Joe O'Brien (Dublin Fingal, Green Party) | Oireachtas source

I thank Senators McDowell and Boyhan for their work on drafting this Bill and for their opening remarks. I welcome the opportunity to address the House on the Derrybrien wind farm.

Derrybrien wind farm has had a long and difficult history. It is owned by Gort Windfarms Limited, a wholly-owned subsidiary of the ESB. Gort Windfarms commenced construction of the wind farm in June 2003. However, work was stopped in October 2003 due to a peat slide that resulted in an ecological disaster polluting the local river, causing the death of approximately 50,000 fish and lasting damage to the fish spawning beds. At that time emergency works were undertaken to protect watercourses, roads and property. Construction of the wind farm was completed in 2006. The Derrybrien wind farm was first referred to the Court of Justice of the European Union by the European Commission in 2006. In 2008, the court delivered a judgment against the State concluding that Ireland had failed in its obligations to assess environmental effects in accordance with the environmental impact assessment, EIA, directive prior to the granting of planning permission for the wind farm. In 2019, there was a further ECJ judgment against the State for failure to comply with the 2008 judgment. This resulted in the application of fines against the State until the terms of the judgment were met, including a lump sum fine of €5 million and daily fines of €15,000. The 2008 judgment had required that the Derrybrien wind farm be brought into compliance with the EIA directive by way of substitute consent. The Planning and Development (Amendment) Act 2010 introduced substitute consent provisions into the Planning and Development Act 2000. This provides for the potential regularisation of development consents that had previously been granted permission in breach of the EIA directive. In August 2020, Gort Windfarms, as owner and operator of the Derrybrien wind farm, submitted a substitute consent application to An Bord Pleanála. On 4 February 2022, the board issued its decision refusing the application. This meant that the development is an unauthorised development in accordance with the Planning and Development Act. Following An Bord Pleanála's decision, the ESB confirmed that it would comply with the decision to cease commercial operations and announced the permanent closure of Derrybrien wind farm. The ESB has further stated its intention to decommission the wind farm and associated elements, and is engaging with the local authority. The decommissioning of the site may require a separate EIA. While the European Commission confirmed in January 2023 that compliance with the judgment was achieved with the refusal of the substitute consent application by An Bord Pleanála, the case against the State remains open and the Commission has requested that it be kept updated on developments relating to the enforcement procedure and decommissioning of the wind farm.

The State has already lost two infringement cases at the ECJ in respect of this site on the basis that this project lacked an appropriate environmental impact assessment. A substitute consent application by the ESB was refused by An Bord Pleanála in February 2022, meaning the wind farm is now an unauthorised development and subject in law to enforcement by the local authority. The provisions in this Bill could set an undesirable precedent that would severely undermine the integrity of the planning system. Reopening the site would be contrary to the commitment given to the European Commission and contrary to the outcome that has allowed for the cessation of the original infringement fines against the State. It would also likely result in further fines for the State, which would be unprecedented where all necessary steps to resolve previous infringements have been taken. The Bill does not address the adverse finding of An Bord Pleanála and the environmental assessment already carried out, and ignores the result that this development is unauthorised. Any new owner would require planning permission and there are no grounds for expecting a different outcome to the previous applications. Legal challenges are almost inevitable if the wind farm recommences operation.

With respect to the environmental contribution of this wind farm to Ireland's renewable energy and emissions targets, the Department of the Environment, Climate and Communications considers that it would likely be limited, even if it had continued to operate. The Department is also of the view that the continued production of wind energy from Derrybrien is not expected to have a material impact on ensuring the security of Ireland's electricity supplies. It is notable that there appears to have been no consultation with any of the key stakeholders relevant to this Bill, such as the ESB, the Western Development Commission or the relevant line Departments. The proposed role of the Western Development Commission to manage the Derrybrien wind farm, which is a substantial entity with a complex background and numerous outstanding issues, would pose intricate challenges for a non-commercial statutory body, requiring specialised knowledge and expertise of the renewable energy sector as well as highly technical, operational and regulatory capability. Impending complex challenges include obtaining planning permission, which is unlikely to be forthcoming for the reasons set out, dealing with legal challenges against any planning application or the continued operation of the wind farm, further EIAs as well as the challenges and costs of decommissioning the site in the likely event planning consent is not obtained. The Western Development Commission is non-commercial statutory body established under the Western Development Commission Act 1998 to promote and encourage economic and social development in the western region. It manages the western investment fund to provide equity and social finance to startup and scaling companies, community and social enterprises and strategic initiatives. However, it does not play a role in the day-to-day management or operational activities of these enterprises. Transferring operational management of a wind farm to the Western Development Commission is not in the State's interests, nor does such a move resolve the aforementioned issue of the site being an unauthorised development, which still applies irrespective of site ownership.

The Government, having considered the proposals in the Bill, has decided to oppose it for these reasons.