Pat Swords v The World

This post was written by Richard Tol

The UN-ECE Compliance Committee of the Aarhus Convention has now ruled in the case Pat Swords v European Union. The ruling has implications far beyond this case.

To recap, Pat is no friend of renewable energy. He complained about the government’s renewable energy policy to every authority in Ireland and was either ignored or told to go away. So he complained to every European authority with the same result. And so he complained to the United Nations Economic Commission for Europe under the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access of Justice in Environmental Matters.

In February 2011, the Committee admitted Pat’s complaint. This is significant. Ireland did not ratify the Aarhus Convention. The EU did, however. Because Brussels handed down its renewable energy policy, Dublin is bound by Aarhus.

This sets a precedent. Any Irish policy that is somehow proscribed, inspired, or constrained by EU policy, is now subject to Aarhus.

The Committee has now issued its draft ruling. It is long and complex. It is silent on the policy itself. On procedural issues, two points stand:

  • Ireland made a mess of its public consultation on the National Renewable Energy Action Plan.
  • The European Commission failed in its duty to supervise Ireland.

So

  • Anything in the NREAP can now be challenged.
  • Consultation on the NREAP was not pretty, but it was not particularly ugly by Irish standards either. Other government plans can now be challenged too.
  • And the EU has been told to intrude more.

Tags:

36 Responses to “Pat Swords v The World”

  1. The Dork of Cork Says:

    @Tol
    I really don’t care where or what Pat Swords is coming from here - its too weird even for me..

    I don’t believe in Gas plants providing the base load for any electicity as it is a great waste of a high quality fuel - But what is the total cost of the Irish Wind energy adventure ?

    Surely Swords is at least right that the Byzantine nature of European energy policey has been a disaster for the Continent and especially the periphery which has been left exposed to the energy four winds.

    Irish Wind barely registers on the Yearly TPES charts.
    I would take a guess the total “investment” is equivalent to at least 1 Sizewell B type PWR that would cover Half our summer base load now.

  2. Paul Hunt Says:

    No disrespect to Pat Swords - one can only admire his doggedness and determination - but there is far less to these findings and recommendations than meets the eye. All it means is that the Commission and relevant Irish Government Departments will be far more careful and far more cunning in future.

    All public consultations are a farcicial optical illusion. The economic regulators have become extremely adept at conducting these ‘public consultation’ and interested Departments could learn from them - and probably will.

    First, you announce what you intend to do - having already squared all the key interested parties who could cut up rough if you weren’t proposing things that were to their liking - and invite submissions from ‘interested parties’ and from the public.

    Then, after a pre-announced lapse of time, you publish your final decisions, the submissions you received and some sort of response to these submissions. Focus on the submissions that are broadly supportive of what you have decided. You should have a fair few of these from the interested parties that you squared already. You will probably have to deal with a number of submissions that are critical of your decision. Some of these will be relatively easy to dismiss. Some critiques, however, may be more soundly based. You have to be very careful here. The first thing is to search for any error in a factual statement. It doesn’t matter how small or irrelevant it might be in the context of the critique advanced. Just seize on it and you can use it to demolish the entire argument. If the submitter is aware of this trick and manages to avoid falling foul of it, select a piece of the argumentation out of context and subject it to ridicule. If all this fails, simply select parts of the argumentation out of context and declare an inability to understand the point the submitter is making.

    This is a pretty standard approach. The more experienced economic regulators have developed even more sophisticated techniques to ignore or dismiss critiques of their proposed decisions or actions, but the end result is the same. Once you’ve gone through this process you do can more or less as you like. It’s actually amazing that the various Departments haven’t cottoned on to this - and they could have avoided the passing embarrassment of these UNECE Cttee findings and recommendations.

    The only time this exercise comes to grief is when you upset one of the bigger interested parties which has a serious economic or commercial interest - and which has the interest and resources to mount a legal action.

    At the end of the day final consumers and ordinary citizens will end up paying for the impact of the decisions you make - and they have absolutely no means of advocating or representing their interests collectively. So once you go through this process -and don’t upset any of the bigger interested parties - you’re in the clear.

    Simples.

