Ossian Smyth (Dún Laoghaire, Green Party) | Oireachtas source

I thank the Acting Chair and Senators for the opportunity to present the Environmental Protection Agency (Emergency Electricity Generation) (Amendment) Bill 2023, which I am grateful to introduce to Seanad Éireann.

Although many Senators will be familiar with the exceptional energy security challenges that face us, as the Minister for the Environment, Climate and Communications, Deputy Eamon Ryan, spoke about these matters when we were debating the Development (Emergency Electricity Generation) Act late last year, which I will refer to as the Act of 2022, it is important to take this opportunity to reiterate the complex situation that we find ourselves in. Against this backdrop, I will also describe the sections of the Bill in detail and, with regard to its main provisions, set out the background and why they are needed. However, my overarching message today is that it is essential that this legislation is passed swiftly to deliver the supply that we need in time for winter 2023-24 and, therefore, I seek the support of Senators to achieve that.

First, I will discuss the generation capacity shortfall that exists and which the provisions in this Bill seek to alleviate. Second, I will reaffirm the urgency of this Bill in order to enable delivery of emergency capacity to maintain a secure electricity supply for customers. Finally, I will outline the Bill.

The legislation before Senators today is part of the overall legislative package required to facilitate delivery of the required 450 MW of temporary emergency generation capacity identified by the Commission for the Regulation of Utilities, CRU, as urgently required to mitigate the security of supply risk for winter 2023-24 and for subsequent years. The recent Act of 2022 provides for the disapplication of the planning and development Acts and of requirements under the environmental impact assessment, EIA, directive, for designated developments comprising the installation of up to 450 MW of temporary emergency electricity at the specified sites at Shannonbridge and Tarbert, or at alternative appropriate sites, on the grounds that they constitute exceptional cases for the purposes of Article 2(4) of the directive, and that the application of the directive to these projects would adversely affect their delivery.

This Bill intends to ensure that legal provision is made for the processing of industrial emission licence applications under the Environmental Protection Agency Act 1992, in respect of activity involving the designated development at Shannonbridge and Tarbert, in the context of Article 2(4) of the EIA directive, and to ensure that such applications can be processed in a timely manner. This is to facilitate generation, if the applications are successful, in time for winter of 2023-24. It is the next step in the legislative package that is needed.

In the normal course of events, an applicant for a licence for an activity that is likely to have significant effects on the environment would be required to submit an environmental impact assessment report, EIAR, to the Environmental Protection Agency, EPA, for its consideration of the application and the agency would be required to carry out an EIA to feed into its licence determination. The process of producing an EIAR is lengthy and has a number of seasonal components that cannot typically be accelerated. In the normal course of events, the likely timescale for EIAR preparation for power station developments of this type is approximately 12 months, depending on site-specific factors. Not addressing the requirement to have a full EIAR accompany a EPA licence application for these designated developments, with the associated EIA required to be carried out by the EPA, would mean that licence applications could not be submitted until the third quarter of 2023, at best, resulting in a situation where the agency would have insufficient time to consider the licence application, in order to issue a final decision by the end of winter 2023-2024.

Just as was done in respect of the development aspect previously, under the Act of 2022, it is now necessary to provide for the exemption under Article 2(4) of the EIA directive that the Oireachtas has already deemed appropriate, now in the context of the consideration of the industrial emissions licence applications, and to review the current licensing processes provided under the Environmental Protection Agency Act 1992 for designated development, in order to give the projects the opportunity of receiving a final determination on their licence applications to facilitate, subject to acquiring the necessary consents, generation in the fourth quarter of 2023.

On 17 February 2023, the Minister, Deputy Eamon Ryan, received applications from the ESB for designated development at Shannonbridge power station site, County Offaly, and from SSE for a designated development at Tarbert power station, County Kerry, under section 4 of the Act of 2022 for an approval under section 7 of that Act. As is required, the Minister, Deputy Ryan, has arranged for An Bord Pleanála to carry out the required assessments under sections 5 and 6 of the Act of 2022. On Monday, 20 February 2023, the public consultation opened, and this will continue until Thursday, 23 March 2023, inclusive. These applications are subject to the most comprehensive environmental assessment possible, using the information available at this time, so that the overarching objectives of the EIA directive are met in a manner that will achieve the delivery of the projects in time. The timeframe for the delivery of significant temporary emergency generation is still on track for the end of the year 2023. However, this further legislative change is required in terms of the licensing of the temporary emergency generation plants.

