Environmental Impact Assessment required for peat and biomass power plant

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The case concerns a previously permitted peat and biomass co-fired power plant at Clonbullogue, Co. Offaly, which received planning permission from An Bord Pleanála for its continued use and operation in December 2013.

In granting the continued planning permission, the Board carried out an environmental impact assessment and a screening exercise for the purposes of the Habitats Directive, 92/43/EEC.

However, the non-governmental organisation An Taisce challenged the granting of planning permission through judicial review, seeking a quashing of the decision.

An Taisce sought declarations that the environmental impact of extracting the peat fuel source had not been properly assessed as required by the Environmental Impact Assessment Directive, 85/337/EEC (as amended) and that An Bord Pleanála was required to carry out such assessments.

Friends of the Irish Environment Limited had also brought a challenge through judicial review, seeking the quashing of the decision and declarations that the extraction of peat fuel source had not been properly assessed under the Habitats Directive.

They argued that the extraction of peat would likely have an effect on the River Barrow and River Nore, special area of conservation and the River Boyne special area of conservation.

The Court identified the relevant legislative framework as being that contained within Article 3 Directive 2011/92/EU of the European Parliament and Council of 13th December, 2011, as now incorporated in an Act of the Oireachtas, at Section 171A of the Planning and Development Act 2000, as inserted by the Planning and Development (Amendment) Act 2010.

The Article requires environmental impact assessments to identify, describe and assess the direct and indirect effects of a project on human beings, fauna and flora; soil, water, air, climate and the landscape; material assets and the cultural heritage and the interaction between these factors.

The Habitats Directive has also been transposed into Irish law by theEuropean Communities (Natural Habitats) Regulations 1997 S.I. 94/97, which requires the establishment of conservation measures for special areas of conservation, the avoidance of deterioration of natural habitats, and the assessment of any projects which might have impact on conservation sites.

In delivering the judgment, Mr Justice Michael White distinguished between the cases brought by An Taisce, and Friends of the Irish Environment Limited.

He also noted that despite certain arguments raised by the parties relating to deficiencies in the licenses given by the Environmental Protection Agency in relation to the peat bogs, the Court did not have the jurisdiction to consider the legality of peat extraction on the relevant bogs.

Rather, the Court could only consider the legality of the planning permission.

The Court also rejected arguments made by Friends of the Irish Environment with regards to the failure of Ireland and the Attorney General to correctly implement European Law and avoid the deterioration of habitats and the disturbance of species in the special areas of conservation.

The Court found that it could not discern any arguable case against either Ireland or the Attorney General.

The Court proceeded to consider the arguments put forth by An Taisce. It found that Article 3 of the Directive should be interpreted as having a broad scope and purpose.

Further, s171A of the Planning and Development Act 2000 was clear and unambiguous, and required “the direct and indirect effects” to be assessed “in the light of each individual case.”

It noted that “from any reasonable application of the objective facts of this project, there are possible indirect effects of the use of peat from these bogs on the environment.”

The Court acknowledged the standard of review set out in O’Keeffe v. An Bord Pleanála 1 I.R. 39, which would lead to an assessment of whether An Bord Pleanála had acted unreasonably. It also acknowledged that it was not for the Court to interfere in the determination of planning applications.

However, the Court found that the Board had interpreted s17A too narrowly, and therefore made a declaration that where the environmental effects of extracting the peat fuel source for the thermal power plant were not properly assessed for the purposes of the Directive, the Board is obliged to ensure the effectiveness of the Directive by subjecting those environmental effects to Environmental Impact Assessment before granting planning permission for the thermal power plant.

With regards to the arguments brought by Friends of the Irish Environment Limited, the Court raised concerns that the grounds of challenge had not been precisely given.

It noted Order 84, rule 20(3) of the Rules of the Superior Courts, which places an onus on applicants to state precisely the grounds of their application. It also cited Harrington v. An Bord Pleanála IEHC 232, which reaffirmed this requirement.

Mr Justice Michael White concluded that Friends of the Irish Environment had fallen “substantially short of the standard I would expect to sustain its argument. I accept that it may not be well resourced financially but that does not excuse its failure to put before the court, cogent material by way of expert analysis on affidavit of the case it is making about the Habitats Directive.”

As a result, no relief was granted to the second applicant.