  3. Ossian Smyth Says:

    This is a non-binding recommendation from a UN committee that European consultations on renewable energy plans should be more extensive. The EU will issue guidelines to members states on how to conduct their NREAP consultations in future. Hold the front page…

    @Paul
    Consultations are not generally held to decide policy. Even so they have some use as they allow third parties to point out oversights in the details of proposals.

    btw: Binding renewables targets are measured in GFEC rather than TPES (output targets rather than input targets)

  4. The Dork of Cork Says:

    @Ossian
    Fair point but the input TPES is registered by the Gas plants used to cover the mythical output capacity of the Wind anyway.
    I think we have the highest gas base load in Europe if I am not mistaken.

    Only Cyprus and its all in Oil generation thingy is somehow even worse then our predicament..

    Lets face facts here - The huge opportunity costs of wind is a farcical & unscientific situation.
    PS I don’t think we will be developing Nuclear any time soon given the almost full scale collapse of Industrial European civilisation even in the core.
    We will have to go back to 19th century technology I am afraid and spend what money we have on the Victorian & Edwardian rail lines and hope the core exports some NG to us if they somehow manage to split more atoms in the future.

  5. Robert Browne Says:

    “He complained about the government’s renewable energy policy to every authority in Ireland and was either ignored or told to go away. So he complained to every European authority with the same result.”

    At least he did not get the Bertie response, such is democracy in the EU at present.

  6. The Dork of Cork Says:

    He claims that the future projected cost of renewables are in the region of 30 Billion ~ or 7000 -8000 euros per person !!!

    What time period does this cover ?
    What is the present sunk capital costs of wind + the interconnector ?

    Even if we do spend such money will our electricity generation profile look something like this ?
    http://www.iea.org/stats/pdf_graphs/DKELEC.pdf

    As opposed to this
    http://www.iea.org/stats/pdf_graphs/FRELEC.pdf

    30 billion would buy more reactors then we need so I guess we would really need the interconnector in such a unlikely logical circumstance.

  7. Ossian Smyth Says:

    Wind supplied one sixth of Irish electricity consumption from January to April of this year.

    Supplying this electricity with gas generation would have required an additional quarter billion cubic metres of gas imports.

    This recent IMF working paper uses geological and technological views of oil to predict a doubling in price over the coming decade. There’s not much the EU or the UN can do about that.

  8. The Dork of Cork Says:

    @Ossian
    Forgive me but thats a very simple analysis , have you heard about the concept of opportunity cost ?
    Oil is a even bigger problem then NG from a Irish Euro balance of trade perspective.

    Although transport has been very inelastic thingy (at least until the euro collapse of wealth) when compared to power plants which are a concentrated development and a very low hanging fruit , even so me thinks this wind stuff is better spent on rail don’t you think ?

    I have read some of Pats efforts and I think for the most part he is right - he is attacking a religion of sorts.
    The religion of we must do something rather then the most logical solution.

    From my own (albeit limited) understanding of rail I was shocked reading the AECOM / Goodbody report and its dismissal of the Youghal line.
    In my opinion they used very flawed metrics - i.e the population along the line rather then the pop. near the station nodal points & the fact it was a branch line - Midleton is a branch line and is a great Success !!

    Completely illogical arguments in my view just thrown out there and accepted as fact in this still very Catholic in outlook nation.

    If this is what passes for typical Irish Analysis of projects then it explains a hell of a lot as Paul Hunt keeps banging on about.
    The wine is turned into blood and all that.
    However If we could turn Richards Water into wine we might be slightly better off…. then again maybe not.

  9. Ossian Smyth Says:

    Pat Swords had originally sought cost benefit justifications from the Irish government for its renewable energy policies which seems like a very reasonable request. We would all like the state apparatus to be more open and more evidence-based in its decision making. The UN-ECE Compliance Committee recommendations did not endorse this request.

    @DoC
    You are asserting that money spent on wind power in Ireland would be better directed elsewhere. You may be right but can you make any rough estimates to back this up? Remember that this UN complaint began with a lack of support for assertions about power generation.

    for example:
    * Are you limiting this proposition to state money?
    * Or are you suggesting that private investors who own most of the wind farms should invest elsewhere?
    * Can you make a quick assessment of the costs of state wind policy (to the citizen and to the exchequer) eg PSO, interconnectors, grid strengthening, capital allowances…?
    * Can you adjust these costs with the benefits derived such as increased wholesale supply, reduced exposure to fluctuating market gas prices and reduction in air pollution
    * When you consider the foregone opportunity of not facilitating wind power will you consider the financial cost of infringing binding EU targets?
    * Once you have calculated the cash saved - if any - by not pursuing wind power in Ireland, how would you invest this money alternatively for a better return?

