A welcome addition to the saga of the Shannon Liquid Natural Gas (LNG) terminal has been announced. Planning permission for the Shannon LNG port facilitating the importation of fracked gas from the USA, which was first awarded in 2008 and renewed in 2018, has been quashed by the Irish High Court. The case was taken by Friends of the Irish Environment (FIE), which also instigated and won Climate Case Ireland, against An Bord Pleanála and Shannon LNG Ltd.
The result of this court case is undoubtedly excellent news for FIE and the Irish environmental movement in general, and indeed a major win in terms of the immediate threat of the LNG terminal being built. The decision of this court will also have far reaching implications for major projects across Europe that require similar renewals.
This achievement is the result of over a decade-long legal battle and stands alongside the tireless work of other environmental groups fighting against the importation of LNF and fossil fuel infrastructure in general. The story of this seismic decision and the context in which it sits in terms of the environmental movement is complex and can be viewed from several different angles including the impact fossil fuel infrastructure has on the local ecosystems and biodiversity.
The consequences of importation of fossil fuel, and in particular fracked gas, on the export countries and the wider implications of fossil fuel infrastructure in terms of emissions and climate change are also highlighted. This court case also shows the different routes that are available to protect against these destructive projects, including EU and national legislation.
The path towards the judgement
The case, heard by the High Court in February 2019, was multi-pronged, with FIE arguing that the State ignored the 2015 Climate Act as well as failed to properly conduct environmental assessments when it granted an extension of planning permission for the LNG port.
In terms of the Climate Act 2015 FIE stated that the climate Act applies to everything that the Board does and that it should have assessed if the project was going to impact targets outlined in the Act. On the flip side Shannon LNG argued that this infrastructure is perfectly in line with the State’s energy policy, citing both the National Mitigation Plan and the National Development Plan to support this.
Consequently, Justice Garrett Simons found that, the fate of the infrastructure project depended on the legality of an extension in planning permission for the port after it expired without conducting appropriate environmental assessments. This argument centered around the fact the proposed LNG port is located adjacent to the Lower River Shannon Special Area of Conservation (SAC) which is protected under the EU Habitats Directive.
This area encompasses habitat types that are of European importance as well as species that are of interest to our European heritage highlighting an important intersection of climate change and biodiversity protection. As this argument depended on an interpretation of EU law Justice Simons referred a number of questions to the European Court of Justice (ECJ).
The ECJ found that An Bord Pleanála should not have granted planning permission without reviewing the environmental impact of the project in the light of the most recent scientific understanding and conservation interests of the area, or without renewed public consultation specifically breaching Article 6(3) of the Habitats Directive. What this means is that planning permission for this project has been quashed specifically due to failing to follow proper procedure to ensure that the project was not a threat to the Special Area of Conservation but not necessarily on the danger this type of project, and the increased emissions that would result, poses to the climate. Further legal challenges relating to the Shannon LNG terminal have been taken by FIE with the climate impact aspect of the project still to be decided.
Technically there is nothing stopping Shannon LNG Ltd reapplying for planning permission although the chances of a successful application must surely be diminished under the weight of this successful challenge and the advancement in climate litigation. So while particular hurdle has been crossed the race for ambitious, wide reaching climate action is still on going.
Planning permission for Climate Chaos
This court battle is not the only adversary that the Shannon LNG port, or indeed fracking in general, has faced in Ireland. In 2017 Ireland voted to ban fracking, a method of extracting natural gas by fracturing rock using high pressure water and sand injections while capturing the gas that escapes. This method of fossil fuel extraction results in widespread environmental pollution and numerous public health concerns. This was a huge win, not only in terms of protection of our biodiversity and our water, soil and air from toxic pollution but also in terms of climate change policies and the fight to keep fossil fuels in the ground. Unfortunately, this particular environmental concern did not extend beyond our shores and consequently did not result in the banning of the importation of fracked gas from abroad or concern about climate change in general.
This hypocrisy was called out in 2019 when Ireland included the Shannon LNG terminal on its Projects of Common Interests list which would allow for accelerated planning and permit granting as well as access to funding to build the project.
Fast forward to the General election in 2020 and the Programme for Government agreed between Fine Gael, Fianna Fáil and the Green Party. This aspirational document, while much disputed, made some good promises on the climate and environmental protection front indicating that the importation of all fracked gas would be off the table as well as the end of exploration in Irish seas. While these good intentions are welcome and, if followed through on, would secure Ireland as a nation which is decidedly against the importation of or trade in fracked gas. Unfortunately, there have been no concrete moves, as of yet, to make this policy statement or to litigate for this climate policy.
Securing the Future
These constant battles for concessions as well as fighting projects individually expend a huge amount of energy and are expensive to both environmental groups and the State, which highlights the importance of broad, unambiguous protections against projects based on their impact on the climate as well as on the local environment.
We have seen through these legal challenges the importance of coherence in climate ambition across all Government policies and legislation. Ambitious words by politicians need to be backed up by equally strong policy documents and implementation. The weakness of the current Climate Act is highlighted by the fact that its strength can be argued away on the back of policy documents that favor fossil fuel infrastructure. The Climate Action and Low Carbon Development (Amendment) Bill 2020 which is currently undergoing pre-legislative scrutiny by the Climate Action Committee will hopefully add to these protections against these high emitting projects. If we have legally binding emissions reductions, building new fossil fuel infrastructure no longer makes sense.
When examining all this in detail we are once again reminded of the importance of developing and implementing policy through an integral ecology lens. Only through this lens can we see clearly how infrastructure can simultaneously threaten biodiversity, water and soil quality and public health in Ireland and abroad as well as contribute to climate change. We need our Government, and we as a country to collectively decide that we can and will keep our climate promises and develop and implement policies that follow through.
The first step in this direction is acting on the promises made in the Programme for Government and definitively closing off all avenues of fracking importation and fossil fuel exploration in Ireland.
The next step is planning for an Ireland where we are no longer captors of the carbon economy but actively creating a more just society, through dialogue, that lives in harmony within our ecological boundaries.