Catherine Connolly (Galway West, Independent)
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Amendments Nos. 1 to 5, inclusive, are related and may be discussed together.

Jennifer Whitmore (Wicklow, Social Democrats)
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I move amendment No. 1:

In page 4, line 15, to delete “or at alternative appropriate sites”

The reason this amendment has been tabled is that this Bill gives carte blanche to the Government to develop any site and not apply the provisions of the planning Act to that for the purposes of environmental assessment, which is far too great a power. The briefing on the Bill states that section 2 provides that specific electricity generation projects can be designated developments for the purposes of the Bill and that these developments are to be located at Tarbert and Shannonbridge.

Even the briefing note says that these developments will be located at two specific sites. However, the Bill mentions those two sites and also refers to other sites. There is no reason that needs to be expanded and that sort of blank cheque needs to be there. I am asking the Government to remove that, not only to be more specific about this Bill but also because I do not believe that this general provision will comply with the EU's requirements. The EU is very specific. The guidance on Article 2(4) says that "exceptional cases" is interpreted narrowly by the EU and that exemptions should be applied on a case-by-case basis and would not allow, for example, for an exemption for an entire project category. Not only is it intended that the Bill will apply to an entire project category but it is actually saying that it could happen at any site across the entire country. I do not believe that is in compliance with the directive. Not only do I believe that should be removed from environmental and good governance perspectives, but I also believe the EU will have issues with the broad definition of how the Government will apply this Bill.

Darren O'Rourke (Meath East, Sinn Fein)
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I will be brief because the point has been mad with regard to this amendment. I want to make a point about some of the other amendments in the grouping. I support all of them, especially amendment No. 5 in the name of Deputy Bacik. It does what a number of other amendments seek to do, namely to increase transparency, accountability, scrutiny and the assessment of the particular projects that are to be delivered. I have tabled an amendment relating to a review and I notice that another amendment relates to assessing and identifying the climate impact of these projects. These are entirely sensible, reasonable and practical proposals from the Opposition and I really believe the Minister should take them on board and act on them. I am sure that in 30 minutes we will not get to all of them but I think the Minister should support them.

Ivana Bacik (Dublin Bay South, Labour)
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Like others, I hope we will get to debate all the amendments despite the short time available here and the very constrained timeframe for Committee Stage debate. I would like to speak in support of amendment No. 1. I indicated earlier that I would support it. There is a lack of clarity with regard to how other sites might be deemed appropriate and what criteria might apply for deeming them appropriate. I asked earlier that the Minister might give a reason for the clause referring to "alternative appropriate sites". I did not hear a compelling reason. I want to support that amendment on behalf of the Labour Party.

I want to speak particularly to our own amendments within this grouping, amendments Nos. 4 and 5. Amendment No. 5 is the substantive amendment. I thank Deputy O’Rourke for expressing his party’s support for it. It is an amendment that we bring forward in a constructive spirit to ensure more democratic accountability for the provisions in the Bill. I explained the rationale behind it earlier. Clearly the central thrust of the Bill itself is to disapply the Planning and Development Acts and to substitute a ministerial approval process for the development on a temporary and emergency basis of electricity generation projects. We understand that a roughly similar approach was adopted on a non-temporary basis under Part 4 of the Prisons Act 2007 in relation to the construction of new prisons. The key difference in that scheme was the requirement that resolutions would be passed by both Houses of the Oireachtas as a final step in the approval process. We have used that model and mechanism in proposing to insert a similar provision in section 7 of the Bill through our amendment No. 5, which provides:

If the Minister proposes to approve a designated development, whether subject to conditions or otherwise, he or she shall before doing so move a draft resolution in both Houses of the Oireachtas ...

This simply seeks to ensure more transparency is provided for in the process and there is democratic oversight of the ministerial approval process. In no way does it seek to undermine the Minister’s power to make an approval of this nature. It simply seeks to ensure there is adequate scrutiny. When we are debating Bills in such a truncated timeframe and on such an emergency basis, and given that this is the second emergency energy Bill we are being asked to debate and rush through this year, I think it is reasonable to require that there would be that level of democratic oversight within the provisions of this Bill.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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I will speak briefly to amendments Nos. 1 to 3, inclusive. On amendment No. 1, it has already been said that it looks like we are effectively tearing up the Planning and Development Act by pushing this and scrapping environmental impact assessments and habitat directives. At the very least we need to be sure that this applies only to the existing suggested industrial power generation sites that are named here and that no blank cheque is given for the future.