  10. The Dork of Cork Says:

    @Ossian
    You have got me there - I can”t calculate such a complex set of parameters.
    Indeed I think it is impossible.
    For example I don’t know how much diesel will be saved by Youghal commuters and holiday types if they invest 85ish million in what can only be in my opinion fiscal rather then private money investment.

    I can only cite the experience of the UK when it changed the ratio of its monetary base…. there was a surge in rail passengers when the flow was released at least partially.

    To argue that economics is a exact science is incorrect in my view given the fluid nature of the envoirment , people and the monetary system when the stock and flow is released from its now artificial leveraged euro prison.
    This changes the dynamics in profound ways.
    I would argue that the UK is too conservative with its fiscal production but others would argue when you do what the UK has done with its monetary system these past few years you must be tight fiscally.

    To finish I would declare people don’t know what the rational rate of return truely is given the dominance of credit over money withen our system.

    You can’t analyze this system using your invented rational position as we are now operating withen a extremely defective monetary ecosystem.
    Its a bit like naturalists studying polar bears in a jungle - its a almost completly absurd situation.
    There are no seals climbing up & down trees , just sloths relieving themselves once a week.
    Jaguars are therefore far more effective predators , polar bears are very non optimal designs in such a system.
    http://www.youtube.com/watch?v=jHsC5NB6tWg

  11. fergaloh Says:

    In other related news the Club of Rome has published it’s forecast for the next 40 years and it’s not very positive at all…

    http://www.clubofrome.org/

  12. Paul Hunt Says:

    @The Dork of Cork,

    “If this is what passes for typical Irish Analysis of projects then it explains a hell of a lot as Paul Hunt keeps banging on about.”

    Hurrah! The penny has finally dropped. This is indeed what passes for “typical Irish Analysis” - and it is pervasive and endemic in the entire public policy and regulatory sphere.

    Intellectual rigour goes out the window when influential sectional economic interests have to be looked after. And god help anyone of any ‘public standing’ who might have the nerve to stick an oar in. Which explains the silence - if not the ‘trahison des clercs’.

    @Ossian Smyth,

    I agree that public consultations are not generally held to decide policy; and that regulatory ‘public consutations’, in contrast, are advanced as part of the process in arriving at a regulatory determination. But there is an obligation on politicians, policy-makers and regulators to take the submissions made as part of these processes, somehow, “in to account”.

    This, for me, in the context of the NREAPs - and other national policies mandated by agreed EU-wide policies - is the gist of the findings and recommendations of the UNECE’s Aarhus Compliance Cttee.

    We all know that politicians, policy-makers and regulators will carry on thier merry way regardless of the submissions made, but they should, at least, be compelled ‘to go through the motions’.

    The point I was making is that Irish economic regulators have proved adept at this; Government Departments need to wise-up fast - and they could learn a lot from the economic regulators.

    For example, wrt to the recent public consultation on Irish Water performed by the DECLG - and which closed for submissions on 24th Feb last - we haven’t heard a word. So far as I know the submissions have not been published, there has been no response by the Government to these submissions and the Government has given no public indication of the next steps on foot of its consultation document and the submissions received. Although this may not come formally within the remit of the UNECE’s Aarhus Compliance Cttee’s findings and recommendations - though the Water Framework Directive might provide the necessary link, this failure is precisely the problem that motivated Pat Swords’s complaint.

    We all know that it’s a waste of time making submissions in these public consultations - particularly if they are critical of the approach the Government is resolved to pursue, but if due process is followed and they are published they provide a basis for further engagement with politicians and policy-makers. At least something is on the public record.

    It isn’t much, but at the moment we’re being deprived of the very little to which we should be entitled.

  13. Richard Tol Says:

    @Paul
    Irish water policy is driven by a range of EU directives and thus subject to Aarhus.

    With the ruling in Pat’s case, it would be more difficult for the Irish gov’t to dismiss procedural concerns.

