High Court of Ireland Decisions

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Cite as: [2020] IEHC 159

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BETWEEN

THE HIGH COURT

JUDICIAL REVIEW

[2020] IEHC 159

2020 No. 76 J.R.

FRIENDS OF THE IRISH ENVIRONMENT CLG

APPLICANT

AND

MINISTER FOR COMMUNICATIONS CLIMATE ACTION AND THE ENVIRONMENT

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

SHANNON LNG LIMITED

NOTICE PARTY

JUDGMENT of Mr. Justice Garrett Simons delivered on 3 April 2020

INTRODUCTION

1. This judgment sets out my ruling in respect of an application for an adjournment of the

substantive hearing of these judicial review proceedings. The adjournment application

has been dealt with on the papers, i.e. without an oral hearing in open court. Each of the

parties was instead afforded an opportunity to state their position in correspondence.

None of the parties took up the court’s invitation to request an oral hearing.

2. The ruling is being published by way of a formal judgment in order to ensure compliance

with the constitutional requirement that, save in such special and limited cases as may be

prescribed by law, justice shall be administered in public. This judgment will be posted on

the Courts Service’s website.

PROCEDURAL HISTORY

3. These proceedings have been admitted to the Strategic Infrastructure Development List

of the High Court (“the SID List”). The SID List had been established by the President of

the High Court (Kelly P.) in February 2018 to ensure that legal proceedings in respect of

strategic infrastructure development projects are afforded an expeditious hearing. To this

end, such proceedings are subject to active case management, and are assigned early

hearing dates. The judge assigned to hear the case reads the papers in advance of the

substantive hearing, and this ensures that the hearing is more focused.

4. The judge in charge of the SID List, McDonald J., admitted the proceedings into the list on

13 February 2020. Directions have been given as to the exchange of pleadings, affidavits

and written legal submissions. The substantive hearing of the application for judicial

review has been fixed for 3 to 4 days commencing on 30 June 2020. McDonald J. has

since assigned the case to me for hearing.

5. The adjournment application has been made on behalf of the respondents to the

proceedings, namely the Minister for Communications Climate Action and the

Environment, Ireland, and the Attorney General (“the State Respondents”). The

adjournment application is opposed by the applicant for judicial review, Friends of the

Irish Environment (“the Applicant”). No submission has been received from the notice

party.

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ADJOURNMENT APPLICATION

6. The adjournment application is grounded upon the affidavit of Mr Kevin Brady. Mr Brady

is a Principal Officer in the Department of Communications, Climate Action and

Environment (“the Department”).

7. The nature of the evidence which the Department may wish to adduce in their opposition

papers is identified as follows (at paragraph 11 of the affidavit).

“In order to respond to the Applicant’s case, the Respondent may wish to adduce

evidence on inter alia the facts as they relate inter alia to the security of energy

supply of the European Union as well as that of the State; the technical and

scientific evidence on the relative greenhouse gas emissions from different energy

sources in the energy mix of the State and the Union; the nature of the legal duties

of States and the Union during the transition to a low-carbon economy; and the

respective roles of the Union institutions, the Regional Groups, the Agency for the

Cooperation of Energy Regulators and the Member States in the Regulation as well

as the procedures followed in the case of the approval process at issue in this case

and, to the extent that it is able and/or privy to same, the facts relating to the

procedure followed at EU level leading up to the Commission approval at issue,

including the public participation process that has taken place in relation to the PCI

list at EU level.”

8. The affidavit goes on to explain that the team within the Department which is principally

responsible for dealing with the issues raised by these proceedings is a small team,

consisting of two full-time individuals who are managed by a Principal Officer. The

officials are responsible for security of supply policy in relation to natural gas and

electricity, but also have a range of other additional responsibilities, including gas

regulatory policy, renewable gas policy, renewable heat policy and commercial and public

sector energy efficiency policy.

9. The exceptional circumstances underlying the adjournment application are then detailed

as follows (at paragraphs 13 and 14 of the affidavit).

“I say that these team members along with a number of other colleagues in the

Department of Communications, Climate Action and Environment are dealing at

present with the implications and potential future implications of the COVID-19

virus for the security of supply of Ireland’s natural gas and electricity systems. I

say and believe that the individuals working on this issue are the same individuals,

as set out above, as those who have the knowledge and expertise to prepare the

State’s response to these proceedings. I say and believe that this team is currently

working with the Commission for Regulation of Utilities, Gas Networks Ireland,

EirGrid and ESB Networks to ensure the continued safe and secure supplies of

electricity and natural gas within the State. I say and believe that this work is

being given the highest priority in the national interest at present.

