Environmentalists seek European court referral for Shannon LNG project

State parties say case ‘profoundly flawed and misconceived as a matter of law’ and should be dismissed

An environmental group has claimed before the High Court that the European Commission invalidly approved the inclusion of the controversial €500 million 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 that 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). That entitled 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 31st, 2019, approving inclusion of the Shannon project in the list. The Commission has been served with the proceedings but has so far opted not to participate.


Main relief

When opening the judicial review proceedings on Tuesday, James Devlin SC, with John Kenny 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 Shannon LNG project does not satisfy the criteria required by the EU regulation on guidleines for trans-European energy infrastructure and that 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”.

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 being “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 list and that its approval failed to comply with the Climate Change and Low Carbon Act 2015.

‘Profoundly flawed’

The State parties contend the case is “profoundly flawed and misconceived as a matter of law” and should be dismissed. It 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 case is listed to run for four days and the judge has indicated he will be reserving his judgment.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times