    Of course, correct procedures cannot guarantee correct decisions.

  14. fergaloh Says:

    UNEP has a green economy report too - haven’t seen a mention in the mainstream (quelle surprise)

    http://www.unep.org/greeneconomy/greeneconomyreport/tabid/29846/default.aspx

  15. Paul Hunt Says:

    @Richard,

    Many thanks for clarifying the situation re EU Directives and water sector policy in Ireland. I thought as much, but didn’t have the evidence to make a definitive assertion.

    I agree that correct procedures cannot guarantee correct decisions, but the former do, at least, restrict government’s instinctive and reflexive desire to suppress, smother and conceal what would be uncomfortable for it to reveal.

    I believe there should be an obligation on the media to report and comment on the announcement of all public consultations by Government Departments and state egencies for public information purposes. This should be a regular and continuing feature and it should provide an outline of the issues being consulted on and some background information for the public. They should be required to monitor the progress of these consultation, the nature of the submissions made, the response of the Government or the statutory agencies initiating these consultations and the next steps these bodies intended to take.

    I also thought - yes, I know, I am a dreamer - that this blog might have provided a locus for crowd-sourcing subsmissions - or a number of submissions - to, at least, some public consultations in which there should be public interest and which raised interesting economic policy issues. There is nothing that would have annoyed Government Departments or state agencies more. They have become adept at using these under-reported public consultations to hide these self-serving, special-pleading, woolly-thinking, special interest-pandering documents in broad daylight. Having people observe and comment on these ugly confections would really made them cringe.

    One never knows, but either of these - public reporting of consultations in real time or blog crowd-sourcing of submissions - might have forced a retreat from some egregious policy or regulatory stupidity and encouraged marginally improved public policy formulation and implementation.

    But all we’ve ever had was the magnificent charge of the light brigade of the ‘46′ on NAMA. Maybe this has encouraged so many to keep their heads well under the parapet ever since.

    What a shame and what a waste.

  16. Pat Swords Says:

    @Richard

    Thanks for the post.

    It might for people to have a quick look at the ruling itself (link in Intro to post above, ruling at bottom of UNECE webpage).

    The ruling applies to all 27 Member States and requires the EU to make the necessary legislative changes to ensure the National Renewable Energy Plans are implemented in accordance with the Convention.

    There is an excellent “Aarhus Convention: An Implementation Guide”:
    http://www.unece.org/fileadmin/DAM/env/pp/acig.pdf

    Note in particular the details on page 109.

    Note also that under Article 7, for which the EU and Ireland failed to comply with, the public has to be provided with the necessary information.
    EU legislation in this regard is more prescriptive in that a Strategic Environmental Assessment has to be provided under Directive 2001/42/EC; http://ec.europa.eu/environment/eia/sea-legalcontext.htm

    These were also by-passed in the rush to implement the 20% renewable energy target. However, to do them properly we need to know what the environmental objectives are (tonnes of greenhouse gas savings), the alternatives to reach those objectives and what the likely impacts on the environment are if we do not implement the programme.

    At the moment nobody has a clue what the tonnes of greenhouse gas savings are, what the costs will be and what the impacts on the environment will be.

  17. The Dork of Cork Says:

    Is Denmark changing its capital subsidies course ?
    Railway Gazette
    “DENMARK: Legal powers enabling the construction of Denmark’s first modern light rail line in Aarhus were approved by parliament on May 8.

    The Aarhus Letbane joint venture of the municipality, Ministry of Transport and Midtjylland region can now be formally established as project promoter, and the tendering process launched.
    Transport authority Midttrafik says the project to introduce tram-train services on two regional railways linked by a city-centre tramway is heavily inspired by Kassel in Germany.

