Sir, – We are writing to express our serious concern about the legality of the Planning and Development Bill 2023, which has been rushed through the Houses of the Oireachtas and is about to be passed into law.
The Bill is in breach of several legal obligations under EU and international law, including the provisions of public participation and access to justice in environmental matters, which are cornerstones of environmental democracy. It also creates the conditions for an acceleration of Ireland’s contribution to climate change through the fast-tracking of high carbon infrastructure.
The Bill places a disproportionate amount of discretionary power in the hands of the Minister. Last-minute amendments were added in the Seanad to introduce a class of “strategic infrastructure” that would be exempt from the normal protocols. The Bill lists some types of development that fall into this category, such as liquefied natural gas (LNG), but what constitutes “strategic infrastructure” is open to debate. Liquefied natural gas, for example, is primarily made up of methane, a greenhouse gas 80 times more potent than CO2 in the short term and 30 times worse in the long term. Methane leaks into the atmosphere throughout the LNG production and supply chain and contributes to climate warming at a significant pace. LNG terminals also release harmful air pollutants, such as volatile organic compounds, nitrogen oxides, sulphur dioxide, and carbon monoxide. Can environmentally destructive development such as LNG justifiably be classed as “strategic” in a period of climate crisis and increasing environmental degradation?
The Bill also lists a general class of “strategic infrastructural development” which leaves it open to be decided by the relevant minister of the day. For example, the Department of Enterprise’s Policy Statement on Data Centres reassures investors that data centres over certain size thresholds will be reclassified as “strategic infrastructure” development “to streamline the decision-making process”. Let’s consider for a moment the energy and water consumption of data centres alone: they can use 500,000 litres of water a day, and sometimes multiples of that figure when temperatures rise. In 2023, data centres consumed 21 per cent of all metered electricity from the national grid, outstripping the energy use of all urban Irish homes combined. As the Government’s Reduce Your Use policy encourages efficient energy use by households, similar standards are not required of industry.
These amendments are being introduced to speed up the planning process. However, previous attempts to pass similar planning legislation has led to the “lock-in” of high carbon infrastructure, unsustainable development and long and expensive court cases: for example, the 2006 Strategic Infrastructure Act was passed in rushed circumstances, partly to facilitate the Corrib gas project. The legislation was in breach of EU law and led to multiple court cases. Likewise, the “fast-track” process of Strategic Housing Development under the Planning and Development (Housing) and Residential Tenancies Act 2016 led to a legitimacy crisis for An Bord Pleanála. Both pieces of legislation were introduced in conditions of extensive lobbying by vested interests, undermining public faith in the planning system, political process and public institutions.
The assumptions surrounding what can be considered “strategic” and beneficial desperately need further scrutiny, and yet the potential for scrutiny is considerably diminished in the Bill. For example, in relation strategic infrastructure (“Chapter Four4 developments”), the eligibility to make an application to appeal a decision is reduced to landowners and others with a proprietary interest in the land in question. This is a direct violation of the right to participate in environmental decision-making and is reminiscent of the days where citizenship and voting rights themselves were contingent upon property ownership.
In July of this year, the UN committee responsible for overseeing the Aarhus Convention on access to information, public participation and access to justice in environmental matters issued a report to Ireland criticising elements of the Bill that are in direct violation of the convention. The Government had the opportunity to rectify this at amendment stage but chose not to do so.
The Minister for Enterprise accuses “those opposed to data centres of not being in the real world” but the Minister needs to examine the difference between the actual physical world that we live it, including its limits, and the abstract world of investor confidence and limitless economic growth in a planet – and island – with finite resources. – Yours, etc,
AMY STRECKER,
SINÉAD MERCIER,
UCD Sutherland School of Law,
Belfield,
Dublin 4.
