The High Court dismissed Friends of the Irish Environment’s judicial review challenge concerning the inclusion of the proposed Shannon LNG terminal and connecting pipeline on the European Union’s list of projects of common interest.
In a judgment delivered on 30 March 2021, Mr Justice Garrett Simons said the applicant had not established a legal basis for the relief it sought. The court had previously ruled that it lacked jurisdiction to determine a challenge to the validity of the European Commission’s delegated regulation adopting the list. In this judgment, it rejected the applicant’s remaining domestic-law arguments and concluded that they could not be separated from that challenge.
The environmental group argued that the Irish State had chosen not to veto the project’s inclusion, and had failed to comply with the Climate Action and Low Carbon Development Act 2015. It said the State was required to consider the statutory objective of moving to a low-carbon, climate-resilient and environmentally sustainable economy. The judgment records the applicant’s claim that the State had made a successful representation on 2 July 2019 to have the terminal added to the list after it was excluded from an initial draft.
Mr Justice Simons said the alleged domestic-law breach was being used to seek the same result as the original challenge: setting aside the EU list insofar as it concerned the terminal. A national court could not decide that question indirectly by reviewing an earlier step in the process, he said. The judgment noted that a challenge to the validity of the delegated regulation should have been brought directly before the EU General Court.
The court also considered whether section 15 of the 2015 Act applied to the Government when exercising the State’s external-relations powers. It held that the Government was not included in the Act’s definition of a “relevant body”, and that neither section 15 nor section 4(12) applied to the Government’s decision whether to exercise the veto. The court therefore did not address the applicant’s pleaded arguments about reasons or participation.
The court said the respondents were prima facie entitled to costs because they had been entirely successful, but that the costs question remained open. The case was listed for final orders on 23 April 2021, when the applicant could make submissions seeking a different costs order. The judgment records that the applicant intended to appeal the earlier jurisdictional ruling.