike the European system of restricting housing to hamlets and already-settled areas, in Ireland we have a relatively small rural population spread over a large area of land. The result is that there are very few large areas of land that are people-free, and accordingly if the separation distance was increased from the current guideline of 500m (particularly if that became a mandatory distance rather than a “if-you-feel-like-it” guideline), it would be practically impossible to build windfarms in large swathes of the Irish countryside. Music to our ears, but a horror story for the wind-farm developer.

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A recent opinion by Advocate-General Kokott for the European Court of Justice has thrown a further cat among the pigeons, as it states that these guidelines are subject to a Strategic Environmental Assessment (SEA).

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In brief, what happened was that a Belgian environmental NGO challenged the wind energy guidelines for their province in the Belgium Council of State (like an administrative law High Court), who in turn referred the dispute to the European Court of Justice. The contested issue was whether the wind energy guidelines should have been subject to a Strategic Environmental Assessment (SEA), which they weren’t.

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What is an SEA?

A Strategic Environmental Assessment (SEA) is the process by which environmental considerations are required to be fully integrated into the preparation of Plans and Programmes prior to the final adoption of those Plans or Programmes. The objectives of the SEA process are to provide for a high level of protection of the environment and to promote sustainable development by contributing to the integration of environmental considerations into the preparation and adoption of specified Plans and Programmes.

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The requirement for SEA derives from the SEA Directive (2001/42/EC). Eleven sectors are specified in the Directive and Competent Authorities (Plan/Programme makers) must subject specific Plans and Programmes for these sectors to an environmental assessment where they are likely to have significant effects on the environment.

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The eleven sectors are as follows: Agriculture, Forestry, Fisheries, Energy, Industry, Transport, Waste management, Water management, Telecommunications, Tourism, Town and Country Planning or Land Use.

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Clearly the million-dollar question is. What is a “Plan or Progamme”? This is a burning issue as whenever the government is accused of not implementing an SEA, its stock response is “but it’s not a Plan or Programme”, it’s a “…” (substitute any of the plethora of bullshit-descriptions dreamed up by the relevant government department seeking to evade the SEA Directive).

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What is a “Plan or Programme”?

The SEA Directive, after setting out its objectives in Article 1:

‘The objective of this Directive is to 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.’

thereafter goes onto define ‘Plans and Programmes’ in Article 2(a):

‘For the purposes of this Directive

(a)    “plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:

– which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and

– which are required by legislative, regulatory or administrative provisions.’

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This very wide all-encompassing definition makes it clear that anything passed by government or local government or the Minister empowered by statute is a Plan or Programme and therefore requires an SEA if it impacts on the environment, (which is usually a given). The definition is further widened when the Directive goes on to say that even where a Plan or Programme does not fit into this definition, if it is likely to have an effect on the environment (guidelines are attached in the annexures to help the reader decide this) they should also have an SEA. For example:

  • the magnitude and spatial extent of the effects (geographical area and size of the population likely to be affected),

  • the value and vulnerability of the area likely to be affected due to:

    • special natural characteristics or cultural heritage,

    • exceeded environmental quality standards or limit values,

    • intensive land-use,

    • the effects on areas or landscapes which have a recognised national, Community or international protection status.’.

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In the Belgian case, the local authority for the Walloon area, just like their Irish counterparts, did not put through any legislation regulating issues like distance, shadow flicker, noise, etc. but rather made an Order (like our guidelines) which purported to regulate the wind farms (but without the binding qualities of an Act or Regulation). The NGO challenged this Order as it was not preceded by an SEA. The local authority argued that the order was not a “Plan or Programme” as envisaged by the SEA Directive.

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The Belgian court referred the following question to the ECJ:

In the course of those proceedings, the Council of State has therefore referred the following question to the Court:

“Are Articles 2(a) and 3(2)(a) of the SEA Directive to be interpreted to the effect that a regulatory order containing various provisions on the installation of wind turbines, including measures on safety, inspection, site restoration and financial collateral and permitted noise levels set having regard to town and country planning zones, such provisions setting a framework for the grant of administrative consent allowing a developer to install and operate installations which are automatically subject under national law to an assessment of their effects on the environment, must be considered to be a ‘plan or programme’ within the meaning of those articles?”

