If there is an EU-authorised construction project that requires an ‘environmental impact statement’ for the purposes of the EU’s Directive 97/11/EC, but the environmental information which underpins that statement is then suddenly changed; then when can people go to their local judge and ask him to review this matter of EU environmental law? Must they wait for a planning body to issue a final decision before they can go to a judge? And what should be done in Ireland? People there have already gone to their local judge before the final decision and have asked for an injunction to stop a planning enquiry. The State owned energy company says that this is a frivolous legal action because of course the Irish court must wait for the Irish body to make a determination; consequently, the company wants its litigation costs paid for by the claimant. And while Irish law does allow costs to be awarded in the event of a claim being frivolous, is that Irish exception (and others in Irish costs law) compatible with the principle in the EU Directive and Aarhus Convention that each side bears its own costs? And what should an Irish judge do when another part of the Irish legislation seems to reflect another Aarhus Convention obligation but it is even narrower in scope than the Convention?
The national electricity grids of Member States are frequently ‘interconnected’ in order to allow electricity to pass from one area to another. The quest for interconnection is also part of the EU’s Trans-European Energy Infrastructure.
In this case, there is a proposal to string high-voltage cables between Northern Ireland and the Republic of Ireland. And to keep the project cheap, the cables are not going to be buried.
Unsurprisingly, the anticipated visible blight and the atmospheric and other environmental disturbance that flows from erecting and maintaining 138 kilometres of pylons and the high voltage cables dangling from them, has upset quite a few people.
Undeterred, the formal process of development consent started in June 2015 when the State-owned energy company EirGrid applied to the Irish board of State for approval of the proposed North/South Electricity Transmission Interconnector. The proposal was based on s. 182A of the Irish Planning and Development Act 2000. This formal application marked the transition between the pre-statutory phase and the statutory phase of project consent.
Planning enquiries are on-going in Northern Ireland and the Republic of Ireland alike. However, during the Irish planning enquiry, EirGrid also changed the proposed temporary access routes from those which they had described in their Environmental Impact Statement. This displeased the North East Pylon Pressure Campaign, who brought legal proceedings and requested an injunction to prohibit the planning enquiry.
The problem is that Mr. Justice Humphreys, who is tasked with hearing this case, cannot deal with their application before he knows the extent to which EU law applies. The main unknown issue is whether a person must wait for a final decision of the planning body before he can go to a judge and ask him to reconsider the legality of that decision.
Consequently, Mr. Justice Humphreys has felt obliged to make a preliminary reference to the CJEU. He is concerned about the correct interpretation of the EU’s ‘environmental impact assessment’ Directive 97/11/EC, and the obligations in the 1998 Aarhus Convention, which is also a part of EU law.
He has decided to ask seven questions of the CJEU. The first is about when a decision can be challenged because this point in time has not been stipulated by the Irish legislature. Consequently, the legal issue is whether this omission in the national rules is governed by the obligations in Article 11 of the Directive, which allow people to challenge the substantive or procedural legality of decisions and omissions which are within the scope of the Directive.
If the Directive’s provisions apply, then a second question arises. Namely, when Article 11 of the Directive talks about ‘decisions, acts or omissions’, does that phrase mean it also covers ‘intermediate’ or ‘administrative decisions’? If so, then Article 11(2) of the Directive leaves it up to the Member States to decide when such decisions may be challenged. Unsurprisingly, the Irish State has submitted that in this case – where there is a judicial procedure to determine when a process should be challenged – is a matter that is not affected by the Directive.
However, the judge seems unsure because Article 11, particularly Article 11(4), talks about the need for a procedure not to be ‘prohibitively expensive’ so his third question relates to whether that ‘not prohibitively expensive’ obligation extends to an application to determine whether an application is brought at the correct stage?
Here, a fourth question reared its head. Since the Aarhus Convention also talks about access to administrative or judicial procedures for remedies without that being prohibitively expensive; what should be made of the CJEU’s Grand Chamber ruling in Case C-240/99, Lesoochranárske zoskupenie VLK v. Ministerstvo životného prostredia Slovenskej republiky  E.C.R. I-01255. The CJEU had held that it was the EU which had ratified the Convention so the EU was bound, not the Member States. If that was so, then the judge wondered whether the Aarhus Convention still applied irrespective because this interconnector project was a project authorised under EU law rather than by a national decision.
The fifth question was no less important: to what degree was the Aarhus Convention directly effective? There was no Irish law stopping the applicants from coming to the Irish court when they did.
In that context, a sixth issue arose: costs. The general principle of the Aarhus Convention, EU Directives, and the implementing Irish law, was that each party bore its own costs. However, Irish law had gone further and allowed a court to award costs against an applicant if that claim was vexatious or frivolous. The Irish State-owned energy company was arguing that the pressure group’s claim was indeed vexatious or frivolous because it took the view that the litigation had no hope of success – its basic point being that there was no way for a court to determine an issue before the body which had been charged with determining the issue, had determined it. To this observation, the judge remarked there had been instances in Irish case law when Irish courts had intervened before a planning body had taken a decision, but that case law was purely a matter of national law.
