Environmental consenting

Stuart Conaty, Partner in Beauchamps’ Energy and Natural Resources team discusses progress on policy measures aimed at accelerating renewable energy deployment.

In last year’s Renewable Energy Magazine, we discussed two positive legislative developments aimed at accelerating the consenting process and the deployment of renewable energy, the Draft Planning and Development Bill, 2022 (the Bill) and Council Regulation (EU) 2022/2577 laying down a framework to accelerate the deployment of renewable energy (the Regulation).

In this article, we provide an update on the progress of these legislative measures, discuss their impact, and further examine legislative developments aimed at streamlining the consenting of renewable projects; in particular, the proposal for a directive amending Directive (EU) 2018/2001 (the Renewable Energy Directive or REDII) endorsed by the Permanent Representative Committee of the EU on the 16 June 2023 (the Proposed Directive).

Progress with the Bill

The Bill represents a long overdue consolidation and streamlining of our national planning framework. Some of the positive measures in the Bill include the introduction of mandatory timelines for processing all consent applications and changes to the right to bring, and the conduct of, judicial reviews, including the introduction of statutory time periods for each stage of the judicial review process.

The Bill completed pre-legislative scrutiny in April 2023 with the publication of the report of the Joint Committee on Housing, Local Government and Heritage. With respect to the proposed changes to the judicial review process, in particular the measures included in the Bill to restrict the right of certain organisations to bring a judicial review, the report identified some concerns and made a recommendation that the proposed changes be reviewed for consistency with the Aarhus Convention.

The Minister for Housing, Local Government and Heritage is in the process of revising the Bill considering, the Joint Committee’s report. A revised draft Bill is expected to be published by the end of September 2023 with the Minister targeting to have the Bill enacted before the end of the year.

Impact of the Regulation

The Regulation was introduced on 22 December 2022 as a temporary emergency measure in response to the threat to security of supply posed by the war in Ukraine and has effect for an 18-month period. Notwithstanding it is a regulation, and therefore directly effective, there are elements of the regulation more akin to a directive with member states afforded significant discretion as to its implementation.

For example, Article 6 permits, but does not oblige, member states to exempt renewable energy projects and associated infrastructure from the requirement to undertake an environmental impact assessment where the project is located in “a dedicated renewable energy area… and… the area… has been subject to a strategic environmental assessment”. Unfortunately, the Irish Government has made no moves to identify such dedicated renewable energy areas and we are not aware of any such moves across the Union.

Applicants for consent for renewable energy projects are invoking the regulation. In particular, applicants are highlighting the declaration in Article 3 that renewable energy projects are in the overriding public interest and that the consenting authority must ensure that such projects are given priority when balancing competing legal interests. We are not aware of any relevant decisions as of the date of this article where such a balancing of legal interests was a live issue but no doubt the issue will emerge as more applications move through the system.

“The full benefit of the Regulation has not materialised due to an unwillingness on the part of government to designate renewable energy areas.”

The proposed directive

The proposed directive adopts many of the measures included in the Regulation aimed at accelerating the permit granting process including the designation of “renewables acceleration areas” and seeks to build on some of the existing requirements under the Renewable Energy Directive such as mandatory time periods for the consenting process.

Unlike the Regulation, the proposed directive requires member states to identify areas (land and sea) for the development of renewable energy sufficient to meet their 2030 renewable energy targets and to have completed this process within 18 months. Within 27 months, the relevant competent authorities are required to designate subsets of these areas for the development of renewable energy with these areas, to be known as “renewables acceleration areas”, to be subject to a strategic environmental assessment. Renewable energy projects located in renewables acceleration areas will be exempt from the requirement to undergo an environmental impact assessment or an appropriate assessment.
The consenting authority will be required to carry out a screening exercise to determine if the project “is highly likely to give rise to significant unforeseen adverse effects… that were not identified during the [strategic] environmental assessment of the plan or plans designating renewables acceleration areas”. Where it is determined that the project is not highly likely to give rise to significant unforeseen adverse effects, the project shall be deemed to be authorised.

Conclusion

The Bill contains welcome amendments to the existing legislative framework, in particular, to the judicial review process. However, given the criticism of these measures during pre-legislative scrutiny, we await the publication of the revised Bill in the hope that many of these beneficial measures are retained.

The full benefit of the regulation has not materialised due to an unwillingness on the part of government to designate renewable energy areas. The proposed directive removes the discretion afforded to member states to opt out and instead requires them to designate sufficient renewables acceleration areas within 18 months – this must be welcomed and will have a real impact on the timeline for the consenting of renewable energy projects once adopted.

Stuart Conaty, Partner
Energy and Natural Resources Group
E: s.conaty@beauchamps.ie