The Aarhus Convention

The United Nations Economic Commission for Europe’s (UNECE) Aarhus

Convention on Access to Information, Public Participation in Decision Making and
Access to Justice in Environmental Matters1 is a key step in strengthening
Democracy and good governance. The EU ratified the Convention in February 2005,
but Ireland, essentially alone in Europe with Russia, has failed to ratify the
Convention. In September 2007 the position of the Aarhus Convention on
Community legal order in Ireland was clarified2. Environment is an area of joint
responsibility between the EU and the Member States and clearly the Aarhus
Convention should apply in Ireland to the 300 or so Directives in the Environmental
Sphere, commonly called the Environmental Acquis.

The reality is very different, as is clearly demonstrated with regard to the report
prepared for the Environmental Protection Agency3. Not only is the public denied
access to information on the environment, but there is constant dissemination of false
information on the environment. This has been extensively documented on the CHAP
(2010) 00645 complaints file, which the EU Commission opened in my name in
March 2010 relating to infringements with regard to Directive 2003/4/EC, which
implements Pillar I of the Convention with regard to access to information on the
environment. Furthermore this Directive also requires active and systematic
dissemination of environmental information to the public, which is up to date,
accurate and comparable.

Similar problems are occurring in Ireland with regard to Public Participation in

Decision-Making (Pillar II), which is often simply bypassed. For instance the planning
system simply ignores the requirement to provide to the public the main reports and
technical advice on which the decision is to be made. Instead decisions are made
solely based on the opinions of political appointees to the Planning Appeals Board
(An Bord Pleanala), without adequate documentation of the reasons and
justifications. Public Participation related to plans and programmes on the
environment requires under Directive 2001/42/EC the preparation of an
Environmental Report as part of the Strategic Environmental Assessment. This
assessment provides the potential opportunity to avoid the preparation and
implementation of inappropriate plants, programmes and projects and assists in the
identification and evaluation of project alternatives and identification of cumulative
effects. In Ireland Strategic Environmental Assessments are simply not done4 or only
partly done; failing to comply with the requirements of the relevant Directives.5 When
Submissions from the public are received, access to them on the websites of the
relevant Government Department is denied and they are ignored in the development
of the resulting plans and programmes.

1
http://www.unece.org/env/pp/
2
http://www.unece.org/env/pp/compliance/C2006-
17/Response/ECresponseAddl2007.11.21e.doc
3
http://www.environmentaldemocracy.ie/pdf/finalreport.pdf
4
As determined by my appeal to the Commissioner for Environmental Information, none has
been completed for the Renewable Energy Programme in Ireland (37% of Ireland’s electricity
to be generated by wind):
http://www.ocei.ie/en/DecisionsoftheCommissioner/Name,12832,en.htm
5
2001/42/EC, 2003/35/EC
Even more disturbing is that the development of polices in Ireland clearly ignores the
core principles of the Environmental Acquis, for instance the current Waste Policy is
simply a cynical and illegal attempt to force Waste to Energy facilities out of business
through excessive levies, thereby leaving the market place for the Mechanical
Biological Treatment systems preferred by the Green Party Minister. The
documentation for this Policy6, was prepared by the same consultants which prepare
policy for Greenpeace7. Only by my appeal to the Commission for Environmental
Information were the Submissions received posted on the website8. The responses
from the Environmental Protection Agency (EPA) and County & City Managers’
Association, among others, clearly outline the failings of this Policy with regard to the
Environmental Acquis. However, this has been ignored with the publishing of the Bill
to introduce the levies on Waste to Energy9. Seemingly to head off any legal
challenge, Minister Gormley has been told by Attorney General Paul Gallagher SC,
that amendments to the Bill " will be required before enactment" to ensure it complies
with the EU' s revised Waste Framework Directive, adopted in 2008.

If we consider the final pillar of the Aarhus Convention (Pillar III), Access to Justice,
the UNECE Aarhus Convention Compliance Committee10 has recently found that the
United Kingdom does not comply with the necessary provisions of the Convention
with regard to Access to Justice. However, the costs and timescales for Access to
Justice in the United Kingdom are far lower than in the Republic of Ireland, not to
mention the capricious nature of the Irish Judiciary, who are clearly not trained in
Environmental Legislation. The reality in Ireland is that to take a Court Case against
the Administration, one could easily lose all of one’s assets.

