Ciarán Ahern (Dublin South West, Labour)

I am glad to have the opportunity to speak on this Bill. There are a few elements to it and I am broadly supportive of what it sets out to achieve, but with some qualifications in certain areas.

The main element of the Bill is the changes to the EPA licensing. I welcome the initiative to take a more streamlined approach. I must admit that I was initially a little uneasy with elements of the licensing reform proposed in the Bill. Almost intuitively, what appears on the face of it to be a softening of environmental impact assessment regulations does not sit entirely comfortably with me, but I understand that there is a balance to be struck here, particularly if it is to enable the development of sustainable infrastructure. If environmental impact assessments are causing delays or are overly onerous in the development of infrastructure like low-carbon energy facilities, anaerobic digestion facilities, wastewater treatment plant upgrades and so on, then, obviously, any effort to address those delays is something we should debate. There is a bigger picture we have to look at. Still, we need to be careful. Public participation is a vital part of the planning process. If exemptions are being granted for part of that process, transparency will be key.

People have a right to be informed. I note that in enabling exemptions for EIAs in cases where a response to a civil emergency is required or for the purposes of State defence, the public participation requirement under the 1992 EPA Act is also exempted. We need to be conscious also of our obligations under the Aarhus Convention. I welcome the fact the Minister will be required to publish the reasons for granting exemption orders but still, no notification or explanation alone is a perfect substitute for meaningful participation. That must be recognised. In the interest of transparency, it is important when an environmental impact assessment derogation is granted that the public receive early notice of the particular project as well as access to key information and that there be some mechanism for observations to be made. A concern I have is that neither civil emergencies nor activities that constitute defence of the State are defined in the Bill. I am particularly interested in the defence of the State element. I have heard the argument on a number of occasions that the Government's proposed State-led LNG terminal is required for energy security purposes, given that a possible threat to our energy security is a hypothetical attack on our interconnectors with Britain. Without well-defined criteria for what activity or piece of infrastructure development constitutes defence of the State, there is a possibility something like a State-led LNG terminal, which will see the importation of fracked gas and open the door to commercial operators, could be granted an exemption under this section of the Bill. That cannot be allowed to happen. There are huge concerns around this facility and what it will mean in terms of other commercials facilities being set up here, such as Shannon LNG or the Predator facility, and the effect that would have on our emissions. It would essentially lock us into fossil fuels for additional decades. I am conscious that even if such an exemption is granted by ministerial order, the EPA is bound by the provisions of section 15(1) of the climate Act, which may act as something of a safeguard. Even still, some clarity on what constitutes defence of the State under the Act would be beneficial.

The provisions for exemptions for civil emergencies are simultaneously more clear-cut while also more ambiguous. There are things like floods, storm damage or other serious weather events, but I can appreciate that they need to be assessed on a case-by-case basis. In other words, I get why exemptions granted in response to a civil emergency might not be best served by having a rigid definition of such emergencies, but there should be some criteria or threshold that must be met in order for a ministerial order to be granted. In circumstances where an emergency derogation is granted, the Minister should be required to publish the rationale and demonstrate that there is a genuine, time-bound emergency and that there is no reasonable alternative other than to grant the exemption. A sunset clause should also be included. It would be beneficial if some kind of after-the-fact reviews were carried out, a sort of environmental audit, after a specified period.

There are also the exceptional circumstances grounds for exemption from EIAs. I am again concerned about the lack of a meaningful definition of what constitutes exceptional circumstances, as some colleagues have already mentioned. It is quite a vague term for something that could be so consequential. I fear that without statutory criteria for what constitutes exceptional circumstances, we leave ourselves open to the risk of inconsistent application by different Ministers and in general could leave the process open to abuse. There has already been a fairly sizeable increase in the number of exempted projects across Europe in the past number of years. Between 2014 and 2017, the European Commission was notified of only three, whereas between 2017 and 2024, 42 notifications were made. More generally, EU case law requires that criteria for exemptions be interpreted narrowly and strictly. I am concerned that things are being left too open-ended by not defining what constitutes exceptional circumstances. We run the risk of enabling a liberal interpretation and putting ourselves at odds with the environmental impact assessment directive. Closer to home, the lack of a definition or criteria for exceptional circumstances also makes it more difficult to test whether a derogation is actually lawful. I accept the good faith this measure is made in and I am sure that more often than not it will be to enable quicker development of positive, sustainable infrastructure, but that should be more clearly articulated in the legislation. It is worth noting that in examining projects that received exemptions up to 2017, the European Commission said:

