Pat Swords writes with the latest news from his legal battle to have Irish energy policy declared illegal under the Aarhus Convention.
On Tuesday the case to be heard the next day (13th) went instead into adjournment until the 11th April. There are complex legal issues involved in the case, which I have not yet had the time to finish writing up, but they go beyond the renewable energy issues to the core principle of access to justice and 'who watches the watch keeper'. The lawyers on both sides have agreed to extra time to prepare additional written affidavits. In summary though, due to Ireland's failure to ratify the Convention, I could not have taken my case in the Court until after Ireland's ratification of the UNECE Convention took effect in September 2012. As it turned out, the ruling had by then come through from the UNECE Compliance Committee and I brought it before the High Court and got leave in early November 2012, within the recognised time frame applying post ratification.
The State's position is that the National Renewable Energy Action Plan was notified to the EU Commission on the 30th June 2010 and as it was not then taken into Judicial Review, they have full legitimacy to continue to implement. The detail is not straightforward; the State is doing everything it can to shut out the citizen from challenging it in the Courts; there is no democracy only diktat and they intent to keep it that way. On my side I'm bringing in a UN ruling, which the State is refusing to recognise, even though it both signed and then finally ratified the UNECE Convention. My 'defense' in relation to not being able to bring a Judicial review until after ratification is fully valid but unique, as such circumstances have never happened before. Potentially the case could in time be referred to the European Court, as it is the Judge is being requested to face down the State administration, create precedence and finally open the door for access to justice procedures, which have to date been denied to citizens here.
It is like Animal Farm, the pigs decide and all the animals have to toil building windmills. The only difference now is that the ideology behind it is Green not red and Napoleon's dogs are the lawyers of the State Solicitor's office.
Since your previous post, informing others on how the Secretary General of the European Commission replied to access to information on the environment requests with blank forms, we've had some progress, which as previously is very revealing. You can see the letter which went back to the EU attached, so there was a bit of a surprise when instead of the requested information, the below came back.
The EU's response was as follows:
I am referring to the access to documents case "Gestdem 2012/4179", which is presently being investigated by the Ombudsman office. Notwithstanding the outcome of the ombudsman inspection, we would like to propose a meeting with you to discuss this issue.
In this regard, we would like to propose a meeting with you either in the premises of DG ENER in Brussels or otherwise via a video conference, which would be facilitated by the Representation of the European Commission in Dublin. Furthermore, we would kindly ask you to indicate your availability for such a meeting.
In addition we would like to notify you, that the Ombudsman office is informed and welcomes our initiative to hold a meeting on this issue.
Finally we would like to inform you, that we have registered your "Reply to the confirmatory application for access to documents under Regulation (EC) N° 1049-2001 - GESTDEM 2012-4179 - CAULFIELD / Complaint to EU Commission (email dated 04.03.2013) as a new "Access to document" case.
Should you have further question, do not hesitate to contact us again.
On Friday, there was some further action as Pat described in a followup email:
...the EU came back again on Friday, see below. Twice in two days essentially. So we have prepared a reply...
The EU's response was as follows:
I am referring to my email from 13 March 2013... which is presently being investigated by the ombudsman office..., where we inform you that your letter to the Secretariat General and DG ENER of 4 March 2013 (concerning the filled in questionnaires with regard to projects in question), has been registered as new "Access to document" request...
As your new request also refers to other topics apart [from] the filled in questionnaires, we would kindly ask you to specify all documents you are looking for concerning your new request for "Access to documents". We would also like to remind you that no reply by 21.032013 (cob) will be considered withdrawal of your new request... Please note, that we are currently discussing with all concerned project promoters, which parts of the project questionnaire can be disclosed.
As proposed in our last email, we would kindly ask you, if you agree to a meeting with the Commission and indicate your availability for a meeting either in the premises of DG ENER in Brussels or via a video conference, which would be facilitated by the Representation of the European Commission in Dublin.
Should you have further questions, do not hesitate to contact us again.
And the reply sent back can be seen here.