The Aarhus Convention Compliance Committee:

http://www.unece.org/env/pp/pubcom.htm

6
International Review of Waste Management Policy and Environmental Report for Section 60
Capping on Incineration (note no Strategic Environmental Assessment was done for the other
aspects of the draft Policy): http://www.environ.ie/en/Environment/Waste/PublicConsultations/
7
Eunomia and TBU:
http://www.greenpeace.org.uk/files/pdfs/migrated/MultimediaFiles/Live/FullReport/5574.pdf
8
http://www.environ.ie/en/Environment/Waste/PublicConsultations/SubmissionsReceived/
9
http://www.merrionstreet.ie/index.php/2011/01/gormley-welcomes-publication-of-
environment-miscellaneous-provisions-bill-2011/
10
http://www.unece.org/env/pp/ccBackground.htm
Communication to Aarhus Convention Compliance Committee by Pat Swords
BE CEng FIChemE CEnv MIEMA

I. Information on Correspondent

Pat Swords BE CEng FIChemE CEnv MIEMA

10 Hillcourt Rd
Glenageary
Co. Dublin
Ireland

00353-1-443 4831 / 00353-1-2852768

pat.swords.chemeng@gmail.com

II. Party Concerned

European Community

III. Facts of the Communication

The Republic of Ireland is progressing a massively expensive renewable energy

programme of predominantly wind energy, see for instance announcement in
October 2008:

• Minister for Environment, John Gormley T.D. has announced a revised

ambitious target for renewable penetration in the electricity sector. The new
target of 40% is a significant increase from the previous goal of 33% and
exceeds considerably both current EU targets of 20% and the UK's current
target of 15%.

The Minister said: “One of the most effective ways of reducing our national
greenhouse gas emissions is to generate as much electricity as possible from
renewable sources rather than from fossil fuels. The previous Government
adopted a target that 33% of electricity consumed would be from renewable
sources by 2020. Today I can confirm that the Government has now agreed,
on the recommendation of my colleague, the Minister for Communications,
Energy and Natural Resources, Eamon Ryan, T.D. to increase this target to
40%. The target is underpinned by analysis conducted in the recent All Island
Grid Study which found that a 40% penetration is technically feasible, subject
to upgrading our electricity grid and ensuring the development of flexible
generating plant on the electricity system.”

The capital costs alone of this programme at over €30 billion are staggering.
Furthermore at the EU damage cost for carbon dioxide of €9 per tonne, the
environmental damage avoided by implementation of this project amounts to little
more than €36 million per year. Sadly the same reduction in greenhouse gas
emissions could have been achieved for less than 1/30th the cost by proper
implementation of waste to energy plants and biogas projects. However, these were
obstructed by the Administration.

Furthermore this programme has never been through the process of Strategic
Environmental Assessment (Directive 2001/42/EC). Neither has there ever been any
cost / benefit studies or consideration of alternatives completed for this programme.
Under Pillar I of the Aarhus Convention it took me a complete year to document this
fact, in doing so having to go to appeal and investigation by the Commissioner for
Environmental Information. See decision CEI/09/0016 in regard to the Department of
Communications. Energy and Natural Resources on the website below and as
attachment:

• http://www.ocei.gov.ie/en/DecisionsoftheCommissioner/

The implementation of Directive 2001/77/EC on electricity from renewable sources in

Ireland has been nothing but a complete Wind Energy programme. According to
EirGrid11 chief executive Dermot Byrne in March 2010 “there were currently 1,260
MW of wind energy connected to the Irish grid. In addition, there are 1,300 MW under
construction and a further 3,990 MW would be sanctioned under the next round of
allocations”.

The Growth of Renewable Capacity for Electricity Generation in Ireland 2004 to

2009

The Department of the Environment’s own website is clear about Strategic

Environmental Assessment (SEA)
(http://www.environ.ie/en/DevelopmentandHousing/PlanningDevelopment/Environme
ntalAssessment/ ) and the implementation of Directive 2001/42/EC in Ireland under
the 2004 Regulations. The Directive applies across a wide range of sectors, including
energy. Furthermore wind energy developments are listed in the Directive on
Environmental Impact Assessment (85/337/EEC as amended) as requiring
environmental impact assessment. So a programme above of such comprehensive
installation of wind energy is subject to the requirements of a Strategic Environmental
Assessment. If we consider the Aarhus Convention itself, then this is addressed by
Article 7.