... the urgent need for the project was such that failure to proceed would have been against the public interest and would have threatened political, administrative or economic stability and security. If such a situation occurs, there is some, though limited, scope to apply this exemption, provided that all conditions are met.

We should clarify what constitutes that public interest or those conditions in the legislation, or in other words, what actually constitutes exceptional circumstances, such as if there was an immediate and serious risk to public health and safety or to the environment if a project was delayed because of a pending completion of an EIA and no alternatives were available. I welcome the fact that where an exemption is granted, the objectives of the environmental impact assessment directive will still have to be met by some alternative means. That is a positive and affords at least some protection in mitigating environmental risks that might arise. Again, however, similar to my point with regard to emergency derogations, a mandatory post hoc review should be carried out and published to better inform considerations on future exemptions and so that we know the actual environmental impact of a given exemption.

Another aspect of the licensing reforms is the introduction of statutory timelines for the issuing of licences by the EPA. That is welcome but if I were to criticise the Bill on this element, it is that they do not appear to have been given much teeth. The introduction of timelines is great in that they will provide some level of predictability and will, I hope, encourage investment in renewable energy or waste treatment facilities, but the concern is that there is very little in the Bill in terms of enforcement. There is a reporting requirement on the EPA, but then what? As far as I can tell, the timelines are not binding; rather, they are just targets. Forgive me, but we do not always do targets particularly well in this country, at least under the past couple of Governments. If we want this element of the Bill to have real meaning, those timelines need to be binding and there have to be consequences for missing them. Merely having to note it in a report if they are missed is not much of a consequence. I do not claim to say what the consequences should be but perhaps we should come back to it on Committee Stage. I am conscious the Government will table its own amendments. I hope that will form part of them. I also note there is no additional resourcing provided for in this Bill but that is also an important aspect. Speeding up the licensing and review process requires committing to increasing the EPA's capacity so it can meet these statutory deadlines. On resourcing, I am talking about both funding and staffing. It is no use introducing these statutory timelines and then expecting them to be met with the same level of resourcing that currently exists. Part of the issue regarding the length of time it takes to issue a licence is the current level of resourcing.

The other element of the simplification of the licensing process this Bill sets out to achieve is the introduction of partial reviews. This is an overall positive step. If we are setting out to reduce the bureaucratic burden, it makes sense a full review is not required where only minor changes are being made to an already licensed facility. Given my previous comments regarding the absence of definitions for what constitutes an emergency or the lack of criteria for an environmental impact assessment to be granted, it is welcome that there are clearer guidelines in this regard on when the granting of a partial review is appropriate. The definition of what constitutes substantial change, thus triggering a full review, and what does not is fair enough. Nevertheless, in the context of wanting to strengthen the Bill, we need to be conscious of the cumulative impact of minor changes. We cannot allow a situation to arise where a particular applicant makes several minor changes over a period to a point that, taken together, they would constitute a substantial change without a full assessment having been carried out. There should be some sort of screening for the cumulative effect and impact of these minor changes alongside the existing operations undertaken by the EPA when applications for a partial review are received. That could be seen as against the spirit of simplifying the process but it is an important safeguard. There is potential for a series of minor changes having a big impact without having been properly assessed.

It has been suggested that these licensing changes will positively impact our ability to develop renewable energy facilities. I do not dispute that. It is welcome we are addressing delays and speeding up the licensing process. However, to focus on one area of renewable energy for production, biomethane anaerobic digestion facilities cannot necessarily be addressed in the licensing system. Several people working in the biofuels industry have got in touch with me to raise concerns around fraudulent palm oil mill effluent, POME, entering the Irish market.

See this speech in context