the 54th communication being assessed by the aarhus convention compliance committee

8/7/2019 The 54th Communication Being Assessed by the Aarhus Convention Compliance Committee

1/15

The Aarhus Convention

The United Nations Economic Commission for Europes (UNECE) AarhusConvention on Access to Information, Public Participation in Decision Making andAccess to Justice in Environmental Matters1 is a key step in strengtheningDemocracy and good governance. The EU ratified the Convention in February 2005,but Ireland, essentially alone in Europe with Russia, has failed to ratify theConvention. In September 2007 the position of the Aarhus Convention onCommunity legal order in Ireland was clarified2. Environment is an area of jointresponsibility between the EU and the Member States and clearly the AarhusConvention should apply in Ireland to the 300 or so Directives in the EnvironmentalSphere, commonly called the Environmental Acquis.

The reality is very different, as is clearly demonstrated with regard to the reportprepared for the Environmental Protection Agency3. Not only is the public deniedaccess to information on the environment, but there is constant dissemination of falseinformation on the environment. This has been extensively documented on the CHAP

(2010) 00645 complaints file, which the EU Commission opened in my name inMarch 2010 relating to infringements with regard to Directive 2003/4/EC, whichimplements Pillar I of the Convention with regard to access to information on theenvironment. Furthermore this Directive also requires active and systematicdissemination of environmental information to the public, which is up to date,accurate and comparable.

Similar problems are occurring in Ireland with regard to Public Participation inDecision-Making (Pillar II), which is often simply bypassed. For instance the planningsystem simply ignores the requirement to provide to the public the main reports andtechnical advice on which the decision is to be made. Instead decisions are madesolely based on the opinions of political appointees to the Planning Appeals Board

(An Bord Pleanala), without adequate documentation of the reasons andjustifications. Public Participation related to plans and programmes on theenvironment requires under Directive 2001/42/EC the preparation of anEnvironmental Report as part of the Strategic Environmental Assessment. Thisassessment provides the potential opportunity to avoid the preparation andimplementation of inappropriate plants, programmes and projects and assists in theidentification and evaluation of project alternatives and identification of cumulativeeffects. In Ireland Strategic Environmental Assessments are simply not done4 or onlypartly done; failing to comply with the requirements of the relevant Directives.5 WhenSubmissions from the public are received, access to them on the websites of therelevant Government Department is denied and they are ignored in the developmentof the resulting plans and programmes.

1http://www.unece.org/env/pp/

2http://www.unece.org/env/pp/compliance/C2006-

17/Response/ECresponseAddl2007.11.21e.doc

3http://www.environmentaldemocracy.ie/pdf/finalreport.pdf

4As determined by my appeal to the Commissioner for Environmental Information, none has

been completed for the Renewable Energy Programme in Ireland (37% of Irelands electricityto be generated by wind):http://www.ocei.ie/en/DecisionsoftheCommissioner/Name,12832,en.htm

52001/42/EC, 2003/35/EC


2/15

Even more disturbing is that the development of polices in Ireland clearly ignores thecore principles of the Environmental Acquis, for instance the current Waste Policy issimply a cynical and illegal attempt to force Waste to Energy facilities out of businessthrough excessive levies, thereby leaving the market place for the MechanicalBiological Treatment systems preferred by the Green Party Minister. Thedocumentation for this Policy6, was prepared by the same consultants which preparepolicy for Greenpeace7. Only by my appeal to the Commission for EnvironmentalInformation were the Submissions received posted on the website8. The responsesfrom the Environmental Protection Agency (EPA) and County & City ManagersAssociation, among others, clearly outline the failings of this Policy with regard to theEnvironmental Acquis. However, this has been ignored with the publishing of the Billto introduce the levies on Waste to Energy9. Seemingly to head off any legalchallenge, Minister Gormley has been told by Attorney General Paul Gallagher SC,that amendments to the Bill " will be required before enactment" to ensure it complieswith the EU's revised Waste Framework Directive, adopted in 2008.

If we consider the final pillar of the Aarhus Convention (Pillar III), Access to Justice,the UNECE Aarhus Convention Compliance Committee10 has recently found that theUnited Kingdom does not comply with the necessary provisions of the Conventionwith regard to Access to Justice. However, the costs and timescales for Access toJustice in the United Kingdom are far lower than in the Republic of Ireland, not tomention the capricious nature of the Irish Judiciary, who are clearly not trained inEnvironmental Legislation. The reality in Ireland is that to take a Court Case againstthe Administration, one could easily lose all of ones assets.