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I further say and believe that these staff working are at present, due to the national

measures put in place to deal with the COVID-19 virus, working remotely which

means that the individuals at issue cannot work as efficiently as they would

otherwise be able to and do not all currently have access to their full paper and

digital files that would be necessary to provide full instructions in these

proceedings.”

10. Mr Brady then prays for an adjournment. In earlier correspondence (which has been

exhibited), it had been suggested that the substantive hearing might be adjourned to a

date in October 2020.

11. The Applicant opposes the adjournment application. The principal grounds for so doing

are set out as follows in its submission of 2 April 2020. (See letter from FP Logue

Solicitors). First, it is submitted that much of what has been identified by Mr Brady as

matters in respect of which the State Respondents “may” wish to file affidavit evidence

does not appear to be factual evidence at all. Mr Brady’s references to the “legal duties”

on the State and the Union in the transition to a low carbon economy, and to the roles of

the various actors under the PCI Regulation, are cited as examples in this regard.

Secondly, it is submitted that, in any event, all these matters, if considered relevant now,

must also have been relevant at the time the decisions were taken which was not very

long ago. Thirdly, it is submitted that Mr Brady has not identified any file or document

that is inaccessible, let alone the person to whom it is inaccessible, the reason for that

inaccessibility, what efforts are being made to restore access and when such access will

be restored.

12. The submission concludes by suggesting that the substantive hearing would be suitable

for a remote hearing.

13. A replying submission has been received this morning (3 April 2020) from the State

Respondents. This consists largely of a legal argument re: jurisdiction. This argument is

summarised at paragraph 15 below.

OVERVIEW OF JUDICIAL REVIEW PROCEEDINGS

14. The nature of the relief sought in these proceedings is such that the extent of the affidavit

evidence required in response will be much less than in most other judicial review

proceedings in the SID List. The principal relief sought in the proceedings is that the High

Court should make a reference to the Court of Justice of the European Union (“the CJEU”)

to determine the validity of the adoption of the 4th Union list of Projects of Common

Interest (“PCI List”). More specifically, the applicant for judicial review seeks to challenge

the inclusion of the Shannon LNG terminal and connecting pipeline in the PCI List.

15. It appears to be common case between the parties that the High Court, as a national

court, does not have jurisdiction to make a determination that the PCI List is invalid. The

parties are, however, in disagreement as to the appropriate procedure by which the

adoption of the PCI List may be challenged. In particular, the State Respondents object

that the Applicant could have brought proceedings directly before the General Court of

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the European Union to challenge the adoption of the PCI List, citing Article 263(4) TFEU.

It is further submitted that the time-limit for the bringing of such proceedings has

expired, and that it is not permissible to institute proceedings before a national court as a

means of circumventing time-limits for challenging the validity of EU acts before the

European Courts. The judgment in Case C-188/92, TWD Textilwerke Deggendorf is cited

in this regard.

16. These objections will, of course, have to be given serious consideration at the substantive

hearing of the judicial review proceedings. In a sense, however, the arguments now

advanced on behalf of the State Respondents prove too much in the context of the

adjournment application. It is evident from these arguments that the resolution of these

proceedings will turn largely on legal, rather than factual, issues. For example, the

question of the appropriate forum before which the validity of the PCI List may be

challenged is quintessentially a legal issue. The outcome of this legal issue will require

careful consideration of the relevant provisions of the treaties, legislation and case law.

Without in any way wishing to diminish the expertise of the Departmental officials, there

is little, if any, by way of factual evidence which will be required from them in order to

allow the High Court to determine these legal issues.

17. Moving on from the jurisdictional issue as to the appropriate forum for determining the

validity of the PCI List, it is evident from the Statement of Grounds that the gravamen of

the Applicant’s case is directed to the decision-making of the European Commission. A

series of criticisms are made in this regard (in particular, at paragraphs (e) 13 to (e) 23).

The Applicant is not inviting the High Court to rule upon these criticisms, but rather, as

explained, in particular at paragraph (e) 24 of the Statement of Grounds, seeks to have

these matters referred to the CJEU.

