Overview

The High Court (Court) decision in An Taisce — The National Trust for Ireland v An Bord Pleanála & Ors IEHC 254 (Decision), will be of assistance to environmental impact assessors, to legal practitioners and those preparing environmental impact assessment reports (EIARs). It provides some useful guidance on understanding the concept of “indirect effects” under the EIA Directive (2011/92/EU) in the context of Greenhouse Gases (GHGs), particularly “upstream” GHGs, and will assist with decision-making on what scope of GHGs to include in EIARs or Environmental Impact Assessments (EIAs).

Planning Decision

In November 2019, Kilkenny County Council granted planning permission for the construction of a €150 million cheese manufacturing plant (Plant) in Kilkenny. An Taisce, the National Trust for Ireland, appealed to An Bord Pleanála (Board), the Irish planning appeals board.

A  central  part of An Taisce’s appeal, emphasised the importance to be accorded, as part of the planning decision, to that part of national climate policy that recognises the necessity to reduce agriculture-related GHGs and, as part of that, the need to reduce the proportion of national GHGs attributable to the national dairy herd. An Taisce argued that a grant of planning permission for the facility would simply be incompatible with national climate policy and with the achievement of EU and international GHG reduction targets.

In June 2020, the Board granted permission in accordance with the findings of the inspector’s report (Report). The Report included consideration of the indirect effects of the development. As part of that, the Report gave limited consideration to competing arguments about whether the Plant would, if granted permission, result in increased milk production (and if so what level of increase) or, alternatively, whether the Plant’s supply would come from within existing milk production regionally. Ultimately this was not determinative in the final decision as the Inspector ultimately found that effects related to the production of raw material “upstream”, that is, effects related to milk production that would take place on many individual farms (by many hundreds of individual dairy suppliers), would be too “remote”.

An Taisce brought judicial review proceedings before the Court seeking to quash the Board’s grant of permission. The Court delivered its Decision in April 2021.

Indirect Effects

One of the key issues in the case turned on the extent of the Board’s duty to assess, under the EIA Directive, the indirect effects of the project, specifically in relation to the “upstream” effects related to the milk production i.e. off-site from the Plant. Article 2(1) of the EIA Directive requires that in respect of projects likely to have a significant effect on the environment that a Member State’s competent authority must conduct “an assessment with regard to their effects on the environment”; while Article 3(1) states that that assessment is to describe the “direct and indirect significant effects of a project” on specific facets of the environment and on specific environmental media.
Arising from the arguments made by An Taisce, the Court summarised the key EIA-related issue as whether the Board was relieved of the obligation to assess indirect environmental effects under Article 3(1) in the case of indirect effects connected with the supply of the raw materials

• where the production of raw materials itself was not part of the application for planning permission, but, rather, was economically connected to it, and
• in a general context, where the potential increase in production of raw materials for the development could not be quantified and where the locations of such increased raw material production was disparate and dispersed.

The Court held that the decision of the Board was not invalid due to its failure to conduct an assessment of the upstream impacts of milk production, even where it did consider such matters at a broad level without being obliged to.

The Court noted that where the production of raw materials is sufficiently removed from the project and not capable of assessment in site-specific terms, it is not to be considered part of the “project” for the purposes of the EIA Directive or the Habitats Directive. While there will be upstream activities and effects related to many developments, the subject of a planning application, where they are as geographically removed and dispersed as the Plant, the Board was correct to regard them as falling outside the scope and range of effects deemed assessable for the purpose of the EIA Directive. While such disperse upstream effects might be assessed, managed or reduced on a governmental, policy or “programmatic basis”, they fell outside the direct purview of grounds for challenging an individual planning decision.

Word of warning

The Decision will assist those preparing EIARs and conducting EIAs in better understanding the intersection of the EIA concept of “indirect effects” with upstream GHG emissions. However, the Decision is not an involved, detailed discussion of that topic. Its significance rather, lies it in being one of the first such discussions in an Irish context and in a high profile case that has been, to some extent, a lightning rod for the wider contention around the ambition of Ireland’s climate policy when it comes to agriculture. The Decision should not be viewed as authority for scoping-in only direct (onsite) GHG emissions associated with the EIA project. What appears to have influenced the Decision that upstream “raw material” (milk-related) GHG emissions effects did not need to be assessed, was their generation at multiple milk supplier dairy farms across a wide region. The Court regarded those emissions as being “sufficiently removed from the project”. The Decision does not contain wider guidance on “sufficiently removed”. The Decision leaves open the possibility that more site-specific upstream emissions may be assessed in certain circumstances.

Other Notable Findings

Outside the Court’s findings on the adequacy of the EIA, the Decision is notable for two other reasons:

• The distinction the Court drew between the government’s climate policy concerning agriculture-related GHG emissions (which, the Court emphasised was generally, although universally, non-actionable) and “the highly regulated procedure for an individual planning consent”. In this case, the Court remarked that An Taisce’s “grievance is with government policy”.

• The beginnings of a revisiting of the Irish procedural rule where judicial review applicants generally may not raise grounds other than those raised before the environmental or planning authority whose decisions they are challenging. Although the Court did not have to decide the point, it indicated  that it “would have leaned towards” asking the Court of Justice of the European Union (CJEU) whether this Irish domestic procedural rule is compatible with Article 9(2) of the Aarhus Convention.  Article 9(2), while referring to access to justice in environmental matters in respect of persons “having a sufficient interest” (standing), makes it clear that such interest is ultimately determined in accordance with the Convention’s objective of ”wide access to justice”. An Taisce’s challenge to standing did not need to be considered by the Court, however, the Court remarked that a preliminary reference to the CJEU in the future may be required.

It has been reported that An Taisce recently applied to the Court for leave to appeal the Decision, and judgment on this has been reserved to a later date. For further information or to discuss any aspect of the Decision in more detail, please contact a member of the William Fry ESG & Sustainability Practice Group.

Contributed by Richard Breen, Alexandra Drummy, Sean-Patrick Dunne, and Conor Linehan.