Michael McDowell (Independent) | Oireachtas source

I move: "That the Bill be now read a Second Time."

This is a special and unusual Bill. It arises in the circumstances that ESB, through a subsidiary company called Gort Windfarms Limited., took a lease of property in the mountains between counties Clare and Galway. It built a wind farm on the land it leased, with a considerable number of wind turbines and enough capacity to power 30,000 homes. As a result of the construction, it appears that a peat slide took place in a gully about the length of the distance from this Chamber to Kildare Street. I have seen this. The peat slide polluted an adjoining river heavily, causing serious damage to the fish stock. These circumstances gave rise to an entirely justifiable environmental outcry. After a number of legal steps were taken, it was determined that Ireland was in breach of its obligations at European level by having permitted this wind farm to be established and built without proper environmental impact regulations and reports and without proper measures to conserve and preserve the environment. ESB tried to fight these decisions and, eventually, the European Commission started to impose fines on Ireland for non-compliance with environmental impact law at a European level. The consequence of all of that was that the ESB, through its subsidiary, brought an application for substitute consent to allow it to keep the wind farm in existence, notwithstanding the fact that it had been built without appropriate compliance with environmental impact protection law at Irish and European levels.

The application for substitute consent was made to An Bord Pleanála. On 12 March 2021, an inspector's report was prepared which suggested that the wind farm should be retained and the board should provide substitute consent. At a later stage, the board rejected the recommendation of its inspector. It did so on a very narrow ground, which was, effectively, that it was impossible to undo the damage done originally. The inspector's report was very careful and detailed. It pointed out what would be obvious to anyone. I do not know if the Minister of State has had the opportunity but Members of the Independent Group hired a bus and went to inspect the site and saw all of the equipment in operation. It became obvious to us that the valley down which the peat slide had taken place had been completely rehabilitated with grass, shrubs and the like and that there was no imminent or obvious likelihood of any further environmental damage of this kind taking place. The result of An Bord Pleanála's refusal to give substitute consent is that Gort Windfarms Limited., the ESB body that carried out this development, is under an obligation, once an enforcement notice is served by Galway County Council, to undo the development. This will involve dismantling the massive concrete plinths, removing all the generators and roads it built from the mountainside, and, possibly even refilling the lake which was the quarry from which all the stone used in the development came. To carry out works of such enormous size and complexity, you can only say there is a real likelihood of further damage to the flora and fauna of the area and further damage to the environment.As a matter of European law, there is a cardinal principle that people who breach environmental law should not be allowed in general terms to benefit from their own breaches. This means the ESB should not, as a matter of principle, be entitled to benefit from the fact it built a wind farm in contravention of the various standards that were required of it at the time. The European Court of Justice is very clear in its jurisprudence that people who breach the law in these circumstances, unless they can get the equivalent of substitute consent at European level, must undo the damage they have done.

Let us consider an example. Let us suppose a motorway was built in France across a valley and a bridge was built in the bed of a river that did very serious damage to the fish stock, a rare species of snail or a breeding ground for this or that rare animal. It would be impossible, in fact, without removing the motorway bridge to bring back the river to its original condition. This does not mean as a consequence that European law requires the bridge be demolished. There has to be proportionality in all of this. There has to be reasonableness.

All of this was accommodated in the Bord Pleanála inspector's report. The reasoning of An Bord Pleanála itself is staggeringly deficient in that it does not address all of the findings of its inspector. To my mind, that is the most surprising aspect of it. In a very comprehensive analysis of what had happened, which was very serious, and what was possible to do by way of restoration of the environment, the inspector came to the conclusion that demolishing it was not a reasonable or practicable proportionate thing to require and that, therefore, the board should grant the ESB substitute consent to retain it.

Faced with the situation that the highest non-court appellate body in Ireland in planning matters had refused substitute consent, I fully concede the Government found itself in a corner. On the one hand, it appears it was being fined for failing to undo the damage as required by European law and, on the other, due to the decision by An Bord Pleanála to reject its own inspector's report, no substitute consent was available. It was in this context that our group visited the site at Derrybrien. We saw the turbines in operation and the skeleton staff keeping them in operation and proposed that they should be retained. We retained a very skilled parliamentary draftsman in Dr. Brian Hunt to draft legislation for us that would not reward the ESB in any way for its breaches of the law but, on the contrary, would divest it of its wind farm, which would be handed over to another State agency that would operate it in the national interest, and any revenues accumulating from its operation would be applied to environmental projects in the area.

The situation we now find ourselves in is that this country is busily installing gas and diesel emergency generating capacity because our natural gas and other forms of generation are inadequate to ensure we do not have brownouts or blackouts in certain circumstances. It is to avoid this that the legislation has been proposed, and to take into account that the national interest requires us to increase the volume of wind-generated energy rather than rely on fossil fuels of one kind or another, even on an emergency basis, to keep our economy going, our cities lit and industries operating. The legislation speaks for itself. It does not contravene European law. We have been assured of this by high legal authority; I am not operating on my own say-so. It is compatible with European law. It deprives the ESB of the ill-gotten gain of owning or operating a wind farm in the Slieve Aughty mountains, which it built improperly and which caused major and irreversible environmental damage to a river. We have carefully crafted legislation to bring about a common-sense and reasonable outcome that keeps in place the generating capacity for 30,000 homes but deprives the malefactors, namely the ESB and its subsidiary, of the benefit of the wrongful acts they committed.

It has been indicated to me that the Government will oppose this measure. I deeply regret this but I will wait to hear the Minister of State's detailed reasoning for so doing. It is sad that a Government with a Green Party energy Minister is in the position now of ordering the demolition of wind from capacity for 30,000 homes at a time the same Government is reluctantly, and I admit it is reluctantly, investing in further emergency fossil fuel capacity to keep the economy going. It is in this spirit that I propose the Bill. It is an unusual Bill. It is not often that I suggest the Oireachtas intervenes to provide, effectively, a solution to a problem of this kind but it is a necessary one. I look forward to the debate in the House.