The Minister for the Marine, Mr Fahey, is seeking legal advice over the construction of an emergency breakwater at Killiney strand, Co Dublin.
Department of the Marine spokesman Mr Tony Bass said the Minister was seeking advice from the Chief State Solicitor on the legality of Iarnrod Eireann's decision to erect the 15,000 tonne boulder breakwater without first seeking a foreshore licence.
He said the works constituted a clear breach of the Foreshore Act as amended in 1992 and if necessary the Department would consider obtaining an order from the High Court for all works to cease pending the implementation of an Environmental Impact Statement (EIS) and public consultation.
Iarnrod Eireann claims no licence was needed because under the 1846 Railways Act emergency works are given a special priority.
The State-owned company says the breakwater is a temporary emergency solution to the threat to the busy eastern rail corridor from coastal erosion.
Iarnrod Eireann spokesman Mr Barry Kenny said the company had held discussions with Dun Laoghaire-Rathdown County Council and officials from the Department of the Marine before Christmas concerning the breakwater.
"We were told that no permission or licence was needed for the breakwater because of the emergency nature of the works," Mr Kenny said.
The Labour Party's environment spokesman, Mr Eamon Gilmore, said the explanations by Iarnrod Eireann to the Department of Marine and Dun Laoghaire-Rathdown County Council did not add up. "All three agencies maintain that this `emergency remedial work' is necessary to protect the railway lines. This is not an emergency because, according to maps in my possession, these works were being planned as far back as October and, according to reports I have heard, the planning of all this goes back at least six months," Mr Gilmore said.
Mr Gilmore, who is a former Minister of State for the Marine, said a scheme which was being planned over three months did not satisfy the emergency conditions and therefore required a foreshore licence or approval for a coastal protection scheme.
"Either this was a genuine emergency, in which case Iarnrod Eireann should explain why the rail line is still open, exposing passengers to possible risks, or this was a planned scheme which, while urgent, is not an emergency and Iarnrod Eireann has not followed the proper procedures for this kind of work," he said.
He added that it was not acceptable that State companies or agencies could take a short-cut through established procedures for public notification and consultation for works in sensitive coastal areas. Nor was it acceptable that the agencies should have attempted to persuade the public that the beach would be restored to its former condition.
"That would be a physical impossibility. I visited the beach and it has been turned into a building site, with JCBs digging and trawling up the beach surface. It will never be the same again," Mr Gilmore said.