Amendment No. 2 seeks to include in the Bill a provision clarifying that a project is "not likely to have significant effects on ... another state". We are meant to signal to any bordering state anything that might affect it in terms of pollution or environmental impact, etc. To simply remove that provision would go too far. We are pushing a law too quickly to track any development and we are giving a blank cheque in saying that it is unlikely to harm the environment anywhere else. That is why we are opposed to that.

Amendment No. 3 proposes to delete "or any other person" in section 4 of the Bill. We have been told that this is being controlled and arranged by EirGrid and the sites mentioned are operated by SSE and ESB respectively. This suggests that it may be under EirGrid's control or another company's control. It is too open-ended, considering the ground-breaking nature of what we are doing in this legislation. We are conferring on the Minister, EirGrid and SSE the right to pursue a development in a way that tears up the Planning and Development Act and its various checks and balances. We do not want a clause as open-ended as this with regard to who may control it and use these generations. It is a step too far.

Eamon Ryan (Dublin Bay South, Green Party)
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First, I cannot accept amendment No. 1. I understand the Deputies are concerned that the proposal may appear to be open-ended and as such could be used to approve other developments. To be clear, what I am asking the House to approve is the delivery of up to 450 MW of electricity generation for installation by next winter. That is considered an exceptional case for the purposes of Article 2(4) of the environmental impact assessment, EIA, directive. The alternative assessments can be carried out by the State.

The individual component developments, which themselves are the subject of a procurement procedure run by EirGrid on foot of the passing of the EirGrid, Electricity and Turf (Amendment) Act 2022, will be the subject of a further assessment by An Bord Pleanála and approval by myself. Therefore, the Oireachtas is not approving any development or granting a development consent. There is an inextricable link between the preferred sites and the procurement process currently being concluded by EirGrid. Given that this legislation is passing through the Houses while that process is concluding, it is only prudent that we would ensure it will not be necessary to go back to the House again with further emergency legislation in the event that an alternative site might be needed should that process not be concluded. What is important here is that we have sites available to accommodate this temporary generation and that we can move on those sites in the quickest way possible. The removal of the reference to "alternative appropriate sites" would unnecessarily restrict the application of the processes provided for in this Bill to the two named sites and would provide no back-up options for the State. The sites brought forward would be the subject of further assessments and public consultation. What is critical here is time. I cannot concede to an amendment that would tie the State's hands to the detriment of its citizens. I am satisfied that this approach is compliant with the EIA directive and have sought the Attorney General's advice in this regard during the preparation of the Bill. Therefore, I cannot accept the amendment.

I understand the intention of each of them. With regard to amendment No. 2, I fear the Deputies may have misinterpreted the intention of the provision in section 5(3). That provision is being inserted to confirm that no obligations arise in respect of transboundary impacts. In effect, the Deputies in their proposal are concluding that the designated development is not likely to have a significant effect in this or another state. It is in effect making conclusions in respect of the environmental impact assessment. When it comes to the prospective sites, there are knowns and unknowns that should be assessed by the relevant competent authority. We know, given the site locations, that impacts on other member states are not likely, and consequently the transboundary requirements can be considered early and satisfied. With respect to effects internal to the State, we have provided for an assessment of those effects in the law as proposed. By replacing subsection (3) with the conclusion as to the significance of the impacts, the Oireachtas would be supplanting the role of An Bord Pleanála as provided for here, which would not be appropriate.

I am not saying there will be significant environmental impacts on the receiving environment in the locations but rather that I wish the relevant competent authority would review the information presented to us and provide me with a reasoned opinion in advance of approving the proposed development. This is not an unreasonable ask. I ask the Deputies to consider the effect of their amendment, if approved, on the approvals process. The formulation as proposed would not be appropriate, so I ask that the Deputies withdraw the amendment. In the absence of that, we on the Government side cannot accept it.

