Plus ça change, plus c’est la même chose

An interesting commentary from Pat Swords on the North-South Interconnector:

“Some thoughts and facts about the Ireland of today with further confirmation that we don’t live in anything that even remotely approaches a Democracy. Still one gives it a ‘poke’ and it interesting to see what comes out.

The background to this is the North South Interconnector which is a 400 kV pylon route of 140 km in length from the South of Meath some 34 km into Tyrone, with a cost of some €250 million. The reason for it? It is part of the €4 billion high voltage grid expansion for the Island of Ireland to facilitate a target of some 40% wind energy (42% in N. Ireland target). Let’s face it for years the Irish grid functioned perfectly well without this project. Pretty picture of typical 400 kV pylon below, plus this project directly facilitates the roll out of more than 600 MW (> 300 turbines) in Donegal and West N. Ireland.

Naturally, it is contentious. As a Strategic Infrastructure Development it went straight into An Bord Pleanala, with the only right of review being into the Courts. Under the UNECE Convention and the European Law which implements it, such a legal appeal is meant to address the substantive and procedural acts and omissions. In practice, an Irish Court will not look at a substantive issues, i.e. related to the merit of the decision making, unless you can first prove that the Government official acted so irrationally that it defied common sense. So your only chance is on procedures.

At the Bord Pleanala stage an unprecedented 871 submissions costing €50 each were made by individuals and groups of individuals working together. Plus people put a lot of time and effort in to present at the oral hearing. An Bord Peanala file:

You will notice that a repeated theme of the public from the summary of their submissions, was why do we need this project and there are huge illegalities in the manner this renewable programme has been adopted:

However, An Bord Pleanala ruled all matters connected with the need for the project and anything related to overarching plans and programmes as out of the scope of its decision making. Instead this decision-making was limited as to whether it went overground or underground and the final routing, i.e. left or right. The Convention and the EU’s Environmental Impact Assessment Directive, which transpose it, require “effective public participation when all options are open”. The UNECE’s Recommendations and International ‘case law’ on public participation are clear: Participation means that there must be a possibility to influence the decision. Note: Consultation is when you tell them what you are doing, participation is when it can be influenced. Secondly, decision making often occurs in tiers; for example some overarching decisions being taken at a plan / programme level and then others at the subsequent project level, for which as the Recommendations explain:

• F. Early public participation when all options are open (article 6, paragraph 4) 78. In the case of tiered decision-making (see para. 17 above), in order to ensure early and effective public participation when all options are open: a. There should be at least one stage in the decision-making process when the public has the opportunity to participate effectively on whether the proposed activity should go ahead at all (the zero option) (see also para 16 above); b. In addition, at each stage of a tiered decision-making process, the public should have the opportunity to participate in an early and effective manner on all options being considered at that stage; c. Information about the decision-making in the earlier tiers should be available in order for the public to understand the justification of those earlier decisions — including the rejection of the zero option and other alternatives; d. When in a tiered decision-making process new information subsequently sheds doubt on decisions made in the earlier tiers or stages or severely undermines their justification it should be possible to reopen these decisions.

Needless to say the public were never involved with the decision-making on the National Renewable Energy Action Plans for 40% renewable electricity, which included this grid programme, neither does any environmental assessment exist for any aspect of that.

So what did we learn today? Well essentially An Bord Pleanala is a ‘clearing house’ or ‘rubber stamp’ for Government policy and we have absolutely nothing to do with their function other than they just collect public submissions at €50 a go from us, record them and ignore them.

It gets deeper though, not only did the EU do the complete dirt on the public by adopting these National Renewable Energy Action Plans without any environmental assessment or public participation, but it went out and repeated this exercise in 2013, by adopting a Regulation on Projects of Common Interest (PCIs) to provide fast track planning and billions of funding to some 150 transboundary electricity projects. At the moment there is a UNECE Aarhus Compliance Case (C-96) on-going on this which is very near completion. But in summary that compliance case proves as to how no environmental information was available, as it simply did not exist. The public in the Member States were never informed. Instead an obscure EU consultation website was used, which only ‘insiders’ would know about and everything was in English only, which is ‘bugger all use’ to the majority of the EU’s 470 million citizens, who don’t speak English. The below is the sum total of environmental information relating to the North South Interconnector which the EU had, when it adopted the below on its 2013 PCI list. :

First of all even if we wanted to legally challenge the EU on this PCI Regulation, we can’t as EU Citizens have no access to the European Court of Justice to do so, a position in which the EU is in contempt of a ruling at UNECE against it. Therefore, one has to try and take an indirect challenge through a project, such as the North South Interconnector. However, it is position the judge adopted on this Article 7 of the Regulation above, which is very interesting (despite what we had argued / presented):


• Article 7
‘Priority status’ of projects of common interest
1.   The adoption of the Union list shall establish, for the purposes of any decisions issued in the permit granting process, the necessity of these projects from an energy policy perspective, without prejudice to the exact location, routing or technology of the project. [Emphasis in bold]

So once the EU put it on the list, it was all a done deal! The public participation was only there for ‘candy floss’. An Bord Pleanala is a clearing house to rubber stamp the project and the Irish High Court is a clearing house to rubber stamp An Bord Pleanala.

So it’s just like Animal Farm, where the pigs (especially Napoleon) decide and the animals have to toil building windmills, as Squealer the pig explains it:

• “No one believes more firmly than Comrade Napoleon that all animals are equal. He would be only too happy to let you make your decisions for yourselves. But sometimes you might make the wrong decisions, comrades, and then where should we be?”

