Michael McDowell (Independent) | Oireachtas source

I move amendment No. 10:

In page 9, line 14, to delete “and”.

Tá fáilte roimh an Aire Stáit ar ais go dtí an Teach seo. In January 1998, two applications for wind farm developments from two separate developers, Saorgus Energy Limited and B9 Energy Services Limited, were made to Galway County Council, seeking permission to erect 46 wind turbines on three sites in the locality of Derrybrien. Permission was granted to Saorgus for 46 turbines in March 1998. In the same month, B9 was granted permission to erect 23 turbines. In all, 69 turbines were to be erected in the area of Derrybrien. Local residents appealed the decisions to An Bord Pleanála but the local authority's decision was upheld by the board.

In 2000, Saorgus applied to Galway County Council for a further 25 turbines, which would bring its total to 71. Initially, Galway County Council refused permission but on appeal the developers were granted planning permission for these developments. In consequence, Saorgus leased an 850 acre site at Derrybrien and construction commenced in October 2003. There was then a landslide of peat causing environmental damage to the site at Derrybrien when the contractors were constructing the wind farm. Huge amounts of peat were dislodged and slid across the site, polluting a local river and resulting in the death of 50,000 fish.The landslide meant that 450,000 tonnes of peat, which is a lot of peat, was spread over an area of 25 ha which is more than 50 acres. That resulted in an enormous movement of 250,000 tonnes of material in a downwards direction. That disaster led to An Bord Pleanála refusing substitute consent to the ESB subsidiary. The wind farm capacity that was affected by that refusal of substitute consent was 59.5 MW which is a substantial development especially when we consider that the island overall has a generating capacity of 5,600 MW. It was not some small-pocket development but a substantial one.

In October 2004, ESB International and Ascon, a construction company, were prosecuted and fined at Gort District Court for allowing polluting matter to enter the head waters of the river and derisory fines of €1,250 were imposed on each company. In 2005, the following year, the European Commission announced it would prosecute Ireland in the European Court of Justice in respect of these issues. This was probably as a result of a direct intervention by environmentalist volunteers at European level.

In 2019, the State was fined €5 million over its failure to comply with EU legislation that might have prevented the landslides linked to the construction of a wind farm in 2003. This fine has since been increased to €17 million. The fine in question was largely due to the State's failure to carry out an environmental impact assessment on the site, as was required by European law for a development of that kind. The ESB then lodged a substitute consent application under the amended planning law through a remedial environmental impact assessment report in June 2020 to regularise the project's planning status. Later, An Bord Pleanála decided not to grant substitute consent for the development.

The situation now is that 70 turbines in the Slieve Aughty Mountains must be removed after 20 years of controversy. The site has already cost the Irish taxpayer €17 million in fines and now this badly needed infrastructure must be removed in its entirety. The rather futile obligation is being cast on the ESB and the developers to try to reinstate the site to the state it was in prior to the landslide. In other words, the matter is to be remedied. The reason that substitute consent was not granted was because it was effectively impossible to do so in the circumstances that I have described.

I would like to place a number of reflections on the record. First, our planning laws were grossly inadequate insofar as polluting the river ended up with €1,250 fines - virtually equivalent to the fine for not paying for a television licence or for a motoring offence. Second, the Irish State has had to pony up €17 million to the European Union by way of penalties instead of having a statutory regime which could have approached the matter on the basis of redress consisting of the developers having to share the cost of the fines in question. There should also be an estimate as to whether the actual demolition of the wind farm and the reinstatement of the site is environmentally justified. We now have what I and the movers of this amendment consider to be a wholly unjustified situation where more damage will be done to the environment, valuable resources will be wasted and badly needed wind energy infrastructure will be decommissioned and destroyed,all to make a point that at the very beginning an environmental impact assessment should have been carried out.

I wonder whether Ireland is unique in this and whether this would happen in any other European state. I wonder whether the powers that be would not have found some solution to impose upon the people - who made the original mistake of not seeking an environmental impact assessment - the burden of remediation while retaining the development. I wonder about the absence of proportionality that 20 years after all this was done - we are now in 2022 and the work was carried out in 2003 - somebody would actually ask where the common sense in all this is. Is the environmental tail wagging the environmental dog in the sense that a purist view of this is being allowed to produce a result which flies in the face of what most people would consider to be proportionate and common sense?

