Do solar projects require EIA?

Tuesday, February 11, 2020

The Irish High Court has recently confirmed that solar PV projects are not a project type listed in the EIA Directive – see Sweetman v An Bord Pleanála and Others, judgment delivered by Mr Justice McDonald on 31 January 2020.

It does not necessarily follow from this judgment, however, that that solar projects will never require EIA.

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The Planning Board’s decision to grant permission for a ground-mounted solar photovoltaic (pv) was challenged on a number of grounds, including that the Board had failed to carry out a screening for Environmental Impact Assessment (EIA) in accordance with the EIA Directive 2011/92/EU (which has since been revised by Directive 2014/52/EU).

It was contended that, as large-scale solar PV projects involve the production of electricity, they come within the scope of Class 3(a) of Annex II – industrial installations for the production of electricity, steam and hot water (projects not included in Annex I) – notwithstanding that there is no production of either steam or hot water in the process. The Court was urged to apply a broad purposive meaning to the class of project, in line with EU law, to give effect to the EIA Directive.

It was also contended, in the alternative, that large scale solar PV projects could come within the scope of Class 10(a) of Annex II– Industrial estate development – although this argument was not pursued with any vigour at the hearing.

Ultimately, the Court rejected these arguments. The Court held:

There can be no doubt that the generation of electricity simpliciter does not fall within Class 3(a) unless the relevant project also generates steam and heat.

In so finding, the Court had regard to the following authorities from the Court of Justice of the European Union (CJEU):

• The Court found that it could not place any reliance on either Case C-196/16, Comune di Corridonia or Case C-117/17, Castelbellino, as both these cases involved projects for the production and use of biogas to generate electricity. They did not involve the production of electricity simpliciter.
• The Court preferred to rely on Case C-215/06, Commission v Ireland (Derrybrien Wind Farm). In that case, the CJEU had to consider whether EIA was required for a wind farm at a time when the applicable version of the EIA Directive had not yet been amended to specifically list wind farms as a class of project. Rather than find that the production of electricity from wind turbines came within Class 3(a), the CJEU found that the project came within Annex II by reason of the development of internal access roads, and by reason of the extraction of peat, as ancillary aspects to the overall project.

Mr Justice McDonald held:

It is plain from the approach taken in Commission v Ireland that the generation of electricity through wind energy (which does not involve the generation of heat and steam) was not considered to fall within Class 3(a).

• The Court was also persuaded by the fact that the EIA Directive originally contained a separate class for hydroelectricity production – Class 3(h) – and was amended in 1997 to include a separate class for wind energy production – Class 3(i) – neither of which involve the generation of heat and steam.

Mr Justice McDonald held:

If the generation of electricity (without the concomitant generation of heat and steam) fell within this Class 3(a) it is difficult to understand why the EU legislature would have considered it necessary to include Class 3(h)(i.e. Class 3(j) in the original version). It is equally difficult to understand why, in 1997, the EU legislature would have considered it necessary to include a new class within Annex II to specifically capture wind farm installations. If the generation of electricity was already covered by Class 3(a), there would have been no need to amend the Directive.

The Court held that there was no serious argument that the solar PV project constituted an industrial estate, so this aspect of the challenge also failed.

Implications of Judgment

The judgment was delivered on 31 January 2020 and may yet be the subject of an application for a certificate of leave to appeal. Even if it is not appealed, the implications of the judgment should not be over-stated.

Firstly, a solar PV project may be subject to a requirement for EIA if there is some aspect of the project which potentially comes within the scope of one or more of the classes of project listed in Annex I or Annex II of the Directive. This is what the CJEU held in C-215/06 Commission v Ireland, and other cases.

Secondly, a solar PV project may be subject to a requirement for an extensive planning and environmental assessment akin to an EIA, depending on its scale, characteristics and location.

Thirdly, a solar PV will in almost all cases require screening for appropriate assessment and may require a stage two appropriate assessment in accordance with Article 6(3) of the Habitats Directive, even if it does not require EIA.

Please contact us if you would like any further information on this case or its implications.