An Taisce v. Irish Planning Board

An Taisce and Friends of the Irish Environment, Ltd., challenged An Bord Pleanála’s approval of Edenderry Power Ltd.’s application to extend operation of its peat- and biomass-burning power plant from 2015 to 2023. Bord Na Móna Allen Peat Limited and others engaged in peat extraction and transport were also parties to the case. At issue was whether the approval granted to Edenderry had complied with the EU’s Environmental Impact Assessment Directive, which was incorporated into Irish law in 2010. An Taisce argued that the approval had not because it had considered only the impacts of the plant’s operations but not those resulting from the peat extraction and transport involved in supplying the bulk of the plant’s feedstock. Edenderry and the other respondents countered that because neither the peat nor plant operations were contingent upon one another they were unrelated for the purposes of environmental review. The High Court, noting that it was required to base its decision on the “actual reality of the project” at issue, rejected Edenderry’s arguments as theoretical—the permit application, after all, contemplated sourcing from these particular bogs, such that any other approach would constitute a material change to the application. Thus, “[t]here is functional interdependence as the power plant relies for the vast majority of its raw material on the designated bogs.” The court also noted that it made no difference that the bogs were independently subject to an air pollution licensing regime. The planning authority, it explained, “is entitled to take the licenses into account” when assessing the impacts of the peat extraction operations.