Court upholds Secretary of State’s decision to not carry out a trans-boundary consultation


Re: An Taisce (The National Trust for Ireland), R (on the Application of) v The Secretary of State for Energy and Climate Change & Anor [2014] EWCA Civ 1111

The claimant sought a judicial review of the defendant’s decision to build a nuclear power plant at Hinkley Point in Somerset.

Article 7 of Directive 2011/92/EU (the EIA Directive) notes that if a Member State is aware that a project is likely to have significant effects on the environment in another Member State then that Member State is required to carry out a trans-boundary consultation. The Secretary of State did not carry out such a consultation as he did not consider it likely that the power plant would have a significant effect on Ireland’s environment.

The claimant’s case was that the Secretary of State misdirected himself as the meaning of ‘likely’ within Article 7. The claimant asserted that a project is likely to have significant effects on the environment if such effects cannot be excluded on the basis of objective evidence and relied on the decision in Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (“Waddenzee”) (C-127/02) on the Espoo Convention and on the Vienna Convention on the Law of Treaties.

Refusing the appeal and upholding the decision of the Secretary of State, the Court noted that the ratio of Waddenzee was limited to the interpretation of Article 6(3) of the Habitats Directive and not applicable to the EIA Directive. The Court accepted that the texts of the two Directives were ‘essentially similar’ but noted that there were differences in the scope, purpose and text of the Directives which meant it was not possible to carry over the meaning from the Habitats Directive to the EIA Directive.

Although the court could not be convinced that the current English Law approach to EIA screening (the “real possibility” test) was correct, a reference to the CJEU was not needed because there was no real prospect of the CJEU agreeing with the Claimant’s “zero risk” approach.

David Wolfe QC and Blinne Ni Ghralaigh were involved in this case.