Court refuses to adjourn hearing of challenge against Shannon LNG terminal

Friends of the Irish Environment (FIE) has brought the challenge against the Minister for Communications, Climate Action and the Environment and the State.
Court refuses to adjourn hearing of challenge against Shannon LNG terminal

A High Court judge has refused the State's bid to adjourn the late June hearing of a challenge over how the controversial €500m Shannon LNG terminal and pipeline was included in a list of EU Projects of Common Interest.

The case, with European-wide implications, centres on the decision-making procedure involving the European Commission and the State leading to the inclusion of the Shannon project in the Fourth EU list of Projects of Common Interest (PCI), entitling projects to the “most rapid treatment legally possible”.

Friends of the Irish Environment (FIE) has brought the challenge against the Minister for Communications, Climate Action and the Environment and the State.

The respondents sought an adjournment until October next on grounds of "exceptional circumstances" arising from the relevant public officials dealing with the implications and potential implications of the Covid-19 virus for the security of supply of Ireland's natural gas and electricity systems. Because they are working remotely, they do not currently have access to all the files necessary to provide lawyers with full instructions, it was stated.

The adjournment was opposed by FIE whose solicitor Fred Logue said it seemed many of the issues the State respondents had said they "may" wish to file affidavits about were legal rather than factual issues.

In his decision, Mr Justice Garrett Simons said the main relief sought in the case is for the High Court to make a reference to the Court of Justice of the EU (CJEU) to determine the validity of the adoption of the Fourth EU PCI list.

Specifically, FIE challenged the inclusion of the Shannon LNG project in that list.

The sides disagreed about the appropriate forum for challenging the adoption of the PCI list with the State arguing FIE could have brought proceedings directly before the General Court of the EU.

The judge said the resolution of the case will turn largely on such legal, not factual, issues. It was difficult to see what affidavit evidence the State respondents could usefully advance in relation to these matters, he said.

FIE's specific complaints against the State, including alleged absence of a clear procedure for obtaining a referral to the CJEU concerning acts of bodies and agencies of the EU, was also a legal issue.

A claim by FIE the State did not appear to have conducted any or any adequate sustainability assessment before recommending the Shannon LNG project for the PCI list could be responded to "in relatively short course". Another claim the approval decision failed to comply with the Climate Change and Low Carbon Act 2015 did not appear to require "time-consuming effort" by officials.

The High Court must have regard to its obligation to ensure proceedings like this, in the court's Strategic Infrastructure Development list, are determined quickly, he said.

Against all that, Ireland is in an "unprecedented situation" and the court would never do anything which would impede the officials ability to discharge their vital role in this time of national crisis, he stressed.

He was not satisfied there was any conflict between that role and this case going ahead on June 30.

There was an obvious public interest it was determined expeditiously and the work required from officials for that appeared considerably less than apprehended as resolution of the case would turn largely on legal issues.

The fact officials work from home is not a valid excuse for adjourning legal proceedings for more than three months, he added.

Refusing the adjournment, he extended to May 12 the time for the State to file its opposition papers.

This appeared to be a case which could be dealt with via a remote or virtual hearing, and perhaps on the basis of documents only, he said.

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