The EU law problem was that national law had made a costs exception where no equivalent exception was to be found in either the Aarhus Convention or the EU Directive. Irish law also indicated that a party could be entitled to its costs where the point was of “exceptional public importance” and where such an award was in the interest of justice in the special circumstances of the case (subs. (4)) or where the party was the applicant and had succeeded in obtaining some relief (sub-s. (2A) inserted by s. 21(b) of the Environment (Miscellaneous Provisions) Act 2001). What to do?
The seventh question also related to the scope of the obligations on a national judge. In the case before him, the national legislation claimed to implement the EU Directive and Aarhus Convention but the Convention’s scope was narrower than the protection afforded under the Directive, and the national legislation seemed to reflect the narrower scope of the Convention. As the judge remarked, the national rules ‘would need to be construed in a manner compatible with EU law where possible’.
However, the particular issue which was causing the judge some difficulty were ‘causality’ rules which were present in Irish law. That is to say, according to the judge, there was a need ‘to show a causative link between the failure to ensure compliance with or enforcement of the statutory requirement and result in damage or likely damage to the environment (see Callaghan v. An Bord Pleanála  IEHC 357)’.
The judge hinted at the odd nature of Irish law after the judgment in Callaghan when he explained: ‘Thus only a final decision to grant development consent, which was alleged to be in breach of a statutory requirement, can satisfy the test as so construed’.
Oddity aside, the judge took the view that the approach being taken in Irish law was ‘significantly narrower than that envisaged by the Aarhus Convention’ so he queried whether Irish law’s requirement of a ‘causative link’ was even compatible with the Aarhus Convention.
Besides asking the CJEU seven questions, he also requested that the CJEU answer them under the CJEU’s expedited procedure. He justified his request by pointing out that the status of the interconnector project was a designated project of common interest for the EU so there was a need to finalise the legal proceedings before him ‘with a certain degree of priority’.
According to the ‘Courts.ie’ website, the Irish High Court has asked:
(i) in the context of a national legal system where the legislature has not expressly and definitively stated at what stage of the process a decision is to be challenged and where this falls for judicial determination in the context of each specific application on a case-by-case basis in accordance with common law rules, whether the entitlement under art. 11(4) of Directive 2011/92/EU to a “not prohibitively expensive” procedure applies to the process before a national court whereby it is determined as to whether the particular application in question has been brought at the correct stage;
(ii) whether the requirement that a procedure be “not prohibitively expensive” pursuant to art. 11(4) of Directive 2011/92/EU applies to all elements of a judicial procedure by which the legality (in national or EU law) of a decision, act or omission subject to the public participation provisions of the directive are challenged, or merely to the EU law elements of such a challenge (or in particular, merely to the elements of the challenge related to issues regarding the public participation provisions of the directive);
(iii) whether the phrase “decisions, acts or omissions” in art. 11(1) of Directive 2011/92/EU includes administrative decisions in the course of determining an application for development consent, whether or not such administrative decisions irreversibly and finally determine the legal rights of the parties;
(iv) whether a national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, should interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in art. 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998 (a) in a procedure challenging the validity of a development consent process involving a project of common interest that has been designated under Regulation No. 347/2013 of the European Parliament and of the Council of 17th April, 2013 on guidelines for trans-European energy infrastructure, and/or (b) in a procedure challenging the validity of a development consent process where the development affects a European site designated under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora;
(v) whether, if the answer to question (iv)(a) and/or (b) is in the affirmative, the stipulation that applicants must “meet the criteria, if any, laid down in its national law” precludes the Convention being regarded as directly effective, in circumstances where the applicants have not failed to meet any criteria in national law for making an application and/or are clearly entitled to make the application (a) in a procedure challenging the validity of a development consent process involving a project of common interest that has been designated under Regulation No. 347/2013 of the European Parliament and of the Council of 17th April, 2013 on guidelines for trans-European energy infrastructure, and/or (b) in a procedure challenging the validity of a development consent process where the development affects a European site designated under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora;
(vi) whether it is open to a member state to provide in legislation for exceptions to the rule that environmental proceedings should not be prohibitively expensive, where no such exception is provided for in Directive 2011/92/EU or the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998; and
(vii) in particular, whether a requirement in national law for a causative link between the alleged unlawful act or decision and damage to the environment as a condition for the application of national legislation giving effect to art. 9(4) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998 to ensure that environmental proceedings are not prohibitively expensive is compatible with the Convention?
There is a preliminary reference already pending before the CJEU about the compatibility of Austrian rules of procedure with the access to environmental justice obligations in the Aarhus Convention; see further, Case C-663/15, Umweltverband WWF – pander to panda access to environmental justice.
The status of administrative decisions and determinations under Irish law, is also present in another preliminary reference which has just been made by the Irish Supreme Court in the area of EU data processing law; see further, Case C-434/16, Nowak – seeking to access his exam script because it is personal data.