Introduction

The case of Friends of the Irish Environment CLG v Government of Ireland & Ors (Approved) ([2022] IESC 42) presents a significant legal challenge concerning the applicability of the Strategic Environmental Assessment (SEA) Directive to national planning frameworks in Ireland. The applicant, Friends of the Irish Environment CLG, contended that the Irish Government's adoption of Project Ireland 2040, comprising the National Planning Framework (NPF) and the National Development Plan (NDP), failed to comply with Directive 2001/42/EC's environmental assessment requirements. The core issues revolve around whether these national plans fall within the SEA Directive's scope and whether the environmental assessments conducted were adequate, particularly in the evaluation of reasonable alternatives.

Summary of the Judgment

The Supreme Court of Ireland, after reviewing the dismissals by the High Court and the Court of Appeal, upheld the decision to refer substantive interpretative questions to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU). The primary focus is on determining whether the NPF and NDP are subject to the SEA Directive and whether the environmental assessments, particularly the treatment of reasonable alternatives, met the Directive's requirements. The Court acknowledged the complexity of the issues and the need for authoritative clarification from the CJEU to ensure consistent application of EU environmental law within the Irish context.

Analysis

Precedents Cited

The judgment extensively references key cases from the CJEU, including:

• A and Others (Wind Turbines at Aalter and Nevelle) (Case C-24/19): Affirmed a broad interpretation of what constitutes a "plan or programme" within the SEA Directive.
• Bund Naturschutz in Bayern v Landkreis Rosenheim (Case C-300/20): Reinforced the expansive scope of the SEA Directive, emphasizing that executive actions with significant environmental impacts fall within its ambit.
• Inter-Environnement Bruxelles v Région de Bruxelles-Capitale (Case C-671/16): Highlighted that plans adopted under hierarchical legislative frameworks are considered "required" under the Directive.
• Friends of the Earth (England, Wales and NI) Ltd v Secretary of State for Transport (Case C-461/17): Discussed the necessity for equivalent assessments of alternatives.

Legal Reasoning

The Supreme Court's legal reasoning delves into the interpretation of "required" within Article 2(a) of the SEA Directive. The Court scrutinizes whether the NPF and NDP are binding under legislative, regulatory, or administrative provisions or if they were adopted solely under the executive authority granted by the Irish Constitution's Article 28.2. The Court notes that while the executive branch may adopt significant plans, the absence of a specific legislative mandate challenges the plans' classification as "required" under the Directive.

Further, the Court examines whether these national plans establish a "framework for future development," a key criterion under Article 3(2). The NPF's role in influencing local and regional planning decisions suggests a framework-setting function. However, the lack of a legislative or regulatory basis for adopting the NPF and NDP complicates their inclusion under the Directive's scope.

On the matter of evaluating reasonable alternatives, the Court references Commission Guidance and precedents from English and Welsh courts, which advocate for a comparable assessment of all reasonable alternatives to the preferred option. The Environmental Report accompanying the NPF identified five reasonable alternatives but provided a more detailed assessment of the preferred option, raising concerns about the adequacy of alternative evaluations.

Impact

The Supreme Court's decision to refer questions to the CJEU underscores the critical nature of EU directives in national legislation and the necessity for coherent interpretation across jurisdictions. Should the CJEU affirm the broad applicability of the SEA Directive to plans like the NPF and NDP, it would compel national governments to ensure stringent compliance with environmental assessment protocols in strategic planning. Conversely, a narrower interpretation might grant more executive flexibility but could undermine EU environmental protection objectives.

The judgment also impacts how future environmental assessments are conducted in Ireland, particularly concerning the analysis of alternatives and the procedural robustness of strategic plans. It emphasizes the judiciary's role in upholding EU environmental standards and ensuring that national plans align with broader sustainability and environmental protection goals.

Complex Concepts Simplified

Strategic Environmental Assessment (SEA) Directive

The SEA Directive mandates that certain high-level plans and programs undergo environmental assessments to identify significant environmental impacts before their adoption. These plans are typically broad frameworks that guide subsequent detailed development projects, ensuring that environmental considerations are integrated into strategic decision-making.

Plans and Programmes

Under the SEA Directive, a "plan or programme" refers to any document prepared for sectors like agriculture, forestry, energy, transport, and urban planning that sets the framework for future development consents. These are broader than specific projects and influence multiple downstream decisions.

Scoping and Alternatives Assessment

Scoping is the initial phase in the SEA process where the scope and focus of the environmental assessment are determined. Assessing alternatives involves identifying and evaluating different approaches or strategies that could achieve the plan's objectives, ensuring that the chosen option is environmentally sustainable.

Monitoring Provisions

Monitoring involves tracking the environmental impacts of implementing a plan or programme to identify unforeseen adverse effects early and take remedial actions. It ensures that the plan remains environmentally compliant throughout its execution.

Conclusion

The Supreme Court of Ireland's decision in Friends of the Irish Environment CLG v Government of Ireland & Ors highlights the intricate interplay between national strategic planning and EU environmental legislation. By referring pivotal interpretative questions to the CJEU, the Court underscores the necessity for clarity in applying the SEA Directive to comprehensive national frameworks like the NPF and NDP. This judgment serves as a crucial precedent for future cases, emphasizing the importance of rigorous environmental assessments and the equitable evaluation of alternatives in strategic planning. The outcome will significantly influence how Ireland, and potentially other EU member states, align their national development policies with overarching environmental sustainability mandates.