Gas caverns: N Ireland campaigners win Larne Lough legal challenge

*** Issued on behalf of No Gas Caverns and Friends of the Earth Northern Ireland

We won! The Court of Appeal in Belfast handed down Judgment today (Monday 17 June 2024) in respect of a legal challenge by Friends of the Earth Northern Ireland and No Gas Caverns over plans to construct seven massive, environmentally damaging gas storage caverns underneath Larne Lough.

Friends of the Earth NI and No Gas Caverns won on both grounds of appeal:

• The failure to refer the applications to the Executive Committee [1].
• The taking into account of an irrelevant consideration, namely the community fund [2] to mitigate the impacts of the development.

This Judgment confirmed the previous Environment Minister acted irrationally when he made the decision to approve the Marine License. The current Minister now has clear guidelines when taking important environmental decisions as this will now set a precedent for how such decisions are made in the future.

The judgment was very clear that DAERA [Department of Agriculture, Environment and Rural Affairs] made an irrational decision.

No Gas Caverns, Lisa Dobbie said: “It’s not every Monday that you change the way environmental decision-making works in Northern Ireland! Challenging this nature-wrecking project took over our lives for the past five years. It’s been so all-consuming; I almost don’t know what to do tomorrow now!”

Friends of the Earth NI Director, James Orr, said: “This is a great day for local communities, our coastline and our climate. But, without a fully resourced independent Environmental Protection Agency, we must remain on high alert because this case demonstrates how government can break the law.”

ENDS

Notes

1. The case was heard over two days in February this year and follows a High Court ruling in August last year that the project was lawful.
2. Ground 1 of appeal: The Ministerial Code requires that matters that are ‘cross-cutting’, ‘significant’ or ‘controversial’ must be referred to the Executive Committee. Additionally, the Northern Ireland Act requires ministers to act in accordance with the Ministerial Code. We argue that this gas caverns project is ‘cross-cutting’, ‘significant’ and ‘controversial’ and therefore was required to be referred to the Executive committee. Consequently, we believe that the failure by the Minister for DAERA to refer this project to the Executive committee and instead approve the project himself was unlawful.
3. Ground 2 of appeal: The provision of a community fund has been referred to as a mitigation measure in the EIA determination under the heading ‘social and economic’, but it is entirely unclear what negative social or economic impact this fund is designed to mitigate. Furthermore, the fund is not secured through a condition and there is no mechanism to require the licensee to set up the fund. As a result, we say that the community fund is an irrelevant consideration which can be given no weight. We argue that it is clear, however, that the Department took the provision of the community fund into account, as it is referenced as a ‘compensatory measure’ in the EIA determination. Thus, we believe that the decision to grant the Licence was therefore based on an irrelevant consideration and unlawful.
4. Under the plans, seven underground caverns, each the size of a skyscraper, would be carved out of salt layers under the lough by a method known as solution mining. The resulting hypersaline salt and chemical solution created by this excavation process would then be discharged into the sea in a protected marine area near Islandmagee creating a “dead zone” where no marine life could survive.
5. Eleven Northern Ireland Priority Species, which are given protection under legislation, are found within 100 meters of the discharge point, including harbour porpoise and skate. The groups warn that the hypersaline nature and chemical composition of this discharge will also extend for several kilometres and will have a significant detrimental effect on the local environment. The area, near Islandmagee, which is designated an Area of Special Scientific Interest, is where key scenes from the Game of Thrones series were filmed.
6. In bringing this legal challenge, the environmental campaigning groups have been proudly supported by RSPB, Ulster Wildlife, Wild Justice, Uplift UK, Law for Change and The PILS project and take this opportunity to thank these organisations for their support to date. Both campaigning groups would like to thank the many members of the general public for their continued support in this legal battle.
7. The Friends of the Earth and No Gas Caverns legal team consists of: Conor Fegan of Francis Taylor Building Chambers, Maria O’Loan of Tughans LLP Solicitors and its own in-house legal specialists.  
8. Read DAERA’s notice of Environmental Consent Decision
9. Visit No Gas Caverns Facebook page
10. Read the press release from Friends of the Earth NI and No Gas Caverns ahead of the High Court of Northern Ireland hearing on 2 May 2023 - which contains details of the case.
11. The Decision of Mr Justice Humphreys sitting in the High Court of Justice in Northern Ireland can be found here
12. Planning permission was granted for the above ground aspects of the project in 2012, with applications for a Marine Construction Licence, Abstraction Licence and Discharge Consent submitted in 2012.  The Marine Construction Licence, Abstraction Licence and Discharge Consent were granted in November 2021 and are the subject of the Judicial Review challenge brought by Friends of the Earth Northern Ireland and No Gas Caverns. Islandmagee Energy Limited, part of the Harland and Wolff Group, are the developers of the proposed project.
13. In March 2024 Islandmagee Energy Limited launched Judicial Review proceedings against the Utility Regulator in respect of a decision that Islandmagee Energy will require a consent to construct the gas storage facility under Article 37 of the Gas (Northern Ireland) Order. That case is due to be heard on 28 June 2024. (see https://aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=402070). The three consents subject to the Court of Appeal challenge are part of a series of consents and pre-conditions which must be met before construction of the gas storage facility can commence