by Bishop Hill
Nov 18, 2012 Energy: wind
Readers may remember Pat Sword's challenge to the legality of the Irish government's green energy policies on the grounds that the public consultation required under the Aarhus Convention had not taken place.
Pat emails with an update
I was as a lay litigant in Monday in the Irish High Court at the request for leave stage for a Judicial Review of the National Renewable Energy Action Plan and the REFIT funding scheme, in which the relief sought was for (a) an Order of Certiorari (a Judicial Review); (b) a Declaration that it was unlawful to grant planning permissions and award funding without [corrected 1.50pm BH] the proper public participation in decision-making, namely the Strategic Environmental Assessment and Article 7 of the Convention and; (c) a protective cost order. I explained to the judge in the morning that there was a window of opportunity to lodge an application for a Judicial Review of the Irish National Renewable Energy Action Plan and REFIT funding scheme within three months of the UNECE decision, which so far the Department has ignored. He was very interested, asked me what my interest was in the matter - I explained the major financial costs of the programme, the resulting soaring energy prices and how it would have a very negative effect on inward industrial development, on which I made my livelihood. He was happy with that and requested he be provided with a chance to read the documentation over lunch and that he would see me first thing at 2 O'Clock.Then Justice Peart read the documentation over his lunch break and came out in the afternoon actually 'singing praise' for their content and the way they were presented. He explained that he had read them all, found them comprehensive and to the point, they had addressed significant points of law, to which leave would need to be granted in a Judicial Review. I now have leave to proceed further with the application for the Judicial Review in relation to the reliefs sought in paragraph (d) of the application, i.e. the three above. The Court date is set for the further hearing on the 15th January. The initial application was ex-parte as per Order 84 of the High Court, so I have since prepared the Notice of Motion and served it and the Court Order on the State Solicitor's office.He also raised the issue as what I considered by way of protective cost order, pointing out that under Section 50B of the planning acts he has the discretion to award costs. I pointed out that I was referring to Article 9(3) of the Convention and not prohibitively expensive. He immediately agreed with this point and that there was an imminent ruling in the European Court on 'not prohibitively', looking at me and asking to confirm that I knew about this, as I seemed to be so knowledgeable on the subject. I confirmed that I knew and that it would be unrealistic for me to be able to fund this upfront. He was then clear that on the 15th January he would also be dealing with the issue of 'not prohibitively' as per Article 9 (3) of the Convention.It appears that such a situation has not happened before in Irish law!