    Phase 1 includes the construction of a 12 km double-track tramway running from Aarhus H station, along Randersvej via the University Hospital in Skejby and the Lisbjerg development area to Lystrup. This will link the existing regional railways running 26·5 km to Odder in the south and 69 km northeast to Grenaa, which are to be modified to accommodate tram-train services. Future plans include a branch to Lisbjerg West

    Contracts are to be awarded in three packages. Civil works will be tendered as two framework contracts expected to be worth a total of €60m to €100m. A negotiated design and build contract covering railway systems and rolling stock is valued at €150m to €180m. A final package will cover operations.
    Two types of rolling stock will be required, with 70 km/h trams for the city section and 100 km/h tram-trains for the longer distance routes. Options being considered include full electrification, or the procurement of a mix of 750 V DC trams and electro-diesel tram-trains. If full electrification is adopted, a catenary-free system may be chosen for the harbour-side section.
    Construction is scheduled to begin in June 2013, with opening planned for August 2016.
    Studies for the project have been undertaken by COWI and Systra. German BOStrab light rail regulations will be adopted, and Lloyd’s Register EMEA has been appointed independent safety assessor.

  18. Christian Says:

    @fergaloh:

    And the Club of Rome’s past predictions have been a resounding success?

  19. Paul Hunt Says:

    @Pat Swords,

    Well done, that man! You’ve given parts of the Government - and the Government-machine - as well as selected Eurocrats a fair bit of headache. As I indicated earlier, it probably won’t have much of an impact on policy-formulation, enactment and implementation; they’ll just have to be more cunning and careful. And they’ll have to put a lot more effort in to the weasel-wording, the dissimulation and the concealment of what they’re actually up to. Plus it’ll slow things up for them as they’ll actually have ‘to go through the motions’. But, all in all, it’ll still be ‘business as usual’.

    The lazy media types and our irrelevant TDs won’t even notice what’s going on. But it appears you have opened up a channel to allow a few more of us to make nuisances of ourselves.

    Are your lines of communication still open to the UNECE’s Aarhus Compliance Cttee? Are there opportunities to report back to them on the actual compliance of the Government-machine here with their recommendations? Richard has indicated that all policy areas where actions are driven by EU Directives might be covered by these recommendations. Would it be possible to report back on compliance outside of the fairly narrow policy area that was the focus of your complaint?

  20. Ossian Smyth Says:

    Impacts of the renewables directive were modeled here:
    http://ec.europa.eu/clima/policies/package/docs/analysis_en.pdf

    Annual reductions of about 1 Gt of CO2-equiv by 2020.

    Cost between 0.45% and 0.71% EUGDP for various chosen scenarios.

  21. Richard Tol Says:

    @Paul
    The current ruling applies to the current case, and to the current case only. It sets a precedent for similar cases. The Irish gov’t can no longer claim that is not subject to Aarhus (it is under particular circumstances that happen to cover a lot of policy), and it can no longer pretend that consultation a la NREAP is okay.

    I overlooked one thing. Aarhus also stipulates access to information, not just information held by the official bodies, but also information held by their advisers.

  22. Paul Hunt Says:

    Thanks, Richard. I do feel genuinely sorry for the civil servants who’ll have to put all this extra effort into the weasel-wording, dissimulation and concealment. It would require only a tiny fraction of this effort if the Goverment Departments and state agencies were prepared to come clean. Public policy would be formulated, enacted and implemented in a more open and transparent manner - and be the better as a result - and the civil service resources would be employed far more productively.

    At first sight this access to information held by advisers to the official bodies doesn’t seem to add much. So far as I’m aware, data and information held by, say, consulting firms to produce reports for official bodies is actually ‘owned’ by these bodies and under their control. They can still play ’silly buggers’ to avoid releasing any of this - or to ‘redact’ any amount of it they wish.

    PwC’s report on Irish Water is a perfect example.

  23. Ryano Says:

    A very interesting ruling, in particular as it sets out what the Compliance Committee consider to be adequate in terms of implementing Article 7 of the Convention when adopting national policies. The EU, and by extension its member states including Ireland, will have to up their games when it comes to transparency in policy-making and access to information.

    Now that the Compliance Committee has made a ruling that affects Ireland, I would like to think that the Attorney General’s office will stop putting up impossible legal barriers to Ireland’s ratification of Aarhus. Their view was always that we couldn’t contemplate making ourselves subject to the Compliance Committee prior to having amended any piece of legislation that might conceivably be subject to a complaint.

    Pat is to be congratulated for pursuing this issue, even if the NREAP isn’t the first policy I would choose to be subject to such a challenge. Successive National Development Plans, comprising billions of euros of spending and fundamentally influencing energy, land use and emissions for generations, have been adopted without any strategic environmental assessment. The European Commission is in correspondence with Ireland on this case but it would be interesting to see what view the Compliance Committee would take on it.

