Upstream Greenhouse Gases ' In Or Out Of Environmental Impact Assessment?

• Published date: 25 June 2021
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Oil, Gas & Electricity
• Law Firm: William Fry
• Author: Conor Linehan, Richard Breen and Michelle Martin

Overview

The High Court (Court) decision in An Taisce ' The National Trust for Ireland v An Bord Plean'la & Ors [2021] IEHC 254 (Decision), will be of assistance to environmental impact assessors, to legal practitioners and those preparing environmental impact assessment reports (EIARs). It provides some useful guidance on understanding the concept of "indirect effects" under the EIA Directive (2011/92/EU) in the context of Greenhouse Gases (GHGs), particularly "upstream" GHGs, and will assist with decision-making on what scope of GHGs to include in EIARs or Environmental Impact Assessments (EIAs).

Planning Decision

In November 2019, Kilkenny County Council granted planning permission for the construction of a '150 million cheese manufacturing plant (Plant) in Kilkenny. An Taisce, the National Trust for Ireland, appealed to An Bord Plean'la (Board), the Irish planning appeals board.

A central part of An Taisce's appeal, emphasised the importance to be accorded, as part of the planning decision, to that part of national climate policy that recognises the necessity to reduce agriculture-related GHGs and, as part of that, the need to reduce the proportion of national GHGs attributable to the national dairy herd. An Taisce argued that a grant of planning permission for the facility would simply be incompatible with national climate policy and with the achievement of EU and international GHG reduction targets.

In June 2020, the Board granted permission in accordance with the findings of the inspector's report (Report). The Report included consideration of the indirect effects of the development. As part of that, the Report gave limited consideration to competing arguments about whether the Plant would, if granted permission, result in increased milk production (and if so what level of increase) or, alternatively, whether the Plant's supply would come from within existing milk production regionally. Ultimately this was not determinative in the final decision as the Inspector ultimately found that effects related to the production of raw material "upstream", that is, effects related to milk production that would take place on many individual farms (by many hundreds of individual dairy suppliers), would be too "remote".

An Taisce brought judicial review proceedings before the Court seeking to quash the Board's grant of permission. The Court delivered its Decision in April 2021.

Indirect Effects

One of the key issues in the case turned on the extent of the Board's...