Despite the complete absence of compliance with public participation in decision

making (Pillar II of the Aarhus Convention), the EU Commission approved the REFIT
I programme for financial support of this programme in September 2007 (State aid N

11
The Irish State owned grid operator
571/2006 Ireland: RES-E support programme, see attached). This was the main
financial support mechanism for this programme.

In March 2010 the EU Commission further approved €110 million for the
interconnector project between Ireland and the UK.

• http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/231

Successive studies have shown that there is no economic justification to this project:

• See the Submission by the Irish Academy of Engineering to the Joint

Oireachtas (parliament) Committee on Climate Change and Energy Security
in June 2009:
http://www.oireachtas.ie/viewdoc.asp?fn=/documents/Committees30thDail/J-
Climate_Change/Submissions/document1.htm

• The in-depth review completed by the Finnish Engineering Group Poyry in

Juky 2009 on the proposed UK and Irish Wind Energy Programme:
http://www.poyry.com/index_cases/index_cases_12.html

• An in-depth study by the Bremer Energie Institut in July 2010:

http://www.bremer-energie-institut.de/download/bewp/bewp02.pdf

It is clear that the sole justification of this project is as a key component of this Irish
wind energy programme.

• http://debates.oireachtas.ie/DDebate.aspx?F=CLJ20100915.xml&Page=1&Ex
=53#N53

Furthermore a request by Jerry Waugh, Chartered Engineer, to the UK Authorities

under the Environmental Information Regulations, 2004 (Pillar I of the Aarhus
Convention), see FOI Request 10/1870 attached, demonstrated that no
arrangements had been made in the UK for exporting and importing wind energy on
this system.

The EU Commission is therefore directly funding to the tune of €110 million a key
element of a programme which has not been subject to the proper public participation
in decision making (Pillar II of the Aarhus Convention).

IV. Nature of Alleged Non-Compliance

The Republic of Ireland has failed to ratify the Aarhus Convention. There are
considerable breaches of the EU Environmental Acquis occurring in Ireland, which
are unfortunate, but cannot be dealt with through the Aarhus Convention Compliance
Committee. However, the European Community is a full party to Convention since
February 2005. It is clearly supporting, both by means of direct funding and by
approving state aid, the renewable energy programme in Ireland. This support is
being provided in spite of the fact that the programme has failed to comply with the
requirements on Public Participation in Decision Making (Pillar II of Aarhus
Convention). Furthermore, this programme fails also to comply with Pillar I of the
Aarhus Convention, as public bodies in Ireland are failing to provide key information
on this programme on request and routinely engaged in dissemination of false
information on the environment in relation to this programme, see for examples
Decisions CEI/09/007 (IDA and attached clarification), CEI/10/004 (Eirgrid and
attached clarification), CEI/10/0008 (University College Dublin) below.

• http://www.ocei.gov.ie/en/DecisionsoftheCommissioner/

Finally with regard to Pillar I of the Aarhus Convention and the European
Commission it is necessary to point out that the recent Renewable Energy Action
Plan for Ireland prepared for the EU Commission, see below, as per other Member
States, simply does not quantify any environmental benefits, such as greenhouse
gas reductions, any alternatives considered to achieve these benefits or any details
related to Public Participation.

http://ec.europa.eu/energy/renewables/transparency_platform/action_plan_e
n.htm

V. Provisions of the Convention relevant for the Communication

Requirements related to Article 7 on Public Participation concerning plans,

programmes and policies related to the environment have not been adhered to.
Furthermore Article 5 on Collection and Dissemination of Environmental Information
has not been complied with, as the Irish Public has been not been informed of the
key facts on this programme and instead routinely disseminated false information on
the environment related to this programme by the Irish Administration. Despite these
clear breaches of the terms of the Aarhus Convention, the EU Commission has
approved and directly funded this programme. Furthermore the EU Commission is
failing with regard to its requirements for Article 5 as the recent Renewable Energy
Action Plans prepared for the EU Commission, which outline how 20% of Europe’s
Energy is to be obtained from renewable sources by 2020 (a value in excess of 100
billion Euros per year), do not provide any details of environmental benefits or
alternatives considered.