On amendment No. 3, I appreciate again the Deputies' intentions but cannot accept it for reasons related to flexibility and adaptability. It would seem to be unnecessarily limiting to restrict the applicant to a particular class of person. That said, and as explained before, the sites are known. We know what needs to be done, and where. While we have built some flexibility into the legislation, this is not unlimited. It is directly related to other processes being undertaken further to the aforementioned EirGrid, Electricity and Turf (Amendment) Act 2022 and directions issued by the Commission for Regulation of Utilities and me. This is not a free-for-all; this is a targeted set of measures aimed at ensuring security of electricity supply for the winter of 2023-2024. It is limited in scale by reference to the 450 MW, and it is limited in location as there are only a very limited number of sites that can technically accommodate the proposal. The scope of any development to be carried out is limited also by section 8, and I cannot therefore accept the amendment.

Amendments Nos. 4 and 5, in the name of Deputy Bacik, complement each other. They relate to the insertion of an additional Oireachtas approval between the assessment of An Bord Pleanála and the approval to be issued by the Minister. I propose to reject these amendments as they would add an unnecessary step to the process that could delay the commencement of on-site works. Amendment No. 4 requires a Minister to only approve the designated development further to an additional process set out in amendment No. 5. That process requires the movement of a resolution in both Houses of the Oireachtas, with additional reports and conditionality over and above what is set out in the legislation. I reiterate that the purpose of the legislation being proposed is to remove unnecessary administrative steps so the relevant approvals can be issued as soon as may be possible. There is already a process available to the Minister to approve a proposed development to address an emergency under section 181(2)(a) of the Planning and Development Act 2000. I have done this already for a development at the North Wall power generation station. What the Deputy is proposing goes beyond the existing provisions, and it would seem counter-productive to concede to such an amendment where time is of the essence. The process I am proposing is shorter than the one already in the Statute Book.

I want to address some of the potential concerns of the Deputy. The proposed legislation requires me to arrange for an assessment of the proposed development in advance of approval. This goes beyond the strict requirements of the environmental impact directive, whereby member states are required merely to consider whether an alternative form of assessment would be appropriate. Therefore, an assessment will be carried out, although it may happen in a phased manner, something that is suggested in the commission guidance on this matter. Moreover, I have included provisions to comply with the birds and habitats directive to ensure Ireland complies with its obligations under the two directives. These are set out in section 6. It is my intention to ensure there is public consultation on these assessments, which will allow for some of the public scrutiny the Deputy wants.

I draw the Deputy's attention to section 7(1), under which I am required to take into account the assessments of the board and any conditions recommended by it when approving a development. It is my intention to do just that. In this regard, it would appear that the Deputy's proposal would not only add an unnecessary step to the process where time is of the essence but would also serve as a retrograde step in terms of powers already available to a Minister under the planning Acts. Therefore, I cannot accept the amendments.

Ivana Bacik (Dublin Bay South, Labour)
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I thank the Minister for his very full response on our amendments, Nos. 4 and 5. He referred us to section 7(1), but our concern in this regard is that a Minister is not required to take into account the assessments and conditions. Rather, it states "The Minister may". That is the basis for amendment No. 4, which would insert "Subject to subsection (2), the Minister may". We felt the legislation could be strengthened to give another layer of scrutiny in the decision-making process. We just want to ensure transparency within the process given that it is overriding normal processes in the interest of urgency and because there is an emergency. We accept all that. I take the Minister's point on public consultation and the sunset clause that we discussed on Second Stage but section 7(1) is somewhat weak and does not quite live up to the Minister's indication that the legislation ensures another layer of accountability within the process.

Eamon Ryan (Dublin Bay South, Green Party)
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Section 7(1) states: "The Minister may, having considered an application made to him or her under section 4". This is done having taken into account the assessments carried out by the board under section 5(2) and section 6(1). An Bord Pleanála is independent in this. It will carry out the assessment. It has the independent inspectors. If, according to section 7(1), it sets out conditions or recommendations, these would limit or affect what a Minister would consider doing in approving or refusing a development subject to conditions. The ministerial powers are very much framed within the context of getting the assessment from An Bord Pleanála, which is appropriate.