  24. Ryano Says:

    Actually it appears the AGO has now finally agreed the Convention can be ratified:

    http://www.kildarestreet.com/wrans/?id=2012-05-09.994.0&s=aarhus#g996.0.r

  25. Paul Hunt Says:

    @Ryano,

    Many thanks for the update.

    Minister Hogan: “Ratification of the Aarhus Convention is a high priority ..” (I have a picture in my mind’s eye of this being asserted through gritted teeth) “..and my Department is working closely with the Department of Foreign Affairs and Trade with a view to finalising this process as soon as possible” - (in other words there is no reason why we shouldn’t finalise this rapidly, but we’ll delay it for as long as we possibly can since there are inter-departmental issues to resolve; we’ll also phase the administrative roll-out so that the areas that they are likely to be the most contentious will be the last to be subject to Aarhus).

    It’s very possible that, as a result of the case Pat Swords brought, the Eurocrats told the Government to get the finger out since they were damned if they were going to be held accountable to the Aarhus Compliance Cttee for things over which they had no direct control.

    It does, however, raise an interesting question. Pat’s case cited the European Commission, since Ireland could not be put in dock directly as it had not ratified Aarhus. Now that Ireland appears to be on the point of ratification, does it diminish or squash the precedent Pat’s case has established? In other words, would anyone wishing to bring a case similar to Pat’s, but citing Ireland directly, have to start from scratch since the precedent was established with the Commission in the firing line rather than Ireland?

  26. Ryano Says:

    As far as I’m aware all that’s required now to “finalise the process” is for DFA to complete the diplomatic niceties such as lodging the instrument of ratification or whatever. I can’t say I know much about how this works, but I can’t imagine there is much work involved, certainly when set against the legislative review and subsequent amendment of legislation that was required to satisfy the Attorney General that we are in a position to ratify.

    The most recent piece of legislation to address an Aarhus issue, as far as I’m aware, was the Environment (Miscellaneous Provisions) Act 2011, enacted last August: http://www.irishstatutebook.ie/2011/en/act/pub/0020/sec0008.html#sec8

    What has been happening since then I don’t know.

    There’s no question of a phased roll-out: once the Convention is ratified we become subject to the Compliance Committee, following a grace period of a year.

  27. Paul Hunt Says:

    @Ryano,

    Thank you. I agree about no ‘formal’ phased roll-out, but you could get the “due to the recruitment embargo, heavy work-load, etc, etc some delay, blah blah, in establishing administrative procedures to ensure full compliance..”.

    And, of course, they have this grace year - which could become 18 months.

    The Government never wanted to ratify this - you don’t want ordinary people knowing what the government is planning to do to them, so one should anticipate foot-dragging, obfuscation and delay.

  28. Pat Swords Says:

    Note the Compliance Committee ruling also found that the EU did not have the necessary legislative, regulatory, and other measures, including proper enforcement, to establish and maintain a clear, transparent and consistent framework to implement the provisions of the Convention.

    As Richard pointed out the range of ‘public authorities’ to which the Convention applies is extremely broad, as is the scope of environmental information. Furthermore, the first pillar on Access to Information also requires that public authorities possess and update environmental information, which is relevant to their function and that environmental information is transparent and relatively accessible. Under EU legislation, transparent is defined as up to date, accurate and comparable.

    @Ossian
    There has been no effort to obtain validated emission and greenhouse gas savings data for the amount of wind energy installed to date anywhere in the EU. Furthermore, there is an awful lot of controversy over the PRIMES model you linked to, which is not accessible to others as it remains the property of the Technical University of Athens. In addition, the PRIMES model does not seem to take any account of the fact that as more intermittend generation goes on the grid, so too will the inefficiencies on the existing plants there rise rapidly. As a result the net greenhouse gas savings are nowhere near what is claimed. Finally the modelled emissions scenarios are not linked to what the Member States came up to in their own National Renewable Energy Action Plans (NREAPs).

