Photo montages created for the Coolglass Wind Farm suggest the wind turbines would barely be seen by most people in the Co Laois countryside where it is proposed they be erected.
But the court case surrounding the project has made visible a critical question for decision makers, not just in planning authorities but in all public bodies.
How do their decisions to approve, reject, initiate, regulate, buy or fund projects and policies under their remit sit with the national objective of cutting greenhouse gas emissions?
More specifically, how far do they have to go to comply with the law as set out in the Climate Action and Low Carbon Development Act?
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Section 15 of the Act says “as far as practicable” but what that means was teased out for the first time by the Supreme Court this week.
Coolglass was refused planning permission by An Coimisiún Pleanála because the Laois County Development Plan declared the intended site as off limits, largely due to the expected visual intrusion of turbines on the landscape.
Coolglass appealed to the High Court, arguing that Section 15 trumped the council’s plan, and won.
An Coimisiún Pleanála appealed that decision to the Supreme Court, which sided with Coolglass, although not quite so wholeheartedly as the High Court.
“My sense is that the Supreme Court has reigned in the High Court’s interpretation of Section 15 somewhat, but it’s clear that Section 15 still has a lot of bite,” said Dr Orla Kelleher, assistant professor of law at Maynooth University.
“The court is quite clear that compliance with Section 15 is a legal question and that the courts can scrutinise public-body behaviour in that respect.
“It has also made a statement which I think is quite significant for future cases – that this goes beyond planning authorities.
“It says: ‘Even bodies not normally concerned with issues of climate change must still perform their functions so far as practicable in a manner consistent with the Section 15 objectives’.”
Where the Supreme Court diverged from the High Court is in deciding that Section 15 is not all powerful.
The example provided by the Supreme Court is a hypothetical situation where a council zoned an entire county for wind turbines apart from “10 hectares of high scenic, cultural and amenity value”.
If a wind farm developer sought to erect turbines on those 10 hectares, they could not argue that the planning authorities were obliged by Section 15 to grant permission.
“Section 15 is not a stand-alone provision. It is not a single radical provision intended to carry the full weight of the State’s response to climate change,” the ruling states.
“The court is saying there is some level of leeway,” Kelleher said.
Still, observers say the ruling could have wide-ranging impacts for many public bodies.
Sinn Féin MEP Lynn Boylan said the Commission for the Regulation of Utilities (CRU) must rewrite its controversial data centre policy in light of it.
The CRU policy published last December lifted a moratorium on new data centre development which was imposed after it became clear the electricity network in key locations could not support the vast energy demands the sector creates.
The CRU has given the go-ahead to new data centres so long as they provide their own electricity which must come largely, but not entirely, from renewables.
“The decision was widely seen as reopening the floodgates to data centres in a way that will drive up electricity demand, lock in fossil-fuel generation, and make our legally binding climate targets harder to reach,” said Boylan.
[ The Irish Times view on data centres: questions still to be answeredOpens in new window ]
“The CRU refused to set a policy that would help keep the State within its climate limits. Its justification was that the Climate Act does not give it the legal powers to do so.
“That position was never legally tenable and today’s [Supreme Court] ruling makes that clear.”
Oisín Coghlan, a long-time policy adviser and climate action campaigner, said the ruling should have a “direct effect” when An Coimisiún Pleanála is considering whether to grant planning permission for LNG import terminals.
Shannon LNG, a commercial development, is currently awaiting a decision on its planning application and the Government is planning to develop a similar state-owned facility.
Kelleher cautioned that the ruling was more about decisions that assisted with meeting the State’s climate objectives rather than decisions that would damage efforts at compliance.
[ Plans to fast-track permission for floating gas terminal criticisedOpens in new window ]
“As regards projects that would produce a lot of emissions, it [the ruling] doesn’t really go there. That will likely be the next battleground,” she said.
Statkraft, the company behind the Coolglass project, kept its comment on the ruling brief, welcoming it as a “positive and important outcome for the renewable energy sector in Ireland”.
“The decision provides much‑needed clarity on the role of climate law in our planning process,” a spokesperson said.
The Department of Climate, Energy and the Environment said Minister for Climate Darragh O’Brien noted the ruling and “its clarification on the operation of Section 15”.
“The Minister and his officials will carefully consider the judgment in full, in conjunction with the Attorney General and relevant ministers, departments and agencies before commenting further,” a spokesperson said.
