The High Court rejected Martin Harrington’s challenge to amendments made by the Environmental Protection Agency (EPA) to Shell E & P (Ireland) Limited’s licence for a gas refinery and combustion installations in County Mayo. The judgment was delivered by Mr Justice Barrett on 30 May 2014 in judicial review proceedings. The court found the case was out of time insofar as it challenged the continued existence of the original licence, and rejected the remaining grounds described in the judgment. It did not quash the EPA’s January 2014 amendment.
The EPA granted Shell an integrated pollution prevention and control (IPPC) licence in 2007. In June 2013, it granted a revised licence after Shell sought a review linked to an agreement with the Erris Inshore Fishermen’s Association to move the treated-water discharge point farther offshore. Harrington successfully obtained an order quashing that revised licence on 15 October 2013, with the EPA’s consent. The EPA subsequently told him that it considered the 2007 licence to remain in force.
On 6 January 2014, the EPA amended the 2007 licence under section 82A of the Environmental Protection Agency Act to bring it into conformity with the Industrial Emissions Directive. The court held that quashing the 2013 revised licence meant the 2007 licence took force again when the quashing order was made. It reasoned that this interpretation avoided an unintended gap in which the refinery would have no licence. The court also held that Harrington had been told in October 2013 that the EPA considered the original licence to remain in force, but did not bring proceedings within the applicable three-month period. His challenge to that position was therefore out of time.
The judge further ruled that attempts to question the validity of the 2007 licence were an impermissible collateral attack and outside the time limit in section 87(10) of the Act. The court said the claim that the EPA had failed to give reasons for its January decision had no merit: although the notification letter did not contain the reasons, the attached amendment document did. It also rejected claims that Harrington had been denied fair procedures or a legitimate expectation of consultation. The court noted that section 82A did not provide for public consultation on this technical amendment process.
The court found no error on the face of the January decision and said neither an environmental impact assessment nor an appropriate assessment was required before the section 82A amendment. The judgment records that Shell had applied for a further licence review in February 2014 and that the application was then before the EPA; Harrington could make submissions in that process.