On 30 March 2021, Mr Justice Garrett Simons delivered a judgment in respect of Friends of the Irish Environment CLG v Minister Communications, Climate Action and the Environment, Ireland and the Attorney General (Shannon LNG Terminal)  IEHC 177.
This was the second Judgment in a challenge brought by Friends of the Irish Environment ("the Applicant") against a decision by the Irish Government to include the Shannon LNG terminal and pipeline in a list of “projects of common interest” under Regulation (EU) No 347/2013 on guidelines for trans-European energy infrastructure ("the Ten-E Regulation").
Simons J previously decided in his principle Judgment ( IEHC 383) delivered on 14 September 2020, that the only justiciable issue was the validity of the Ten-E Regulation made by the European Commission, and that a national court does not have jurisdiction to determine this controversy.
Judicial Review Proceedings
The Applicant's second argument which was the subject of this Judgment, was that the Irish State has a form of “veto” over the inclusion on the EU list of projects of any project which is located within its territory. This veto arises under Article 172 of the TFEU and is reflected under article 3(3)(a) of the TEN-E Regulation. The Irish State made a “decision” not to exercise this veto in the case of the Shannon LNG terminal, which Friends claims represents a breach of the State’s obligations under the Climate Action and Low Carbon Development Act 2015 ("the 2015 Act").
Ultimately, the Court found that it was not possible to consider the merits of the Applicant’s secondary argument without engaging in a collateral challenge to the assessment carried out at the EU level, which, in turn, amounts to an indirect attack on the validity of the Ten-E Regulation. Simons J stated that;
"The ambition of the Applicant’s secondary argument is the same as its primary argument, namely to set aside the delegated regulation which adopted the EU list of projects of common interest. This ambition cannot be achieved in these proceedings, taken as they are before a national court, for the jurisdictional reasons explained in detail in the principal judgment. Any challenge to the validity of the delegated regulation should have taken the form of a direct action before the General Court pursuant to Article 263 TFEU."
Furthermore, in considering the Applicant's argument that the State breached its obligations under the 2015 Act, Simons J found that there was no statutory obligation on the Government, in the exercise of its executive power under the Constitution, to have regard to policies such as the national mitigation plan nor to the furtherance of the national transition objective. This follows from the fact that the definition of “relevant body” for the purposes of section 15 of the 2015 Act does not include "the Government". This was interpreted as a deliberate distinguishing between "the Government" made up of Ministers exercising executive powers and individual "Ministers" who had specific statutory powers.
Simons J found that whilst the Minister for Climate Action in deciding whether to grant a development consent might be subject to the section 15 of the 2015 Act, this did not extend to restricting the Government in its external relations.
The Court dismissed the Applicant's judicial review in its entirety, stating that the Applicant had not established any legal basis for the reliefs sought.
The full judgment of Simons J can be found here.