The Aarhus Convention Compliance Committee:

http://www.unece.org/env/pp/pubcom.htm

6International Review of Waste Management Policy and Environmental Report for Section 60

Capping on Incineration (note no Strategic Environmental Assessment was done for the otheraspects of the draft Policy): http://www.environ.ie/en/Environment/Waste/PublicConsultations/

7Eunomia and TBU:

http://www.greenpeace.org.uk/files/pdfs/migrated/MultimediaFiles/Live/FullReport/5574.pdf8http://www.environ.ie/en/Environment/Waste/PublicConsultations/SubmissionsReceived/

9http://www.merrionstreet.ie/index.php/2011/01/gormley-welcomes-publication-of-

environment-miscellaneous-provisions-bill-2011/

10http://www.unece.org/env/pp/ccBackground.htm


3/15


4/15


5/15


6/15


7/15


8/15


9/15


10/15

Communication to Aarhus Convention Compliance Committee by Pat SwordsBE CEng FIChemE CEnv MIEMA

I. Information on Correspondent

Pat Swords BE CEng FIChemE CEnv MIEMA10 Hillcourt RdGlenagearyCo. DublinIreland

00353-1-443 4831 / 00353-1-2852768

[email protected]

II. Party Concerned

European Community

III. Facts of the Communication

The Republic of Ireland is progressing a massively expensive renewable energyprogramme of predominantly wind energy, see for instance announcement inOctober 2008:

Minister for Environment, John Gormley T.D. has announced a revisedambitious target for renewable penetration in the electricity sector. The newtarget of 40% is a significant increase from the previous goal of 33% andexceeds considerably both current EU targets of 20% and the UK's currenttarget of 15%.

The Minister said: One of the most effective ways of reducing our nationalgreenhouse gas emissions is to generate as much electricity as possible fromrenewable sources rather than from fossil fuels. The previous Governmentadopted a target that 33% of electricity consumed would be from renewablesources by 2020. Today I can confirm that the Government has now agreed,on the recommendation of my colleague, the Minister for Communications,Energy and Natural Resources, Eamon Ryan, T.D. to increase this target to40%. The target is underpinned by analysis conducted in the recent All IslandGrid Study which found that a 40% penetration is technically feasible, subject

to upgrading our electricity grid and ensuring the development of flexiblegenerating plant on the electricity system.

The capital costs alone of this programme at over 30 billion are staggering.Furthermore at the EU damage cost for carbon dioxide of 9 per tonne, theenvironmental damage avoided by implementation of this project amounts to littlemore than 36 million per year. Sadly the same reduction in greenhouse gasemissions could have been achieved for less than 1/30th the cost by properimplementation of waste to energy plants and biogas projects. However, these wereobstructed by the Administration.

Furthermore this programme has never been through the process of StrategicEnvironmental Assessment (Directive 2001/42/EC). Neither has there ever been anycost / benefit studies or consideration of alternatives completed for this programme.


11/15

Under Pillar I of the Aarhus Convention it took me a complete year to document thisfact, in doing so having to go to appeal and investigation by the Commissioner forEnvironmental Information. See decision CEI/09/0016 in regard to the Department ofCommunications. Energy and Natural Resources on the website below and asattachment:

http://www.ocei.gov.ie/en/DecisionsoftheCommissioner/

The implementation of Directive 2001/77/EC on electricity from renewable sources inIreland has been nothing but a complete Wind Energy programme. According toEirGrid11 chief executive Dermot Byrne in March 2010 there were currently 1,260MW of wind energy connected to the Irish grid. In addition, there are 1,300 MW underconstruction and a further 3,990 MW would be sanctioned under the next round ofallocations.

The Growth of Renewable Capacity for Electricity Generation in Ireland 2004 to2009

The Department of the Environments own website is clear about StrategicEnvironmental Assessment (SEA)(http://www.environ.ie/en/DevelopmentandHousing/PlanningDevelopment/EnvironmentalAssessment/) and the implementation of Directive 2001/42/EC in Ireland underthe 2004 Regulations. The Directive applies across a wide range of sectors, includingenergy. Furthermore wind energy developments are listed in the Directive onEnvironmental Impact Assessment (85/337/EEC as amended) as requiringenvironmental impact assessment. So a programme above of such comprehensiveinstallation of wind energy is subject to the requirements of a Strategic EnvironmentalAssessment. If we consider the Aarhus Convention itself, then this is addressed byArticle 7.

