An environmental group has claimed before the High Court that the European Commission invalidly approved the inclusion of the controversial €500m Shannon LNG terminal and pipeline in a list of EU Projects of Common Interest.
The claim was made by Friends of the Irish Environment in a case which opened on Tuesday before Mr Justice Garrett Simons.
The case, which has Europe-wide implications, centres on the decision making procedure involving the European Commission and the State leading to the Shannon project being included in the 4th EU list of Projects of Common Interest (PCI), entitling it to the “most rapid treatment legally possible”.
FIE’s case is against the minister for communications, climate action and the environment and the State.
Prior to deciding other issues, FIE wants the judge to refer issues to the Court of Justice of the EU concerning the validity of a “delegated act” of the European Commission on October 31, 2019, approving inclusion of the Shannon project in the PCI list.
The commission has been served with the proceedings but has so far opted not to participate.
When opening the judicial review proceedings on Tuesday, counsel James Devlin, with John Kenny, instructed by solicitor Fred Logue, for FIE, said the main relief being sought at this stage is a reference to the CJEU. If a reference is made, its outcome will substantially influence the remainder of the case, he said.
In seeking a reference, FIE claims the adoption of the 4th EU PCI list makes it an annexe of Regulation 347/2013 of the European Parliament and European Council on guidelines for trans-European energy infrastructure.
It says issues arise concerning interpretation of that Regulation, the Shannon project does not satisfy the criteria required by Article 4 of the Regulation and the correct steps to ensure compliance with the criteria were not taken.
Among various claims, it says it is unclear on what basis the commission had concluded the Shannon project was “necessary” for at least one of the energy infrastructure priority corridors and areas for the purposes of Article 4.
The document submitted for public consultation concerning the project appeared to have been written by the promoters of the project, it says.
While the State has argued the commission had concluded the project satisfied the general criteria, FIE says it has been unable to identify where the commission’s assessment was conducted. Similar arguments applied to how the commission concluded the benefits of the Shannon project outweighed its costs.
Other claims by FIE, which are ‘parked’ pending the decision on whether to make a referral, include that the State appeared not to have conducted any or any adequate sustainability assessment before approving the Shannon project for the PCI list and its approval failed to comply with the Climate Change and Low Carbon Act 2015.
The State parties contend the case is “profoundly flawed and misconceived as a matter of law” and should be dismissed.
The State says the referral being sought is impermissible under EU law and is now pointless because, since the case was initiated, the process of establishing the EU list of PCI projects has ended with the entry into force last March of the disputed regulation.
The commission is empowered to adopt delegated acts subject to conditions, including no objection having been expressed by the European Council and European Parliament, the State says. Because the former had not objected, and the latter voted last February to reject a motion objecting to the PCI list, the delegated regulation was published in March and has entered into force, it says.
The case is listed to run for four days and the judge has indicated he will be reserving his judgment.