Access to Information and the Meaning of Public Authority under the AIE Directive
Executive Summary
In a judgment delivered on 25 January 2021, Raheenleagh Power DAC, which jointly operates a wind farm in Wicklow with the ESB, has been determined by the High Court to be a "public authority" for the purposes of the AIE Directive, and required to disclose requested information in relation to noise monitoring carried out for that wind farm. The decision is under appeal. This is one of an increasing number of High Court challenges being brought against decisions of the Commissioner for Environmental Information (the Commissioner).
Issue
In Right to Know CLG v Commissioner for Environmental Information, the High Court was required to determine whether the Commissioner had erred in law in deciding that Raheenleagh Power DAC (RP) was not a “public authority” as defined in Article 3(1) of the EC (Access to Information on the Environment) Regulations 2007 (the Regulations). The Regulations give effect to Article 2 of Directive 2003/4/EC (the AIE Directive).
Facts
In May 2017, Right to Know CLG (RTK) asked RP for data relating to wind turbine noise, which had been provided as part of an application for planning permission for the wind farm in Wicklow. This request was refused on the ground that RP was not a “public authority”. This refusal was then appealed to the Commissioner, who dismissed the appeal and agreed that RP was not a "public authority" as defined by Article 3(1)(b) (i.e. a natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment) or Article 3(1)(c) (i.e. a natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b)). The wording of Article 3 of the Regulations is exactly the same as the wording Article 2 of the AIE Directive.[1]
The Commissioner found that RP was not a "public authority" because Part VIII of the Electricity Regulation Act 1999 (the 1999 Act) did not vest RP with any special powers (i.e. powers beyond those which result from the normal rules applicable in relations between persons governed by private law).
Special Powers
In determining whether entities could be classified as persons who perform "public administrative functions" under national law (such that they would be subject to the AIE Directive), the High Court noted that it was necessary to examine whether those entities were tasked with the performance of services of public interest by national law. In addition, whether for that purpose, it was vested with special powers (by national law) beyond those which result from the normal rules applicable in relations between persons governed by private law. This was the test set out by the Court of Justice of the European Union (the CJEU) in Fish Legal and Shirley (Case C-279/12) when it considered the meaning of “public authority” and, in particular, its meaning under Article 2(2)(b) and Article 2(2)(c) of the AIE Directive.
High Court finding that RP was a "public authority"
The High Court overturned the Commissioner's decision and found that RP was a “public authority”. This was on the basis that RP was under the “control” of the ESB (which itself was a public authority within Article 2(2)(b) of the AIE Directive) and had "public responsibilities or functions…in relation to the environment”, and was “providing public services, in relation to the environment”.
The status of RP
The High Court held that the Commissioner had erred in law in not fully examining the legal status of RP under the 1999 Act. The High Court considered RP's role, the public law regulatory framework within which it operated and whether the 1999 Act entrusted RP "with the performance of services of public interest". The Court found, on the basis of specific provisions of the 1999 Act, that RP did enjoy certain special powers (for instance, RP enjoyed special powers relating to the compulsory acquisition of land/interference with property rights). The High Court also noted that this public law regime, which secured the supply of electricity, was “a public service relating to” aspects of the environment. In this, the High Court agreed with the argument advanced by RTK that generator construction and electricity generation for the national grid, under the regime provided for in the 1999 Act, involved public responsibilities, functions or services relating to the environment.
The test of "control" in determining whether a body falls within Article 2 of the AIE Directive
The High Court started by observing that the test of control is a functional one, the substance of which is determined by an assessment of where power really lies, rather than the form of a company's constitution. It noted the CJEU's judgment in Fish Legal and Shirley, which emphasised that the test of “control” involves an assessment of whether the potential controller is in a position to exert decisive influence on the action in the environmental field of the entity which is potentially under its control.
An entity will be classified as being under the control of "public authorities" within the meaning of Article (2)(2)(c) of the AIE Directive if it [i.e. the entity] does not determine, in a genuinely autonomous manner, the way they provide public services relating to the environment. Where an entity is controlled in that way, the obligation to disclose environmental information only extends to matters concerning its public responsibilities in relation to the environment, or its provision of public services relating to the environment.
In this case, the fact that the ESB (i) held half of RP's shares through a subsidiary company, (ii) provided day-to-day management for RP; and (iii) that all of the day-to-day operational activities of RP were operated through the ESB group, led the High Court to the conclusion that RP was "under the control of” the ESB.
The Court therefore found that information provided in a planning application relating to turbine wind noise for a wind farm engages “public responsibilities… relating to the environment” such that disclosure can be required under the AIE Directive.
RP was therefore caught under both limbs of Article 2(2)(b) and (c) of the AIE Directive, as it was found to have both performed certain public administrative functions, and to have done so under the control of ESB.
Conclusion
This judgment draws from CJEU jurisprudence and emphasises that the mere fact that an entity is a commercial company will not preclude it from potentially being subject to Article 2 of the AIE Directive. This means that disclosure obligations, such as those imposed on RP, may be imposed on other energy companies who perform public functions related to environmental management, where there is a clear administrative regime regulating and supervising those functions and where those entities do not have genuine autonomy vis-à-vis the State.
For more information please contact Alison Fanagan, consultant or Mark Thuillier, associate or any member of the Environmental & Planning team.
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[1] Note: The High Court initially refers to Article 3 of the Regulations, but then switches its references to Article 2 of the AIE Directive. For ease of review, I have mirrored the High Court's approach and made references only to Article 2 of the AIE Directive after the initial introduction.
Date published: 12 May 2021