    The second pillar relates to Public Participation in Decision-Making, for which the EU was found at fault in relation to the implementation of the NREAPs, while the third pillar relates to Access to Justice, which has to be fair, equitable, timely and not prohibitively expensive. As the European Environmental Bureau points out, in mainland Europe legal challenges to planning and permitting decisions can be taken for about €5,000, while the UK is now undergoing legal reform to bring down the cost of Judicial Reviews following a ruling of the Compliance Committee at the end of 2010.

    In Ireland we have a legal system like a Ferrari, which nobody can access unless you have loads of money. Volkmar Klohn, a farmer in Sligo ended up with an €86,000 bill from An Bord Pleanala when he challenged them in 2006. The EU has taken Ireland into the European Court over this issue, but have dropped it when Ireland put in a legislative clause recently that each side should carry their own costs, but this doesn’t provide us with a system which is ‘prohibitively expensive’. Note: The Klohn case was raised during the Compliance Committee meeting but not ruled on.

    UNECE had been contacted previously about the situation in Ireland, but they could not accept a Communication as Ireland won’t ratify. That is why my case was somewhat unique as I had to build it against the EU. The Compliance Committee did indicate that they would provide some guidance on their position vis a vis Communications in relation to matters in Ireland given that the Convention is part of Community Legal Order here, but nothing has come out on this issue yet. Note: The compliance Committee meet four times per year in Geneva and they provide their service Pro Bono (free).

  29. EWI Says:

    @ Pat Swords

    and what the impacts on the environment will be.

    But we do have an ‘informed best guess’, in the guise of the IPCC.

    (Yes, yes, I know. Climategate, nefarious scientists, the Illuminati etc.)

  30. Pat Swords Says:

    @EWI

    Many would question the word ‘informed’. What is clear in that what is proposed by the EU (85 to 95% reduction in carbon by 2050) is an enormous amount of money and a massive intrusion in people’s way of life, particularly in relation to the quality of life which would be available to those not so well off.

    The EU Commission was required under Article 8 of the first Directive on Renewable Electricity (2001/77/EC) to prepare a report on:

    “Consider the progress made in reflecting the external costs of electricity produced from non-renewable energy sources and the impact of public support granted to electricity production”.

    They failed to do so, when questioned as to why so, the Energy Commissioner’s response to Struan Stevenson MEP was because Member States did not provide information on the externalities related to the generation of non-renewable energy. However, it was the duty of the Commission to prepare this report.

    A key legally binding principle of environmental protection is the analysis of cost, benefits and consideration of alternatives. As a result we know the impacts of pollutants, such as that of fine airborne particulates on human health, as the EU and some national governments have assessed both the cost of those impacts and the costs of reducing the concentrations of those pollutants, such as by tighter emissions standards for power plants and new vehicles.

    Yet when it comes to carbon dioxide there has been essentially a complete failure to properly fund and execute these vitally necessary, albeit complex, studies. We are in the dark about the external cost of carbon dioxide. To explain, the internal cost is what we pay directly, such as on our electricity bill, while the external costs does not appear as a direct charge to the consumer, but which has a cost to society as a whole, such as through environmental degradation. Obviously external costs are an absolutely key element of cost, benefit analysis and the resulting decision making.

    To quote Richard Toll on his 2009 publication on the ‘economic effects of climate change’:

    “Projections of future emissions and future climate change have become less severe over time—even though the public discourse has become shriller”.

    “The quantity and intensity of the research effort on the economic effects of climate change seems incommensurate with the perceived size of the climate problem, the expected costs of the solution, and the size of the existing research gaps. Politicians are proposing to spend hundreds of billions of dollars on greenhouse gas emission reduction, and at present, economists cannot say with confidence whether this investment is too much or too little”.

    We cannot as a society make proper decisions in the absence facts and figures. Neither can we hand out contracts to support 4,000 MW of additional renewable energy on essentially a ‘one pager’ justification, which does not provide a single figure as to what the greenhouse gas and fossil fuel savings will be. In particular when the existsing grid functions perfectly without any of this considerable investment.

  31. Paul Hunt Says:

    @Pat,

    The problem you have identified in your last paragraph is fundamental. Millions of citizens and consumers will be forced to pay for whatever politcians, policy-makers, regulators and energy market participants decide without having any effective impact on these decisions.