VI. Use of Domestic Remedies

For more than two years I have been highlighting the major problems with this
renewable energy programme, particularly the complete breach of the principle of
proportionality and the failure to address the costs / benefits and alternatives. On the
13th October 2008 I submitted a paper on the folly behind Ireland’s wind energy
programme to the Joint Oireachtas Committee on Climate Change and Energy
Security. In June 2009 I submitted a further Submission to the Joint Oireachtas
Committee on Climate Change and Energy Security:

• http://www.oireachtas.ie/viewdoc.asp?fn=/documents/Committees30thDail/J-
Climate_Change/Submissions/document1.htm

In January 2010 the EU Ombudsman, who does about 300 detailed investigations a
year, started a detailed investigation (2587/2009/JF) in my name related to the
infringements of Environmental and Energy Legislation in Ireland. Currently this is
under review with a decision not expected until the end of the year by the earliest.
(See file on EU Ombudsman attached).

In March 2010 the EU Commission opened a formal complaint investigation (CHAP

(2010) 00645) in my name related to compliance with EU Environmental Legislation.
In November 2009 I contacted the Garda Bureau of Fraud Investigation related to the
systematic failures of senior elected and non-elected officials to comply with the
legislation on the statute books and a complaint file (FB11/242.09) was opened in my
name.

I repeatedly contacted the EU Commission with regard to the dreadful situation of

non-compliance with the EU Environmental Acquis in Ireland and the renewable
energy programme in particular. However, they have been consistently unwilling to
address the issues with regard to renewable energy. In particular the EU
Ombudsman’s European Code of Good Administrative Behaviour has simply been
ignored: http://www.ombudsman.europa.eu/resources/code.faces . See for example
correspondence from September 2010 as attachment.

Finally, I repeatedly request information from the Irish Authorities under the Access
for Information on the Environment regulations (Pillar I of Aarhus Convention –
Directive 2003/4/EC). However, I have consistently not been provided with the
answers requested. These requests have then been brought to Appeal to the Office
of the Commissioner for Environmental Information (see:
http://www.ocei.gov.ie/en/DecisionsoftheCommissioner/ ). The Commissioner has
delivered over four decisions in relation to these requests – generally in favour of the
authorities. The reason for this is that the information requested does not exist – this
is in spite of the fact that the Irish Authorities are required under EU Legislation
(Directive 2003/4/EC) to develop and disseminate this information – examples from
the Decisions of the Commissioner include: Request for the Strategic Environmental
Assessment in relation to renewables programme, request for Cost Benefit Analysis
in relation to renewables programme, request for information regarding the economic
impacts of the wind energy programme, its costs, subsidies required for job creation
and industrial grants, resulting electricity prices, loss of competitiveness in other
manufacturing sectors and resulting job losses, etc.

VII. Confidentiality

I have no requirement to keep any of the material confidential.

VIII. Attachments

• Commission Decision on State Aid N 571/2006 (REFIT I Programme)

• Environmental Information (Zip file)

o CEI/09/0016 – Decision from Commission of Environmental
Information Re DCENR
o Clarifications related to DCENR
o Clarifications related to IDA
o Clarifications related to Eirgrid
o FOI Request 10/1087 Jerry Waugh

• File on EU Ombudsman (Zip file)

o Cover Letter April 2010
o Final Submission on Complaint Ref 2587/2009/JF May 2010
o Bringing the Irish Administration to Heel

• Correspondence to EU September 2010

o E-mail to EU Commission requesting a meeting 31/8/2010
o Letter to the EU Re Aarhus and requesting a meeting
 o Proposed Agenda for meeting
o Reply from the EU Commission DG Energy on statements wrongly
attributed.
o Eirgrid statements on wind
o E-mail to EU Commission on Decision on Appeal

VIX Summary

The renewable energy programme in Ireland has not been subject to the proper
Public Participation in Decision Making procedures (Pillar II of Aarhus Convention).
Furthermore there has been a failure by the Irish Administration to disseminate key
information on the environment related to this programme and consistent evidence of
dissemination of false information on the environment with regard to this programme
(Pillar I of Aarhus Convention). The EU Commission has both approved and directly
funded this programme. It has also failed (Pillar I of the Aarhus Convention) to
ensure proper provision and dissemination of information related to the
environmental benefits, such as greenhouse gas reductions, and alternatives
considered related to this massively expensive programme.

X Signature