Edwin Poots had legal duty to refer gas cavern development to Executive, court rules

A former Stormont Minister acted irrationally in approving a major gas storage development off the Co Antrim coast without referring the project to the Executive Committee, the Court of Appeal ruled today. Senior judges held that plans to construct caverns under Larne Lough were so significant and controversial that Edwin Poots was under a legal duty to bring the issue to the attention of the power-sharing administration. In a victory for environmental campaigners opposed to the project, Lady Chief Justice Dame Siobhan Keegan highlighted the scheme's potential impact of locking Northern Ireland into fossil fuel dependency for the next 40 years. She said: “The ministerial decision as it stands, effectively means that this gas storage proposal is not deemed a significant and controversial project. “This is a decision which we find to be irrational for reasons… including the interface with climate commitments in Northern Ireland.” A further hearing will determine what happens next for the proposed development in light of the identified breach of the Ministerial Code. In 2021 Mr Poots gave consent for the scheme by Islandmagee Energy Ltd. It involves carving seven large underground caverns at a depth 1,350m below sea level by a process known as solution mining. Located within special protection and conservation areas, the project is expected to last for 40 years. The units would then be decommissioned at the end of their lifespan. Local campaign group No Gas Caverns and Friends of the Earth Northern Ireland mounted legal action in a bid to have the marine licence permit quashed. They claim it will keep Northern Ireland tied to fossil fuel dependency for decades beyond a target set to achieve net-zero emissions by 2050. The excavation process would also allegedly lead to hypersaline salt and chemical solution being discharged into the sea near Islandmagee, creating a “dead zone” threat to marine life. Campaigners contended that Mr Poots failed to properly consider the environmental implications of a development proposal so significant, strategic, cross-cutting and controversial that he was legally required under the Ministerial Code to refer it to the Executive Committee before granting permission. In August last year their initial application for a judicial review was dismissed at the High Court. A judge backed the Department’s case that amendments in the Executive Committee (Functions) Act (Northern Ireland) 2020 provided more scope for Mr Poots to give the go-ahead without seeking consent from the wider power-sharing cabinet. Appealing that determination, the campaigners argued there was a statutory requirement to comply with the Ministerial Code and refer such a contentious planning decision to the Executive. Dame Siobhan said approving the scheme had obvious implications for the net-zero climate policy. “The decision not to classify this project as significant crosses the threshold of irrationality where it simply does not add up,” she held. According to the Lady Chief Justice, it was also irrational to consider that the development was not significantly controversial or cross-cutting to trigger the requirement for Executive referral. Stressing that the court was only dealing with the legality of the decision-making process, Dame Siobhan acknowledged competing interests between the project providing economic benefits and those opposed to fossil fuels. “An obvious tension arises. In addition, a highly important issue of energy security requires decisions to be made,” she said. But the judge concluded: “Given the trajectory of decision making we do not consider that what we are dealing with is an inadvertent breach of the Ministerial Code.” Outside court James Orr, director of Friends of the Earth Northern Ireland, declared the ruling a positive day for the environment. He said: “It represents a landmark recognition of environmental protections and the moral and legal obligation to cut our emissions. “It will have implications for decisions in Northern Ireland for years to come.” Lisa Dobbie of No Gas Caverns added: “We are ecstatic that the court has ruled in our favour. “This judgment reflects years and years of dedicated campaigning, and a group of people forced to take extraordinary action against a government department and former Minister who approved this fossil fuel infrastructure.”

The Department for Agricultural and Rural Affairs has been approached for comment.

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