Our amendment proposes to amend section 13 to provide that as part of the process of consideration of a substitute consent application, there should be "an independent review of the environmental, financial and community impact of the existing development or the decommissioning of the existing development on the lands under consideration." It is not very much to ask that in addition to the retrospective look-back aspect which is currently enshrined in law, somebody should actually consider the practicalities, proportionality and reasonableness of requiring a development to be nullified and reinstatement of the site - insofar as that could ever be done.

I understand that the Minister of State and his departmental officials are in the sad position of having been advised that there is nothing we can do at this point. We cannot go to Europe on our knees and say, "Look we've paid our fines. This won't happen again. We've amended the law." There is a positive environmental advantage in keeping this wind generation facility in place especially in a country which is making - I hope the Minister of State does not take this as a barbed political point - slow enough progress in substituting renewable energy generation for non-renewable fossil fuel sources of energy at a time when according to all the prognostications we will fail to meet our 2030 targets. We are trying to electrify the country and to drive a revolution in our energy requirements. However, as a result of a failure to carry out an environmental impact assessment between 1999 and 2003, we are actually destroying alternative energy facilities at great cost.Nobody has yet put a figure on the cost there will be in demolishing this facility. I am not competent to say whether the turbines can be re-erected anywhere else. Nobody has come out clearly and said they can be shifted somewhere else or even that the mechanical infrastructure can be saved. I am deeply sceptical, however, about the environmental sense of attempting to wipe out this facility on the basis of a historic error of this kind. I will put on the record I do not believe there was mala fidesat any point in the whole process. I do not believe people said, "We have an obligation to do that but Europe can get lost. We are going to cut a corner here." I do not believe the ESB and the planning authority would do that or that An Bord Pleanála at the time, when it approved these additional facilities, consciously decided to breach European law.

Senator Higgins talked about the necessity of preventing people from riding roughshod over European law and then benefiting from it, but if it all comes down to two fines of €1,250 and the obligation now cast, in effect, on nationally owned entities to spend more money on demolishing all of this structure, where is the common sense in all this? What are we trying to achieve? Is Europe trying to say to us we were very naughty in 2003, An Bord Pleanála should have insisted on an EIA then, should not have done X, Y and Z, and should not have granted the appeals in question? There comes a time in virtually every aspect of human affairs when we cannot put the toothpaste back in the tube. That is what this decision by An Bord Pleanála and the fact we cannot go to Europe to ask it to just take a common sense view of the matter means. We are now stuck with a statutory outcome from An Bord Pleanála and the destruction of very valuable infrastructure in an utterly futile effort to remediate that which is irremediable in any event.

To go back to the matter of the landslide, or turf slide or bog slide, that took place, presumably the developers did not foresee that was likely to happen. Presumably, if they had foreseen the risk of that happening, they would have taken steps to prevent it. I do not know what the engineering steps would have had to be, but presumably they would have done earthworks, earth removal works, or installation works in a different way, or taken precautions to insert pilings or whatever, to prevent an event of this kind from happening. We are now in the utterly ridiculous situation, having spent €17 million paying penalties to the European Union, of destroying extremely valuable infrastructure and pretending we will remediate that site at whatever cost will eventually fall on the community.

I fully accept the need for EIAs. In this case, I do not believe there was ever a conscious decision to circumvent the requirement for an EIA or that An Bord Pleanála was party to such circumvention. It seems to me, therefore, that in circumstances such as these in future, we should not merely take a look at the wrong that was done but also look at the extent to which it is proportionate and in conformity with common sense, the good of the environment and the good of the community to take a different course rather than refusal of a substitute consent. Whatever steps have to be taken to ensure that, in this case, the significant cost to the Exchequer, and the cost that will be borne by whoever has to pay the bill for attempting to remove all this, should not be borne by the community but should somehow be levied on the profits that would arise from Derrybrien, if the wind farms were left intact. It is in that spirit that I move this amendment.