Plus ca change!



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 full-time practice in 2002 to take up a 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). His current interest is 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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1 Response to Plus ça change, plus c’est la même chose

  1. Pat Swords says:

    Indeed, I was having a closer look since. Val had spotted something important with the PCI designation above for the North South Interconenctor, which was adopted on the 2013 list by the EU and he was right:

    Click to access 2013_pci_projects_country.pdf

    “A new 400 kV AC single circuit (OHL) of 140 km and with a capacity of 1,500 MVA …….”

    This project and many other ones on this PCI list are defined as OHL. This is a common abbreviation used by the industry, such as Eirgird, which is defined as; overhead transmission lines (OHL). Given that once it is goes on the list, the necessity of the project is defined and from that point out it is simply ‘rubber stamped’ through the process, this is of real concern. For those who promoted that an underground option should be pursued, then simply put, such an underground project was never on the PCI list!

    So why do we need this project at all? As the on-going Communication ACCC/C/2013/96 documents, no environmental information was ever available to the EU Commission when these projects were put on the PCI list, all that was available to them was a number of filled in short questionnaires, which were obtained after a long legal battle, see below, where the North South Interconnector is on page 99 of 119 in the pdf:

    Click to access Attachment_6_Questionnaires.pdf

    So how did we get to that situation, which such key decision making is completed with disregard for assessing environmental and financial considerations, any alternatives, etc., and the sole function is to facilitate political targets, the adoption of which also occurred without assessment of environmental and financial considerations, any alternatives, etc?

    If we look at where all this came from and the EU’s Decision No 1364/2006/EC laying down guidelines for trans-European energy networks. This in its Article 6 “Projects of common interest” defined

    “1. The generic criteria to be applied when a decision is taken on identification of, modifications to, or specifications or applications for updating projects of common interest shall be the following:

    (a) the project falls within the scope of Article 2;

    (b) the project meets the objectives and priorities for action set out in Articles 3 and 4 respectively;

    (c) the project displays potential economic viability.

    The evaluation of economic viability shall be based upon a cost-benefit analysis which takes account of all costs and benefits, including those in the medium and/or long term, in connection with environmental aspects, security of supply and the contribution to economic and social cohesion. Projects of common interest which relate to the territory of a Member State shall require the approval of the Member State concerned.”

    Nobody would consider that inappropriate, and indeed neither myself or others would have any objection if such information as above was actually available. However, as the legal battle with the EU documented in Communication C-96 shows, by the time the EU Commission adopted these projects in the 2013 list, all that it was based on was the information in the questionnaires, which to put it bluntly fell an awful way short of fulfilling the above requirement. So how did they get around it from a legal perspective? Well they simply repealed the above when they adopted the current PCI Regulation in 2013 – Regulation (EU) No 347/2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009.

    This new Regulation has an Annex V on cost benefits, but it doesn’t address economic viability as a required factor. Indeed if we consider the criteria now adopted in Article 4(2) for electricity projects:

    “(i) market integration, inter alia through lifting the isolation of at least one Member State and reducing energy infrastructure bottlenecks; competition and system flexibility;

    (ii) sustainability, inter alia through the integration of renewable energy into the grid and the transmission of renewable generation to major consumption centres and storage sites;

    (iii) security of supply, inter alia through interoperability, appropriate connections and secure and reliable system operation;”

    Until the EU came along with the lunacy of their 20% renewables by 2020 Directive, all of the Member States had electricity grids, which worked perfectly fine for decades, in a completely reliable and affordable manner. Now we have large parts of the EU countryside visually destroyed, over a €1,000 billion spent on wind turbines and solar panels, which has driven the cost of electricity through the roof and has made it unaffordable for a section of society, while many countries simply no longer have enough reliable generation to keep the lights on when the cold weather, such as in 2010, hits them again. Furthermore, their grid operators are now constantly making emergency interventions to prevent the system failing. So in relation to (i) and (iii); well that was something which we had by default in the past before politicians started issuing their wonderful plans by diktat, so why the hell do we need these PCIs at enormous expense to obtain it now?

    As for (iii), well as I’m tired of pointing out, when they adopted this wonderful (to them) renewable energy Directive, they had zero idea of what was to be built, where it was to be built, what it was to deliver, what it was to cost, etc. Neither do they have the slightest idea of what actual environmental damage CO2 is doing, if at all, so they fudged the figures for the cost benefit calculation by coming back to what they always do, their politically agreed target. But hey, I’ve written about that absolute stupidity before:

    Laois Wind Energy Awareness Group, in particular Ray and Kevin, have been doing a great job shuttling over to these PCI meetings in the EU Commission and asking the hard questions. As they can clarify, a total farce actually occurred when they tried to quantify the so called environmental benefits associated with these projects. Which really comes back to the nub of it, sooner or later we will all have to sit down to a banquet of consequences, a banquet which is getting bigger as the financial waste and scarring of our countryside increases. It’s only the weather out there, there is nothing abnormal occurring and despite all the billions thrown at renewables in Ireland, as the above document on ‘clean energy’ shows, Ireland’s renewable energy programme delivered emission savings of less than 0.004% of the global total; a futile drop in the ocean. The planet is doing fine, but the lunatics are now in control of the asylum and dictating this stupidity to us.

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