After over a decade of legal action, the European Court of Justice has imposed a penalty of €5 million on State for infringing Directive 85/337 in not carrying out an environmental impact assessment (EIA) before the construction of a wind farm in County Galway. A periodic penalty of €15,000 per day shall also apply until it complies with court orders from 2008.
In 2003, the small rural village of Derrybrien saw the construction of a 70-turbine wind farm, one of Europe’s largest at the time. The operation was carried out by a subsidiary company of the ESB, Hibernian Wind Power. 5.5-metre-deep drains were dug in the area without an EIA, causing a devastating 2km-long landslide. Over half a million tonnes of peat and debris was misplaced from the Slieve Aughty mountains, killing fish, polluting waters and the village has since been at high risk of considerable flooding.
The environmental breach first came to the European Court’s attention in 2008, in European Commission v Ireland (C-261/18) where the State was ordered to undertake retrospective investigations on the issue. After the ruling, Ireland did succeed in introducing new laws to establish a regularisation procedure, enforcing the operators of Irish wind farms to comply with the requirements of the Direct.
Notwithstanding these new laws, 11 years later, neither the wind farm nor the State have given concrete effect to the court’s judgement. November 2019 saw the European Commission bring a second case against Ireland for failure to comply with this legal obligation where these heavy penalties were imposed. The courts also warned that the farm’s operating licence may yet be removed once the assessment is complete.
Martin Collins, spokesman for the Derrybrien Landslide Action Group told RTÉ he is “delighted” with the judgement, claiming the group’s efforts over the years have been vindicated, claiming the matter was a “complete failure on the part of State agencies and the Irish authorities.”
Attrachta Uí Bhroin, environmental law officer at the Irish Environmental Network commented on that case, stating that “if ever there was a need for an example to show how deeply problematic and flawed the State’s position on environmental law is – this morning’s judgement sets that out with knobs on.” Uí Bhroin’s statement is qualified by Ireland’s last place ranking among EU countries for climate action, where the Climate Change Performance Index (CCPI) 2019 concludes existing climate mitigation efforts in reducing carbon emissions “will not enable Ireland to achieve either its EU 2020 or 2030 targets.”
Rob Ó Beacháin – Law Editor