RESS RELEASE: Peat Power Plant Permission Revoked

Friday October 21, 2016 21:29

by foie - Friends of the Irish Environment

The confirmation by the courts that the Edenderry Power plant permission should have considered the indirect impacts of the extraction of 1.2 million tons of peat a year vindicated environmentalists’ legal challenges to the continued operation of the plant.

The challenges to the permission to extend the life of the plant beyond 2016, taken in 2014, resulted in the final quashing of the permission last week by Justice Michael White. A stay on the order, which requires the decommissioning of the plant, has been granted by the Courts until April 2017 in order that a ‘fall back’ application for its continuance may be considered by An Bord Pleanala.

However, while admitting An Taisce’s case that indirect effects of the extraction of the fuel should have been considered as part of the environmental impact assessment [EIA] required by law, he ruled against FIE who brought a parallel case over the failure to consider the impacts through Appropriate Assessment [AA] under the Habitats Directive.

The argument advanced by An Bord Pleanala to grant permission without an AA was that the burden of proof rested on FIE to show the potential impacts the extraction of this peat would have on areas protected by the Habitats Directive. Justice White upheld this view. But this is the basis of Irish criminal law [‘incumbit probatio qui dicit, non qui negative’ - the burden of proof rests on the accuser, not on the defence].

The requirement under European law is that the competent authority (An Bord Pleanala in this case) must itself rule out any potential impacts on the best available scientific evidence. This test is detailed in Article 6 of the Habitats Directive and in numerous European Court of Justice rulings.

In order to discharge the onus of proof, best scientific advice is the only advice that can overturn the presumption against Development that arises on Sites that are subject to the Habitats Directive.

In fact Bord na Mona’s [the national agency for peat extraction and power] ‘fall back application’ to the planning authorities does consider the impacts of peat extraction under both the EIA and AA regimes in the knowledge that they were likely to be required to do so by our challenges.

And yet FIE will be obliged to seek leave to appeal the Court’s ruling or seek to have the matter referred to the European Court for advice for an issue that is as plain as nose on the Honourable Justice’s face. We lost our case because we failed to prove adverse impact when the law does not require us to do so. [Our attempt to do this in the course of the case was ruled inadmissible by Justice White since only matters that were available to the Appeals Board at the time could be considered!)

FIE was one of a group of Irish environmentalists who took a petition in 2000 to the European Parliament opposing the construction of these new power plants in Ireland. Now, 15 years later, in spite of all our efforts, we are being told we must wait another 15 years – until 2030 – before the closure of these plants.

See FIE’s other work, including satellite and aerial surveys of sites of hundreds of hectares of unauthorised industrial extraction from raised bogs’ Have a look at our other legal and administrative challenges – including dramatic photographs - which have led to soon to be announced Government proposals to exempt large scale peat extraction from planning controls, now that we have proved they planning permission is required. Be careful what you ask for.

ENDS

Contact: Tony Lowes 353 (0)27 74771 / 353 (0) 87 2176316

[email protected]

Legal judgments

Edenderry EIA Judgment
http://friendsoftheirishenvironment.org/images/pdf/HC-j...y.pdf

FIE Edenderry AA Judgment
http://friendsoftheirishenvironment.org/images/pdf/HC-j...6.pdf

Background
http://www.friendsoftheirishenvironment.org/peat

Photos
http://www.friendsoftheirishenvironment.org/peat/peat-s...ssion

Areal Survey
http://www.friendsoftheirishenvironment.org/images/peat...2.pdf

Satellite Survey
http://www.friendsoftheirishenvironment.org/peat/nation...study