18. Given this approach on behalf of the Applicant, it is difficult to envisage what affidavit

evidence the State Respondents could usefully advance in relation to these matters. The

most that could be done, presumably, is to put before the High Court, by way of exhibits,

documentation referable to the decision-making of the European Commission. It is

perhaps telling that Mr Brady himself is circumspect: using the qualifying words “to the

extent that it is able and/or privy to same” when describing the evidence that might be

adduced by the State as to the procedure followed at EU level leading up to the

Commission’s adoption of the PCI List.

19. I hasten to add that these comments are made strictly in the context of the adjournment

application, and are not intended to impose any restrictions upon the nature and extent of

the affidavit evidence which the State Respondents may wish to file. The only point being

made is that it is not immediately obvious that much will be required by way of affidavit

evidence, rather than exhibits to affidavits.

20. The proceedings do, of course, go on then to make a number of complaints against the

State Respondents. First, the alleged absence of a clear procedure for the purposes of

obtaining a referral to the CJEU under Article 267 in respect of the validity of acts of the

institutions, bodies, offices or agencies of the European Union is criticised. Again, this is a

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legal issue. The broad outline of the State Respondents’ answer to this complaint is

already evident from the exchange of submission on the adjournment application. As

discussed at paragraph 15 above, the position seemingly being taken by the State

Respondents is that the adoption of the PCI List should have been challenged by a direct

action before the General Court.

21. Secondly, complaint is made that the State Respondents do not appear to have conducted

any, any adequate or any adequate written sustainability assessment prior to their

recommending approval of the Shannon LNG project for the PCI List. As part of its

answer to this aspect of the case, the State Respondents may wish to exhibit

documentation which they say evidences that they had carried out such an assessment.

Alternatively, the State Respondents may wish to advance a legal argument as to the

nature and extent of the obligation, if any, upon a Member State to carry out the

sustainability assessment. These are both matters which can be attended to in relatively

short course.

22. It seems unlikely that the Departmental officials would be required to expend time on the

preparation of new reports or materials. The criticism made by the Applicant is that a

sustainability assessment was not carried out at the relevant time. It is not immediately

obvious that it would be an answer to that complaint to prepare new reports or materials

ex post facto. Again, I hasten to add that these comments are made strictly in the

context of the adjournment application, and are not intended to impose any restrictions

upon the nature and extent of the affidavit evidence which the State Respondents may

wish to file. The only point being made is that it is not immediately obvious that the

officials will be required to engage upon a particularly time-consuming task.

23. Similar considerations would appear to apply to the third complaint made against the

State Respondents. This involves an allegation that the Department failed to comply with

the Climate Change and Low Carbon Act 2015 in making the approval decision. Again,

this complaint is addressed to the manner in which (historic) decision-making had been

carried out. The State Respondents may wish to exhibit such and any materials as had

been generated during the course of that decision-making process. Again, this would not

appear to require time-consuming effort on the part of the officials.

24. The fourth relief concerns reasons and an alleged right of public participation. This,

again, relates to the manner in which the decision-making had been carried out.

25. The final matters raised in the Statement of Grounds address the question of whether the

proceedings have been brought within time, and whether the applicant has standing

(locus standi) to maintain the judicial review proceedings. These are both,

quintessentially, legal issues.

RULING OF THE COURT

26. In ruling upon this adjournment application, the High Court must have regard to its

obligation to ensure that proceedings which have been admitted to the SID List are

determined as expeditiously as possible consistent with the administration of justice. The

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SID List has been established, and judicial resources made available, in order to ensure

that legal proceedings in respect of strategic infrastructure development projects are

determined expeditiously. There is a public interest in ensuring that such proceedings be

resolved, one way or another, promptly. It is in the interest of all stakeholders—including

competent authorities, members of the public, environmental non-governmental

organisations and developers—that this should be done.

27. The need for expedition is especially strong in the present case. The challenge is to the

validity of the inclusion of the Shannon LNG terminal and connecting pipeline in the Union

List of Projects of Common Interest. One of the principal objectives of the EU Regulation

which introduced the concept of a “project of common interest” is that the development

consent process in respect of same should be dealt with expeditiously. See, Article 7(1)

to (3) of Regulation (EU) No 347/2013 on guidelines for trans-European energy

infrastructure, as follows.

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.

2. For the purpose of ensuring efficient administrative processing of the application

files related to projects of common interest, project promoters and all authorities

concerned shall ensure that the most rapid treatment legally possible is given to

these files.

3. Where such status exists in national law, projects of common interest shall be

allocated the status of the highest national significance possible and be treated as

such in permit granting processes — and if national law so provides, in spatial

planning — including those relating to environmental assessments, in the manner

such treatment is provided for in national law applicable to the corresponding type

of energy infrastructure.