I am now going to provide a section-by-section summary of the Bill. There are nine sections in the Bill. Section 1 is a standard provision providing for a definition of the Environmental Protection Agency Act 1992, for the purpose of the Bill. Section 2 proposes to amend section 3 of the Environmental Protection Agency Act 1992, or the Act of 1992, to include in its definitions the Development (Emergency Electricity Generation) Act 2022 - the Act of 2022 - a definition for "designated development" and assigns a meaning for an application for a licence that forms part of a designated development as a "designated application".

Section 3 proposes the insertion of section 82C in the Act of 1992 to state that the exemption under section 5(1) of the Act of 2022 applies to an application under Part IV of the Act of 1992 in respect of activity relating to designated development. Furthermore, section 3 provides, by way of inserting section 82D, that the agency is performing its function in respect of designated development, and that it shall do so in a manner consistent with the plans, strategy, framework and objectives referred to in section 15(1) of the Climate Action and Low Carbon Development Act 2015, to the extent that the agency considers practicable, taking particular account of the said exceptional circumstances and urgent compelling necessity.

Section 4 proposes to amend section 83 of the Environmental Protection Agency Act. Section 83 concerns the determination of applications for licences and the amendments proposed. It inserts a definition of the alternative assessment and associated environmental report that form part of that process. Provisions proposed in this section disapply, in the case of designated developments, certain provisions of section 83. Section 4 also provides for an alternative assessment to be carried out by the agency and for designated applications to include the environmental report prepared in accordance with of the Development (Emergency Electricity Generation) Regulations 2022. The process and format for alternative assessment will be set out in regulations under section 89 of the Act of 1992. This is provided for under section 8 of the Bill.

Section 5 proposes to amend section 87 of the Environmental Protection Agency Act to disapply, in the case of designated applications, provisions of section 87 that relate to planning and environmental impact assessment. Instead, a new provision, 87A, is proposed to be inserted for designated applications at section 6. In addition, it is considered appropriate and necessary, given that the timeframes associated with the existing procedures and the requirement for a decision to be made on the licence application to facilitate generation in the fourth quarter of 2023 are incompatible, to replace the current two-step decision process of issuing a proposed determination and a final decision with one consultation period on the licence application and associated documents. This provision will only apply to licence applications from designated development. It is worth noting, separately, that there will have been two rounds of consultation on the specific project to deliver the approximately 450 MW that is required, taking the assessment of An Bord Pleanála into account.

Section 6 provides for a new provision for designated applications, section 87A, to be inserted into the 1992 Act. The intention is to ensure the agency does not grant a licence in respect of a designated development unless the Minister has approved the designated development in accordance with section 7 of the Development (Emergency Electricity Generation) Act 2022.

Section 7 proposes inserting a further new provision, section 88A, after section 88 of the 1992 Act. Section 88A proposes procedures for the agency to take alternative assessment into account before making a decision on a designated application. These procedures will be set out in regulations. Section 88A(2) enables the agency to incorporate as a condition to a licence any feature of the project or measure envisaged to prevent, produce or offset significant adverse effects on the environment. Section 88A(3) ensures that the agency incorporates into its decision documentation relating to the alternative assessment as may be prescribed for the purposes of ensuring the objectives of the EIA directive are met. Section 88B is provided for to oblige the agency to inform the public and other persons of its decision in respect of a designated application.

Section 8 proposes an amendment to section 89 of the 1992 Act to enable matters to be prescribed in relation to the alternative assessment procedures for consultation to be carried out by the EPA. It includes a provision that as part of the alternative assessment, the agency is obliged to assess the impacts, if any, on natural habitats, fauna and flora. That is in accordance with Council Directive 92/43/EEC, as amended, including the requirement to consider whether there is a need for a derogation for the purpose of Article 16 of that directive in respect of a designated development.

Section 9 comprises the Short Title and Commencement provisions.

I have outlined the main provisions of this emergency measures Bill and provided additional detail on the sections. I want to clarify that by passing this legislation, the Oireachtas would not be approving or providing consent for any licensable activity. Rather, it would be providing that as a result of the predetermination that an exceptional case exists for the purposes of Article 2(4) of the EIA directive, an alternative environmental assessment can be carried out to support an industrial emissions licence determination. It further provides for streamlined and accelerated consenting procedures relating to those licences. I wish to stress again that these proposals are confined to licence applications associated with designated development sites, and would only be operated if and when they are required for emergency purposes.

I hope this is of assistance to Senators. I am looking forward to an informed and meaningful debate and to working constructively with Senators on all sides of the House.