Supreme Court to hear environmental appeal over Project Ireland 2040

High Court had dismissed claim that plan was invalid due to shortcomings in process

The Supreme Court has agreed to hear an appeal containing "novel and important" issues from an environmental group against the lower courts' refusals to overturn the €116 billion Project Ireland 2040 plan for the country.

The High Court dismissed in April 2020 claims by Friends of the Irish Environment (FIE) that the plan adopted at a special Cabinet meeting in Sligo in February 2018 was invalid due to alleged lack of proper environmental assessments and failure to properly address climate change. The Court of Appeal (CoA) affirmed this decision last November.

A three-judge Supreme Court, comprising Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne and Mr Justice Gerard Hogan, determined the appeal met the constitutional threshold for leave to appeal by raising issues of general public importance.

Of significance is the huge level of public capital investment envisaged by the plan and its general implications for the planning system, the judges said in a determination.

Project Ireland has two principal components: the National Planning Framework and the National Development Plan.

FIE's case against the Government, the Minister for Housing, Planning and Local Government, Ireland and the Attorney General seeks to quash the adoption of the plan on grounds of alleged failure to meet the assessment requirements of the Strategic Environmental Assessment (SEA) Directive.

The parameters of the SEA Directive have never been considered by the Supreme Court before, and many of these "novel and important" issues have never been examined by the Court of Justice of the European Union either, said the judges.

At the core of the application seeking leave was a contention the SEA Directive requires both the selected option and the reasonable alternatives for certain plans and programmes to be similarly scrutinised.

FIE claims the selected 2040 plan was analysed extensively, while any reasonable alternatives “were accorded only a cursory assessment”. However, the CoA found that the treatment of the options amounted to a “comparable assessment of the preferred option and the reasonable alternatives”.

The Supreme Court will also hear arguments regarding the SEA Directive’s provision for monitoring “significant environmental effects” of a plan or project.

While the CoA considered the monitoring relates to the implementation of the plan, FIE contends that postponing monitoring to individual projects cannot discharge the assessment obligation in the Directive.

Further, the court will consider FIE’s questioning of the status of the National Development Plan part of Project Ireland 2040 and whether it is a plan or programme on the one hand or a financial or budget plan on the other.

The State respondents disputed the suggestion the case raises an issue of general public importance, supporting the reasoning of the CoA, the judges noted. In any event, they stressed that the development plan portion of the project lies outside the scope of the SEA Directive.