State fined €5m for failure to conduct an Environmental Impact Assessment of Derrybrien Windfarm

Author: Patrick Reilly and Zoe Richardson

November 18, 2019

The Court of Justice of the European Union (‘’CJEU’’) has fined the State €5m for its failure to carry out an environmental impact assessment (‘’EIA’’) in respect of the 70 turbine Derrybrien windfarm in Co. Galway. The State was ordered to carry out an EIA on the development over a decade ago following the ruling in 2008 in Commission v Ireland C-215/06

The State has also been ordered to pay a further €15,000 a day for every day the judgment remains unimplemented.

Background

In October 2003, a landslide at the wind farm caused severe damage to the local river systems, resulting in significant fish kill, affected the nearby water supply and impacted agriculture in the area.

Following this, the local community presented a report to the European Commission in 2004, ultimately resulting in the 2008 judgment of the CJEU where it found that Ireland had infringed EU law by granting permission for the windfarm without a prior EIA having been carried out.

In response, the State enacted the Planning and Development (Amendment) Act 2010. Part XA of this Act, in particular Sections 177B and 177C, provides for the regularisation of development consents granted in breach of an obligation to conduct an EIA (“the substitute consent procedure).

Despite the State’s attempts to regularise the wind farms compliance with the EIA Directive through the above procedure, the Commission determined that the State had failed to carry out the required assessment and the matter recently came back before the CJEU.

Arguments of the State

The State argued:

  • That it had introduced the substitute consent procedure, however, it could not compel the wind farm operator to apply for this. This argument was despite the fact that the operator of the windfarm is a wholly owned subsidiary of a semi-state entity.
  • The principles of legal certainty and protection of legitimate expectations preclude the State from revoking the planning permission. The State argued that the time limit for challenging the permission under national legislation has long since passed and therefore the permission granted is final.

CJEU Decision

The CJEU held that:

  • Ireland had failed to take all measures necessary to comply with the 2008 judgment in Commission v Ireland C-215/06;
  • A Member State cannot rely on provisions in its legal system to justify a failure to observe obligations arising under EU law. (Commission v Greece C-378/13);
  • The planning permission cannot be lawfully authorised simply due to the fact that national time limits for challenging the permission has passed: (Stadt Wiener Neustadt C-348/15). Moreover, in the circumstances, the withdrawal of this type of permission is, in principle, permitted: (Commission v united Kingdom C-508/03).
  • Every organ of the Member State is required to take all necessary measures to remedy the failure to carry out an environmental impact assessment.

The Court clarified that the EIA conducted now must take into account not only the future impact of the wirndfarm but all the environmental impact from the time of its completion.

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