Ivana Bacik (Dublin Bay South, Labour)
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The drafting could be strengthened without in any way changing the substance. I refer to a requirement specifying that, in considering an application made to him or her, the Minister shall take into account the assessments. This would strengthen the provision and give effect to it in the way the Minister has indicated. That is clearly his intention but it is just a matter of ensuring it is made clear in the text of section 7(1). The drafting could have been clearer to ensure that is the intent.

Eamon Ryan (Dublin Bay South, Green Party)
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As I understand the drafting, the Minister does have to take into account the assessments. What is in the legislation is as powerful grammatically as "shall". It is clear that it is a case of "having taken into account". The Minister has to take into account the recommendations, assessments and conditions set out by the board.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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I move amendment No. 2:

In page 4, to delete lines 21 to 25 and substitute the following: “(3) The designated development is a project not likely to have significant effects on the environment in this or another state.”.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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I move amendment No. 3:

In page 4, line 30, to delete ", or any other person,".

Ivana Bacik (Dublin Bay South, Labour)
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I move amendment No. 4:

In page 5, line 26, to delete "The Minister may" and substitute "Subject to subsection (2), the Minister may".

Ivana Bacik (Dublin Bay South, Labour)
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I move amendment No. 5:

In page 5, between lines 35 and 36, to insert the following: “(2)(a) If the Minister proposes to approve a designated development, whether subject to conditions or otherwise, he or she shall before doing so move a draft resolution in both Houses of the Oireachtas—

(i) setting out the particulars mentioned in paragraph (b), and

(ii) authorising the Minister to approve the development.

(b) The particulars referred to in paragraph (a)(i)are—

(i) a description of the designated development,

(ii) the estimated type, quantity and duration of any emission of greenhouse gases expected to result from its operation,

(iii) the assessments carried out by the Board under sections 5(2)and 6(1)and any conditions recommended by the Board arising from those assessments,and

(iv) any conditions proposed by the Minister under subsection (1)(c).

(c) If the draft resolution is approved by each House of the Oireachtas, the Minister may approve the designated development.”.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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I move amendment No. 6:

In page 7, lines 19 to 21, to delete all words from and including “to” in line 19, down to and including “necessity” in line 21.

In this section, following the reference to the Climate Action and Low Carbon Development Act 2015, the words "to the extent that they consider practicable, taking particular account of the said exceptional circumstances and urgent and compelling necessity" are added. Already, this Bill is giving a significant amount of leeway and power to the Minister and this is pushing it a bit, if the Minister does not mind me saying so. What is happening is the Green Party and the Government are tearing up the Planning and Development Act and gutting the Climate Action and Low Carbon Development Act by trying to bring in this clause. We want to see some constraints, even if they are nominal, to have regard to certain things that are effectively being cast aside in the rush to get these gas-fired generation plants through to keep the data centres humming.

Eamon Ryan (Dublin Bay South, Green Party)
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I thank Deputy Smith for setting out the proposed amendment. I agree with her that the Climate Action and Low Carbon Development Act and the provisions therein for public bodies must be followed in a manner which is consistent with the latest climate action plan. That is very important and I fully agree with it. This particular legislative provision was inserted on the advice of the Attorney General in response to recent decisions that could have an impact on the delivery of this much-needed electricity generation infrastructure. I was not willing to take the chance that this measure would be subject to legal challenge that would see it in judicial review proceedings or other mechanisms, which would mean we would not be able to deliver it in the necessary time. While I have every intention of acting in a manner consistent with the climate action plan, I will do so in a practical way, having regard to the seriousness of the current situation and the compelling necessity to deliver these projects. The proposed provisions merely provide clarity as to what will feed into that decision and, as I indicated, have been devised on the advice of the Attorney General to protect from further delays, which is the last thing we need.

Catherine Connolly (Galway West, Independent)
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Amendment No. 7 is out of order.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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I move amendment No. 8:

In page 7, between lines 25 and 26, to insert the following: "Reports

12.The Minister shall, six months after the commencement of this Act, provide a report on the likely CO₂emissions from the 450 megawatts of temporary emergency electricity generation plant and shall thereafter provide a report, as soon as practical, detailing actual CO₂emissions in subsequent years from these generators.".