    Adam Smith observed this problem; the US institutional economist, JR Commons, sought to address it in the early years of the last century, but it remained effectively unaddressed for more than three decades. I’ll let my good friend, Jeff Makholm, in his recent book:
    http://press.uchicago.edu/ucp/books/book/chicago/P/bo12778563.html
    take up the story.
    “[Mancur] Olson published an influential book in 1965 - a vertitable economic best-seller - entitled ‘The Logic of Collective Action: Public Goods and Theory of Groups”. He overturned what had been accepted economic wisdom about how groups behave in the economy. Economists and politcial scientists had held that if everyone in a group (of individuals or firms) had some common interest, then the group members would tend to seek to further that interest. Simple enough, but fundamentally wrong, as Olson showed. Using game theory and some simple welfare-maximizing economics, he demonstrated that the larger a group becomes, the less incentive any individual member has to spend any time or money pursuing common objectives.” (p13)

    In the case you are pursuing this mean that small groups (energy suppliers and other energy market participants) can be effective in pressing thier interests with politicians, policy-makers and regulators, but large groups (millions of energy consumers) will not. It is a simple and prfound insight that is well understood by the vast majority of ordinary citizens, but it is very convenient for those seeking to acquire and exercise political or economic power to suppress its implications. And in this they have been aided and abetted by economists with their narrow neoclassical microeconmic mindset and their belief in competitive markets.

    The only solution is the establishment of effective advocacy and representation of the collective interests of these millions of consumers. But this is the last thing the small groups exercising political or economic power want. Until this fundamental problem is recognised and addressed there will be no progress - and, in this case, million of energy consumers will continue to be hosed.

  32. David Holland Says:

    Richard is right to say Ireland has not ratified Aarhus but it is still subject to Directive 2003/4/EC, which in its fifth preambular clause states:

    On 25 June 1998 the European Community signed the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’). Provisions of Community law must be consistent with that Convention with a view to its conclusion by the European Community.

    Does this not mean that Aarhus has ‘direct effect’ in Ireland?

  33. Richard Tol Says:

    @David
    I’m no lawyer. The Irish authorities have always maintained that Aarhus does not apply. The Compliance Committee obviously disagrees.

    Constitutionally, something is not quite right. How can the EU ratify a treaty that is not ratified by all of its Member States? How can an international treaty that was not ratified, be enforced nonetheless?

  34. David Holland Says:

    Richard,

    I am no lawyer either but my understanding is that when the UK joined the European Community we signed up to incorporate Directives into UK Law. I assume Ireland must have made a similar undertaking.
    See here:http://www.leeds.ac.uk/law/hamlyn/european.htm

    Article 10 of Directive 2003/4/EC states unambiguously:

    Implementation

    Member States shall bring into force the laws, regulations and
    administrative provisions necessary to comply with this Directive
    by 14 February 2005. They shall forthwith inform the
    Commission thereof.

    When Member States adopt these measures, they shall contain
    a reference to this Directive or shall be accompanied by such
    reference on the occasion of their official publication. The
    methods of making such reference shall be laid down by
    Member States.

  35. Richard Tol Says:

    @David
    In theory, yes.

    In practice, there is a difference between Aarhus and the EU directive on access to environmental information; and there is a difference between the EU directive and the Irish regulations on environmental information.

    Swords’ case neatly illustrates this. He needed to appeal to the UN to remind the authorities about the law.

  36. Pat Swords Says:

    @ David and Richard

    The Convention is legally binding on both Member States and Institutions / Bodies of the EU, including the European Investment Bank.

    With regard to Ireland Section 3 of the below explains it:

    http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2010-54/Correspondence%20with%20communicant/Response%2021.06.11/frCommun21.06.11.pdf

    Although the question presented by the Compliance Committee to the EU after the meeting in Geneva in September is somewhat more direct and clearer:

    http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2010-54/Correspondence%20with%20Party%20concerned/topartiesC54EU_afterDiscussion.pdf

    As regards Community law, the Convention is not just implemented by Directive 2003/4/EC on access to environmental information, but also by Directive 2003/35/EC on public participation, which requires access to justice, which is fair equitable, timely and not prohibitively expensive. In addition in relation to plans and programmes there is a definite overlap with the Directive on Strategic Environmental Assessment 2001/42/EC.

    For EU Institutions Regulation 1367/2006 applies.

Leave a Reply