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This case caused much international interest, and as well as the written arguments of the parties themselves, written arguments were also submitted by the governments of Belgium, France, and the Netherlands, as well as the European Commission.

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A quick explanation about how the preliminary ruling procedure works in the ECJ: Instead of the Court immediately giving a judgment in the usual way, what happens is that the Court appoints an Advocate General to research the matter, consider all the written arguments put forward, and thereafter that Advocate General issues an Opinion. This Opinion is very important, as the ECJ will nearly always follow this Opinion (in fact I have never heard of a case where they have not followed the Opinion, either totally or at least most of it) when it issues its final binding judgment.

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So what did Advocate General Kokott say?

In her usual manner, she was very brisk and clear in her Opinion. An Authority (government or local government) is not allowed to circumvent the SEA process by dividing it up into various executive regulations, guidelines, etc. (very similar logic to the ban on project-splitting to evade the EIS).

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AG Kokott pointed out that the ECJ had already clarified what was meant by “Plans and Programmes” in the SEA Directive:

“The fact that, in the judgment in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others (Judgment of 11 September 2012 in C‑43/10, EU:C:2012:560, paragraph 95), the Court, relying on a finding concerning the objectives of the SEA Directive in the judgment in Inter-Environnement Bruxelles and Others, has since defined the meaning to be ascribed to the expression plan or programme has so far been overlooked. According to that finding, a plan or programme is a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny. (my emphasis). … Consequently, there is no reason to restrict the Court’s definition of the terms ‘plans and programmes’ in relation to policies or legislation.”

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When looking at the Order setting out the various measures for the regulation of the Belgian wind-farms , the AG was very clear that this (guideline) was indeed covered by the SEA Directive:

“An order containing various provisions on the installation of wind turbines, including measures on safety, inspection, site restoration and financial collateral as well as noise levels set by reference to town and country planning zones, which prescribe at least part of the framework for the grant of administrative development consents for installations referred to in Annex II(3)(i) to Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment must be classified as a ‘plan or programme’ within the meaning of Directive 2001/42.” (my emphasis).

 

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This preliminary determination has direct effect on the situation in Ireland. Our Wind Energy Guidelines deal witrh similar issues to the Belgian ones, and are also used in development consent of wind farms here (they are adored by An Bord Pleanala), and therefore they too must comply with the EIA Directive – Annex II(3)(i) of Directive 2011/92/EC. Are you listening, Minister Naughten?

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We now have to wait for the ECJ to issue its final judgment along those lines. Once issued, the consequences are clear: Any wind energy guidelines a Government minister issues will be illegal unless they have gone through a prior and detailed Strategic Environmental Assessment.  

 

 

 

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 EirGrid; Insurance; Law; Cancer; EMF, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten and tagged , , , , , , . Bookmark the permalink.

5 Responses to The SEA and Wind Farm Guidelines

  1. margaret mulligan says:

    Once again thanks for the great work… slowly the powers that be , are encouraged to do the correct thing.

  2. Pingback: The SEA and Wind Farm Guidelines | ajmarciniak

  3. fclauson says:

    Neil

    This is an interesting opinion but given the Derrybrien SC judgment http://www.courts.ie/Judgments.nsf/0/77284F77AF49694F80257EE0004B739A there will be no impact on any developer if or if not an SEA is required NREP or WEDG06 because the unsuspecting developer cannot be held responsible for a failure by the state

    So although in the future you could (and I will) you cannot gain support from WEDG06 which was not subject to an SEA I suspect all those already built will stay there

    UNLESS we get a true polluter pay judgment and then all bets are off

    • Good point Francis. I must read the judgment. It could be argued that the developer should know the law pertaining to his industry and therefore should have realised that the CEO of ESB was not allowed to sub-delegate. We might also argue that the ESB is not the State in the sense meant in the judgment, I.e. The legislature as opposed to a quango / parastatal.

  4. Owen Martin says:

    The Advocate General has taken a broad interpretation of the meaning of plans and programmes here.

    In England, they tended to take a more narrow interpretation, which meant you couldnt challenge a policy, only the alternatives to achieving that policy.

    This decision seems to make more sense, the SEA should apply to policies including regulations as otherwise they could split the plan or programme up.

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