The amendment basically seeks a report. It is important that we get some measurement of the CO₂emissions from the temporary 450 MW emergency electricity generation plant. A report should be provided as soon as practicable, detailing the actual CO₂emissions for however many years they are produced. The Minister will probably say this is unnecessary as all emissions must be counted, but we must count these emissions separately to determine exactly what damage we are doing as otherwise we are acting in a vacuum. The emissions must be measured. We need to know that they will not be part of the carbon trading scheme in the European Union. Perhaps the Minister would clarify that. It is a simple request for a report on the level of CO₂emissions that will emanate from this extraordinary project.

Darren O'Rourke (Meath East, Sinn Fein)
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May I speak to my amendment at this stage?

Catherine Connolly (Galway West, Independent)
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No. We are about to run out of time anyway.

Darren O'Rourke (Meath East, Sinn Fein)
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I will speak to Deputy Smith's amendment on the report. My amendment is on the same theme. As I mentioned, there is a need to measure emissions. This Bill is emergency legislation introduced in exceptional circumstances. There are significant risks associated with it and the opportunity for increased scrutiny, accountability and review is an important one that should be taken.

Eamon Ryan (Dublin Bay South, Green Party)
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I appreciate that there are concerns with respect to the impact on the environment, in particular on CO₂emissions, but I consider the proposed amendment to be unnecessary and potentially restrictive given its construction. I have provided sufficient latitude in the Bill on the timing of the alternative assessments that will be required, as it is likely, further to the guidance published by the Commission on Article 24 of the directive that the assessments will be carried out in a phased manner. Consequently, it would be preferable not to require specific reports at specific times and to unnecessarily restrict the next steps of the process. There will be environmental assessments and the impacts on air quality and climate will be assessed.

I note, however, that these units will only be used occasionally during times of peak demand coinciding with low wind and interconnector availability. They are not expected to have a significant impact on carbon emissions. In addition, the units are likely to be more efficient and to operate to a higher emissions standard than older fossil fuel generators in the system currently. It is possible, therefore, that they may have a slightly positive benefit on carbon emissions when compared with the status quo, although that is something that must be assessed by the relevant competent authority. While I consider the impact on climate and CO₂emissions to be important considerations in any new development, the overriding interest in this case is served best by providing the greatest flexibility in the type and times of the assessments. For this reason, I will be rejecting this amendment.

It is important to add that a low-carbon trajectory for electricity will require us to back up fossil fuel for the next decade and switch thereafter to hydrogen and zero-carbon gas systems. Any accurate assessment of how we meet our renewables and climate targets shows that we need this sort of back-up power generation. I believe it is fully in compliance with the climate plans and the emissions reductions trajectory on which we are set.

Darren O'Rourke (Meath East, Sinn Fein)
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I move amendment No. 9:

In page 7, between lines 25 and 26, to insert the following: “Report on the Implementation

12.(1) The Minister shall, within 6 months of the passing of this Act, lay a report before both Houses of the Oireachtas following a post-enactment review.

(2) Within one month of the laying of the report before both Houses of the Oireachtas, the Minister and EirGrid shall account for the performance of their functions to the Joint Oireachtas Committee for the Environment and Climate Action and shall have regard to any recommendations of the Joint Committee relevant to its functions.

(3) The Minister and EirGrid shall provide any information requested by the committee within two weeks of the receipt of such requests.”.

The amendment seeks to have a post-implementation review and that the Oireachtas Joint Committee on the Environment and Climate Action would have a role in regard to that. This is emergency legislation and there are significant risks associated with it. I do not expect that the Minister will accept it but he should.

Catherine Connolly (Galway West, Independent)
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Will the Minister accept the amendment? We have run out of time.

Eamon Ryan (Dublin Bay South, Green Party)
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I cannot accept the amendment.

Catherine Connolly (Galway West, Independent)
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The time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 25 October: "That in respect of each of the sections undisposed of, this section is hereby agreed to in committee; the Title is hereby agreed to in committee; the Bill is accordingly reported to the House without amendment; Fourth Stage is hereby completed; and the Bill is hereby passed."

Catherine Connolly (Galway West, Independent)
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The Bill will now be sent to the Seanad.