28. It would be inconsistent with the spirit of these objectives to allow judicial review

proceedings, which seek to challenge the very validity of the adoption of a specific

development project as a “project of common interest”, to be delayed unnecessarily.

29. Indeed, it is to be noted that the State Respondents themselves seek to raise an

objection on the grounds of delay. More specifically, it is alleged that the proceedings

were instituted out of time. (See paragraph 15 above). Although this objection is not

directly based on Regulation (EU) No 347/2013, it is, nevertheless, indicative of the sense

of urgency which should, properly, attach to proceedings of this type.

30. As against all of this, it has to be acknowledged that Ireland is in an unprecedented

situation as it seeks, as with all other countries, to respond to the coronavirus disease

pandemic. Extraordinary times call for extraordinary measures. The business of all three

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branches of government has been disrupted, as priority is given to measures intended to

ensure public health and safety.

31. This court fully recognises that the relevant officials within the Department have their own

vital role to play in responding to this pandemic. As carefully explained by Mr Brady in his

affidavit, the officials are responsible for security of supply policy in relation to natural gas

and electricity. This court would never do anything which would impede the ability of

these officials to discharge their vital role in this time of national crisis.

32. Having carefully considered the affidavit evidence, the submissions, and the nature of the

claim advanced in these judicial review proceedings, I am not satisfied, however, that

there is any conflict between (i) ensuring that the hearing goes ahead on 30 June 2020,

and (ii) allowing the officials time to carry out their vital role. First, there is an obvious

public interest in ensuring that a challenge to the inclusion of the Shannon LNG project

within the adopted PCI List is determined—one way or another—expeditiously. The very

existence of the proceedings casts a shadow over the proposed project. It will be in the

State’s interest to have the proceedings determined promptly.

33. Secondly, the nature and extent of the work actually required from the Departmental

officials in relation to these proceedings would appear to be considerably less than Mr

Brady might apprehend. As discussed under the previous heading, the resolution of these

judicial review proceedings will turn largely on legal issues, rather than on the

determination of any factual dispute. The principal relief sought is that the High Court

make a reference for a preliminary ruling to the CJEU. It seems to me that this is a case

where the burden of work will fall more heavily upon the lawyers representing the State

Respondents than upon the Departmental officials. Whereas the Department will, of

course, be responsible for instructing the Chief State Solicitor’s Office as to how the

proceedings are to be defended, much of the heavy lifting thereafter will be done by the

solicitors and counsel.

34. Thirdly, it seems that at least part of the rationale for the adjournment stems from

practical or logistical difficulties presented by the relevant officials having to work from

home. Unless the administration of justice is to grind to a halt entirely, however, this

cannot represent a valid excuse for adjourning legal proceedings for a period of in excess

of three months. All of us will have to accommodate ourselves to the new working

environment demanded by the need to respond to the pandemic.

35. I will adjust the timetable so as to afford extra time for the Departmental officials and

their legal representatives to prepare opposition papers. Opposition papers will not now

have to be filed until 12 May 2020. This means, in effect, that the State Respondents will

have had a period of some three months within which to prepare opposition papers. (The

new timetable is set out in full at the end of this judgment).

36. It also occurs to me that at least some of the documentation which the parties may wish

to rely upon at the substantive hearing will be available online. I propose to dispense

with the requirement to formally exhibit such documentation, at least in circumstances

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where the parties can agree that certain documentation is relevant and admissible. This

is also in ease of the Departmental officials.

37. Finally, the court will be flexible as to the precise form which the hearing on 30 June 2020

takes. It seems to me that this is a case which could be dealt with by way of a remote or

virtual hearing. Indeed, subject always to hearing the views of the parties, it occurs to

me that this is a case which might even be capable of being dealt with on the papers only.

CONCLUSION AND FORM OF ORDER

38. The application for an adjournment is, hereby, dismissed. The substantive hearing of

these judicial review proceedings goes ahead, as scheduled, on 30 June 2020.

39. The timetable has been adjusted so as to afford extra time for the Departmental officials

and their legal representatives to prepare opposition papers.

12 May

Opposition papers to be filed

26 May

Applicant’s Submissions to be filed (with any replying affidavit)

9 June

Respondent’s Submissions to be filed

23 June

Papers to be lodged or uploaded online for the High Court

30 June

Substantive hearing (3 to 4 days).

Result: Application to adjourn hearing refused.