In March, the ESB announced that it was going to decommission a big electricity wind farm in Co Galway after the board members at An Bord Pleanála over-ruled a recommendation of its inspector to grant an order for its retention in a process known in Irish planning law as “substitute consent”.
Substitute consent allows a party which has carried out a development without complying with European Union law obligations to conduct an environmental impact study and obtain an assessment (EIA) to apply to the planning board for retrospective permission to retain the development despite failure to comply with that requirement. The EU court in Luxembourg has laid down a regime which strongly leans against granting of substitute consent where that would have the effect of rewarding the party which carries out the development unlawfully.
The result is that a huge wind farm with 70 turbines on the Slieve Aughty mountains in Co Galway, with a value, prospective and invested, of more than €200 million and capable of producing nearly 60 megawatts (about 1 per cent of our total supply) will be ripped down. The damage done by the original development to the peatland (resulting in a big peat landslide and fish kill) will have to be reversed (an impossibility, many believe), the network of foundations, roadways and cabling installations will have to be removed and the site of the wind farm restored to its original condition insofar as that could ever be achieved.
You might wonder why it is not possible for the wind farm to be retained now — in the middle of an energy crisis — if the developers could be deprived of the benefit of their tainted development. From an environmental point of view, the destruction of the wind farm is likely to cause further damage.
Few people believe the Derrybrien wind farm could not have been built if adequate precautions had been taken to prevent the peat slide and a proper EIA done. But, ludicrously, that is not the deciding factor as a matter of EU or Irish planning law or jurisprudence on its retention.
This raises the question as to whether the Oireachtas might not now lawfully enact legislation to deprive the original developers of the benefit of the unlawful failure to carry out the EIA process by vesting the wind farm in the State. The State has already had to pay €17 million in fines to the European Commission for its failure in this regard.
If the development had been a private-sector speculative development, one would imagine that the wind farm might be nationalised or confiscated — to deprive the developers of any benefit for infringing EU law — while giving the badly-needed infrastructure to the community to assist in dealing with our sustainable energy crisis.
In this way, the aims of EU environmental law and the dictates of common sense could be reconciled. But by overruling its own inspector, the planning board seems to have produced an unappealable decision requiring demolition as far as Irish planning law and jurisprudence goes.
The situation is complicated by the fact that the ESB is publicly owned and that it was behind the original development carried out unlawfully. Its subsidiary, Gort Windfarms Ltd, is now supposedly charged with its destruction.
This is nonsense on stilts. We need the wind farm. It is ludicrous to demolish it. The big peat slide 14 years ago is history and cannot be reversed. The fish kill cannot be undone. Throwing €200 million on to a legal bonfire will achieve nothing. No heads will roll. Nobody will be accountable, legally or politically. Taxpayers will be punished for something they did not do and cannot reverse. More gas- and coal-fired generation capacity will be used in the short and medium term to make up for the capacity lost if Derrybrien is demolished.
If the ESB is to be deprived of the benefit of having built Derrybrien, surely it could be vested by legislation in someone else — a local authority or EirGrid — or else sold by the State to a third party, with its revenue invested in further onshore or offshore wind power infrastructural development. Energy companies could then buy, at commercial rates, the power generated. At least Irish people would not be throwing something worth a veritable fortune down a legal drain.
There is a way out of this legal madhouse. Common sense dictates the non-destruction of a large wind farm in the middle of an energy crisis. The Minister for Energy, the Taoiseach and the Attorney General should explore every option to avoid this calamity.
We are a grand little country facing gas shortages for another 30 years. No LNG terminal to be built; no gasfields to be explored.
Let’s get real.
