The High Court has struck out proceedings brought by chemical engineer Pat Swords challenging Ireland’s national renewable energy action plan, finding that his case was brought too late. The ruling did not determine whether the plan breached environmental or EU law.
Mr Justice Keane gave judgment on 12 August 2016 on two applications: the State’s motion to strike out the proceedings for delay and Mr Swords’ application for a protective costs order. The case had proceeded by plenary summons after earlier judicial review proceedings were struck out in April 2013, with Mr Swords given liberty to continue by plenary proceedings.
The action challenged the State’s adoption of its national renewable energy action plan (NREAP), which was notified to the European Commission in July 2010 and resubmitted with modifications in October that year. Mr Swords sought declarations and injunctions, alleging failures to comply with the Aarhus Convention and EU law, including requirements for public participation and environmental assessment. The State disputed those claims. It acknowledged that no strategic environmental assessment or environmental impact assessment had been carried out, but argued that neither was required for the plan.
The court found that Mr Swords knew of the plan by 15 October 2010 at the latest and that the grounds for his challenge arose no later than the end of that month. He began judicial review proceedings on 12 November 2012, at least 24 months later. The judge held that the three-month judicial review time limit applied to this plenary action seeking public-law relief. He rejected arguments that EU law prevented its application, and that the State’s motion was misconceived or an abuse of process.
Mr Swords had not applied to extend the time limit. The judge therefore did not consider whether an extension was justified or assess the potential prejudice to the State and third parties. He concluded that the State was entitled to have the proceedings struck out for delay.
On costs, the judge declined to decide whether EU law entitled Mr Swords to a protective costs order. The State had agreed that statutory provisions applied under which each party would bear its own costs. In light of that concession, the judge considered a protective costs order superfluous and did not make one. The judgment records the outcome of the two applications; it does not resolve the underlying claims about the NREAP.