Despite the complete absence of compliance with public participation in decisionmaking (Pillar II of the Aarhus Convention), the EU Commission approved the REFITI programme for financial support of this programme in September 2007 (State aid N

11The Irish State owned grid operator


12/15

571/2006 Ireland: RES-E support programme, see attached). This was the mainfinancial support mechanism for this programme.

In March 2010 the EU Commission further approved 110 million for theinterconnector project between Ireland and the UK.

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/231

Successive studies have shown that there is no economic justification to this project:

See the Submission by the Irish Academy of Engineering to the JointOireachtas (parliament) Committee on Climate Change and Energy Securityin June 2009:http://www.oireachtas.ie/viewdoc.asp?fn=/documents/Committees30thDail/J-Climate_Change/Submissions/document1.htm

The in-depth review completed by the Finnish Engineering Group Poyry in

Juky 2009 on the proposed UK and Irish Wind Energy Programme:http://www.poyry.com/index_cases/index_cases_12.html

An in-depth study by the Bremer Energie Institut in July 2010:http://www.bremer-energie-institut.de/download/bewp/bewp02.pdf

It is clear that the sole justification of this project is as a key component of this Irishwind energy programme.

http://debates.oireachtas.ie/DDebate.aspx?F=CLJ20100915.xml&Page=1&Ex=53#N53

Furthermore a request by Jerry Waugh, Chartered Engineer, to the UK Authoritiesunder the Environmental Information Regulations, 2004 (Pillar I of the AarhusConvention), see FOI Request 10/1870 attached, demonstrated that noarrangements had been made in the UK for exporting and importing wind energy onthis system.

The EU Commission is therefore directly funding to the tune of 110 million a keyelement of a programme which has not been subject to the proper public participationin decision making (Pillar II of the Aarhus Convention).

IV. Nature of Alleged Non-Compliance

The Republic of Ireland has failed to ratify the Aarhus Convention. There areconsiderable breaches of the EU Environmental Acquis occurring in Ireland, whichare unfortunate, but cannot be dealt with through the Aarhus Convention ComplianceCommittee. However, the European Community is a full party to Convention sinceFebruary 2005. It is clearly supporting, both by means of direct funding and byapproving state aid, the renewable energy programme in Ireland. This support isbeing provided in spite of the fact that the programme has failed to comply with therequirements on Public Participation in Decision Making (Pillar II of AarhusConvention). Furthermore, this programme fails also to comply with Pillar I of theAarhus Convention, as public bodies in Ireland are failing to provide key informationon this programme on request and routinely engaged in dissemination of false

information on the environment in relation to this programme, see for examples


13/15

Decisions CEI/09/007 (IDA and attached clarification), CEI/10/004 (Eirgrid andattached clarification), CEI/10/0008 (University College Dublin) below.

http://www.ocei.gov.ie/en/DecisionsoftheCommissioner/

Finally with regard to Pillar I of the Aarhus Convention and the EuropeanCommission it is necessary to point out that the recent Renewable Energy ActionPlan for Ireland prepared for the EU Commission, see below, as per other MemberStates, simply does not quantify any environmental benefits, such as greenhousegas reductions, any alternatives considered to achieve these benefits or any detailsrelated to Public Participation.

http://ec.europa.eu/energy/renewables/transparency_platform/action_plan_en.htm

V. Provisions of the Convention relevant for the Communication

Requirements related to Article 7 on Public Participation concerning plans,programmes and policies related to the environment have not been adhered to.Furthermore Article 5 on Collection and Dissemination of Environmental Informationhas not been complied with, as the Irish Public has been not been informed of thekey facts on this programme and instead routinely disseminated false information onthe environment related to this programme by the Irish Administration. Despite theseclear breaches of the terms of the Aarhus Convention, the EU Commission hasapproved and directly funded this programme. Furthermore the EU Commission isfailing with regard to its requirements for Article 5 as the recent Renewable EnergyAction Plans prepared for the EU Commission, which outline how 20% of EuropesEnergy is to be obtained from renewable sources by 2020 (a value in excess of 100

billion Euros per year), do not provide any details of environmental benefits oralternatives considered.

