The central planning authority wants to appeal against the High Court’s nullification of its refusal of permission for the proposed Shannon liquefied natural gas (LNG) terminal in Co Kerry.
A decision in a judicial review case can only be appealed to the Court of Appeal if so permitted by the High Court.
Mr Justice Richard Humphreys quashed An Bord Pleanála’s decision last September. He proposed ordering the board to reconsider the planning application for a power plant, battery energy storage system and regasification unit on the Shannon estuary near Ballylongford.
In October, 2023, the board refused to approve the project pending completion of the Government’s review of the security of energy supply to 2030. It found the proposal was “contrary to Government policy and therefore contrary to the proper planning and development of the area”.
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The 2020 programme for government stated the Government did not believe it “makes sense to develop LNG gas import terminals importing fracked gas”.
The judge’s ruling, which came in response to a challenge by the Shannon LNG developer, noted later developments included the March 2022 Versailles declaration by European Union heads of state and government, including the taoiseach. The European Council, including Ireland, unanimously decided to work together on common purchase of gas, LNG and hydrogen.
It appeared the parties agreed that Government policy did not amount to a “moratorium” on LNG facilities, he said, adding that the board must “have regard to” to a Government policy document but is legally entitled to depart from it.
He found the board made a few errors, including failing to have regard to the 2023 national risk assessment that recognised a lack of diversity of energy supply sources and storage “is a risk for security of supply”.
On Monday, the High Court heard An Bord Pleanála intends to apply for a certificate to appeal against the judgment.
Mr Justice Humphreys questioned whether the application should be paused for a period, given there are a “lot of moving parts” affecting the issues in the case.
From the Government’s perspective, there are important pieces of policy to be balanced, he said. He could also see why developer Shannon LNG would want to progress the matter as it “obviously” wants to get on with developing its project.
A court decision in a potential appeal is a year away, he said, adding: “I could be wrong, but I would have thought bringing clarity to this would have been a ‘first 100 days’ kind of a decision”.
The parties’ lawyers all consented to an adjournment of one week so they can take instructions from their clients regarding their preferred approach.
In his decision of last September, the judge observed that it would be desirable to have “an actual conclusion” to the review of energy security and gas supply policy, which has been ongoing for some 2½ years.
The State had tried to attribute the delay to Russia’s invasion of Ukraine but that “should be a reason to speed matters up, not slow them down”, he said.
Minister for Energy Eamon Ryan recently said it might make more sense to invest further in solar, interconnection and battery storage of electricity than to put the money into LNG. Analysis on this issue would be completed in the coming months, the judge said.
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