Friends of the Irish Environment v Minister for Communications (Shannon LNG terminal) (Approved)

Factual and Procedural Background

The Applicant initiated judicial review proceedings challenging the establishment by the European Commission of a list of “projects of common interest,” specifically contesting the inclusion of the proposed Shannon LNG terminal and connecting pipeline on that list. This list was created under delegated powers granted by Regulation (EU) No 347/2013, also known as the TEN-E Regulation.

The Applicant's primary argument was that the European Commission exceeded its delegated powers by including projects that did not meet the prescribed criteria. A secondary argument alleged that the Irish State breached its obligations under the Climate Action and Low Carbon Development Act 2015 by failing to veto the inclusion of the Shannon LNG terminal on the EU list.

A prior detailed judgment (“the principal judgment”) addressed the primary argument, concluding that the national court lacked jurisdiction to determine the validity of the delegated regulation. This present judgment focuses on the Applicant’s secondary argument.

The substantive hearing took place over several days in mid-2020. The Court initially considered whether to refer questions to the Court of Justice of the European Union (CJEU) but ultimately ruled it did not have jurisdiction to make such a reference. The parties agreed to proceed with the remaining issues before the High Court. The Court emphasized the need for expeditious determination consistent with the Strategic Infrastructure Development List obligations.

Following further submissions and a hearing in January 2021, the Court focused on whether the obligations under section 15 of the Climate Action and Low Carbon Development Act 2015 apply to the Government when exercising executive power under the Constitution of Ireland. Supplemental written submissions were filed, and judgment was reserved.

Legal Issues Presented

1. Whether the Irish State’s failure to veto the inclusion of the Shannon LNG terminal on the EU list of projects breached its obligations under the Climate Action and Low Carbon Development Act 2015.
2. Whether section 15 (and section 4(12)) of the Climate Action and Low Carbon Development Act 2015 applies to the Government when exercising executive power under Articles 28 and 29 of the Constitution of Ireland.
3. Whether the national court has jurisdiction to entertain a collateral challenge to the validity of the delegated regulation adopting the EU list of projects.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed the Applicant’s secondary argument that the Irish State breached domestic climate legislation by failing to veto the Shannon LNG terminal’s inclusion on the EU list. It emphasized that this argument amounted to a collateral challenge to the validity of the EU delegated regulation, which the Court had already ruled it lacked jurisdiction to entertain.

The Court explained that actions taken by the Irish State as a member of the regional group in the EU decision-making process are inseparable from the ultimate adoption of the delegated regulation by the European Commission. Therefore, national courts cannot review those actions independently of the EU measure.

The Court further reasoned that the alleged breach of domestic law is inextricably linked with EU law issues, as the domestic statutory assessment obligations are less stringent than those under the TEN-E Regulation. If the EU assessment fails domestic standards, it necessarily fails the higher EU standard, making any national law challenge a de facto attack on EU law decisions.

The Court noted that the Applicant failed to identify any authority supporting the proposition that a delegated regulation could be invalidated due to an earlier breach of domestic law by a Member State, which would conflict with the supremacy of EU law.

Regarding statutory interpretation, the Court considered whether sections 4(12) and 15 of the Climate Action and Low Carbon Development Act 2015 apply to the Government when exercising executive power under the Constitution. It concluded that the Government is not a “relevant body” under the Act and thus is not subject to these provisions in exercising its executive functions related to external relations.

The Court distinguished between Ministers acting individually under statutory powers (persona designata) and the Government exercising collective executive power. The statutory climate obligations apply to Ministers in their individual capacities but do not restrict Government actions under constitutional executive powers.

Holding and Implications

The Court DISMISSED the Applicant’s judicial review application in its entirety.

The decision confirms that national courts do not have jurisdiction to entertain collateral challenges to the validity of EU delegated regulations through domestic law claims against Member State actions that form part of the EU decision-making process. It further clarifies that the statutory obligations under the Climate Action and Low Carbon Development Act 2015 do not apply to the Government when exercising executive power under the Constitution in matters of external relations.

No new precedent was established beyond the reaffirmation of jurisdictional limits and interpretation of the domestic climate legislation in the context of executive power.

The Court also addressed costs, indicating that the respondents are prima facie entitled to costs, subject to discretion and potential submissions by the Applicant.