VI. Use of Domestic Remedies

For more than two years I have been highlighting the major problems with thisrenewable energy programme, particularly the complete breach of the principle ofproportionality and the failure to address the costs / benefits and alternatives. On the13th October 2008 I submitted a paper on the folly behind Irelands wind energyprogramme to the Joint Oireachtas Committee on Climate Change and EnergySecurity. In June 2009 I submitted a further Submission to the Joint OireachtasCommittee on Climate Change and Energy Security:

http://www.oireachtas.ie/viewdoc.asp?fn=/documents/Committees30thDail/J-Climate_Change/Submissions/document1.htm

In January 2010 the EU Ombudsman, who does about 300 detailed investigations ayear, started a detailed investigation (2587/2009/JF) in my name related to theinfringements of Environmental and Energy Legislation in Ireland. Currently this isunder review with a decision not expected until the end of the year by the earliest.(See file on EU Ombudsman attached).

In March 2010 the EU Commission opened a formal complaint investigation (CHAP

(2010) 00645) in my name related to compliance with EU Environmental Legislation.In November 2009 I contacted the Garda Bureau of Fraud Investigation related to thesystematic failures of senior elected and non-elected officials to comply with the


14/15

legislation on the statute books and a complaint file (FB11/242.09) was opened in myname.

I repeatedly contacted the EU Commission with regard to the dreadful situation ofnon-compliance with the EU Environmental Acquis in Ireland and the renewableenergy programme in particular. However, they have been consistently unwilling toaddress the issues with regard to renewable energy. In particular the EUOmbudsmans European Code of Good Administrative Behaviour has simply beenignored: http://www.ombudsman.europa.eu/resources/code.faces . See for examplecorrespondence from September 2010 as attachment.

Finally, I repeatedly request information from the Irish Authorities under the Accessfor Information on the Environment regulations (Pillar I of Aarhus Convention Directive 2003/4/EC). However, I have consistently not been provided with theanswers requested. These requests have then been brought to Appeal to the Officeof the Commissioner for Environmental Information (see:http://www.ocei.gov.ie/en/DecisionsoftheCommissioner/). The Commissioner has

delivered over four decisions in relation to these requests generally in favour of theauthorities. The reason for this is that the information requested does not exist thisis in spite of the fact that the Irish Authorities are required under EU Legislation(Directive 2003/4/EC) to develop and disseminate this information examples fromthe Decisions of the Commissioner include: Request for the Strategic EnvironmentalAssessment in relation to renewables programme, request for Cost Benefit Analysisin relation to renewables programme, request for information regarding the economicimpacts of the wind energy programme, its costs, subsidies required for job creationand industrial grants, resulting electricity prices, loss of competitiveness in othermanufacturing sectors and resulting job losses, etc.

VII. Confidentiality

I have no requirement to keep any of the material confidential.

VIII. Attachments

Commission Decision on State Aid N 571/2006 (REFIT I Programme)

Environmental Information (Zip file)o CEI/09/0016 Decision from Commission of Environmental

Information Re DCENRo Clarifications related to DCENRo Clarifications related to IDAo Clarifications related to Eirgrido FOI Request 10/1087 Jerry Waugh

File on EU Ombudsman (Zip file)o Cover Letter April 2010o Final Submission on Complaint Ref 2587/2009/JF May 2010o Bringing the Irish Administration to Heel

Correspondence to EU September 2010

o E-mail to EU Commission requesting a meeting 31/8/2010o Letter to the EU Re Aarhus and requesting a meeting


15/15

o Proposed Agenda for meetingo Reply from the EU Commission DG Energy on statements wrongly

attributed.o Eirgrid statements on windo E-mail to EU Commission on Decision on Appeal

VIX Summary

The renewable energy programme in Ireland has not been subject to the properPublic Participation in Decision Making procedures (Pillar II of Aarhus Convention).Furthermore there has been a failure by the Irish Administration to disseminate keyinformation on the environment related to this programme and consistent evidence ofdissemination of false information on the environment with regard to this programme(Pillar I of Aarhus Convention). The EU Commission has both approved and directlyfunded this programme. It has also failed (Pillar I of the Aarhus Convention) toensure proper provision and dissemination of information related to theenvironmental benefits, such as greenhouse gas reductions, and alternatives

considered related to this massively expensive programme.

X Signature

the 54th communication being assessed by the aarhus convention compliance committee

Documents