Decision
Ms Fand Cooney and EirGrid
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0029
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0029
Published on
On 26 May 2017, the appellant made a request under the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations) to EirGrid for the following:
“In relation to the Laois‐Kilkenny Reinforcement project (CP0585) A copy of the most up‐to‐date ‘Single Line Diagrams’ showing the layout of:
- the 400kV Substation at Coolnabacca and
- the 110 kV Substation at Ballyragget”.
As EirGrid did not make a decision on the request within one month the request was deemed to be refused pursuant to article 10(7) of the AIE Regulations. The appellant sought an internal review of that deemed refusal on 29 June 2017.
In its internal review decision dated 10 July 2017 EirGrid refused the request for a copy of the Single Line Diagrams (SLDs) on the basis the information requested was not “environmental information” within the meaning of Article 3(1) of the AIE Regulations. The appellant appealed the internal review decision refusing her request for information to this Office on 10 July 2017.
Under article 12(5) of the AIE Regulations, my role is to review the internal review decision and to affirm, annul or vary it. In this instance, I am concerned with the question of whether EirGrid was justified in its decision to refuse the appellant’s request on the basis that the requested information does not fall within the definition of environmental information within the meaning of article 3(1) of the AIE Regulations.
In line with my decision in CEI/12/0004 (Gavin Sheridan and Dublin City Council) (available at www.ocei.gov.ie) it is my practice in cases such as this to review as a preliminary matter whether particular information is environmental information. Accordingly, the scope of my review in this case is limited to the question of whether the information requested is environmental information for the purposes of the AIE Regulations.
In conducting my review I took account of the submissions made by the appellant and EirGrid. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered. I also had regard to:
the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
Article 3(1) provides that “environmental information” means:
“any information in written, visual, aural, electronic or any other material form on:
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c)”.
The public authority’s position
EirGrid in its submission to this Office stated that the SLDs do not fall into any of the six categories set out in the definition of environmental information in article 3(1) of the AIE Regulations. Regarding article 3(1)(a), (c), (d), (e) and (f), it simply submitted “[t]he record in question does not contain any information under this element of the definition”.
EirGrid made a more detailed submission as to why it believed the information requested was not environmental information under article 3(1)(b). Although EirGrid stated that the SLDs appear to fall under paragraph (b), it went on to submit that this is not the case. It submitted the SLDs do not contain information relating to factors affecting or likely to affect the elements of the environment. It described the SLDs as technical records. It stated the SLDs do not describe any physical characteristics of the assets to be constructed under the Laois‐Kilkenny Reinforcement Project, only the sequence in which the assets are to be placed from an electrical design perspective.
In regard to article 3(1)(c), EirGrid submitted the SLDs do not provide information on measures such as plans, policies, activities etc. It stated the purpose of the SLDs is to give a simplified electrical line diagram representation of substation equipment. It went on to state the SLDs do not show any information on how or when the ultimate physical asset (electricity substation) will be constructed, what it will look like or the actual size or appearance of the components in the ultimately constructed assets.
In its submission concerning article 3(1)(b), EirGrid cited the decisions in CEI/15/0009 (Ms Fand Cooney and the Commission for Energy Regulation) and CEI/11/0001 (Mr. Gavin Sheridan and Central Bank of Ireland) concerning the definition of environmental information. Both decisions are available at www.ocei.gov.ie. In CEI/15/0009 I found that the requested information was information “on” a measure under article 3(1)(c), and thus, was environmental information within the meaning of the AIE Regulations. In CEI/11/0001 the former Commissioner found that the part of the requested information concerning the general business functions of the public authority, was not environmental information within the meaning of the AIE Regulations as they did not have a sufficient connection with the environmental impact of the activity concerned.
The appellant’s position
The appellant submitted that the SLDs are environmental information under article 3(1)(c) of the AIE Regulations. She stated that the Laois‐Kilkenny Reinforcement Project is a large one involving the construction of an electricity substation, to be situated on an aquifer, in County Laois and the construction of new powerlines. The appellant also stated that the Project involved the carrying out of an Environmental Impact Assessment, an Appropriate Assessment and has received planning permission.
The appellant submitted the Laois‐Kilkenny Reinforcement Project involves construction, which she added has already started, and as a result is an activity that is likely to affect the environment. She went on to submit that under the AIE Regulations the SLDs are information “on” an activity affecting or likely to affect the elements and factors referred to in the definition of environmental information in article 3(1)(a) and (b).
In response to a query from my investigator about the connection of the SLDs to the Laois‐Kilkenny Reinforcement Project, the appellant in a further submission described the SLDs as “the foundation of the activity”. She stated that the SLDs define the nature, extent and components of the activity. She also stated that “almost everything else to do with the project is to support the delivery of the requirements set-out in the single line diagram - everything else is built around whatever components are set-out in the SLD.”
Analysis of the justification of the internal review decision
In this review I had to determine if the SLDs, which EirGrid provided, fell within the definition of environmental information within the meaning of article 3(1) of the AIE Regulations.
Definition of environmental information
Article 3(1) defines environmental information as any information on the categories listed at paragraphs (a) to (f) of that article (reproduced above under the heading “Relevant AIE legislation”). As I noted in CEI/12/0004, the definition of environmental information is broad and the examples provided in article 3(1)(a) to (f) of the definition illustrate the types of information that fall under the definition. The Aarhus Guide provides at page 50 that deciding what environmental information is requires a degree of interpretation by the public authority in a particular case. It goes on to say that in defining environmental information, the clear intention of the drafters was to "craft a definition that would be as broad in scope as possible, a fact that should be taken into account in its interpretation."
Is the requested information environmental information?
For information to qualify as environmental information it must fall into one of the six categories set out in article 3(1). I examined the contents of the SLDs and considered them in light of each of the paragraph of the definition in article 3(1).
EirGrid in its submission stated that the SLDs are not environmental information under article 3(1)(a), (b), (c), (d), (e) or (f). The appellant in her submission stated that the SLDs are environmental information under article 3(1)(c). Having reviewed the SLDs, I am satisfied that the SLDs are not environmental information within the meaning of article 3(1)(a), (b), (e) or (f).
Paragraph (c) of the definition of "environmental information"
Turning to whether the SLDs are environmental information within the meaning of article 3(1)(c), I set out my approach to answering this type of question in CEI/15/0007 (Mr Ken Fox, Raidió Telefís Éireann and the Department of Defence) (available at www.ocei.ie). Although I have not repeated that analysis in this decision, the same principles apply in this case.
Applying the approach set out in CEI/15/0007 to this case, I first considered whether the Laois‐Kilkenny Reinforcement Project is a measure or activity affecting or likely to affect the elements and factors of the environment or a measure designed to protect to those elements under article 3(1)(c). Finding that it was a measure and activity under article 3(1)(c), I went on to consider whether the SLDs are information “on” that measure or activity within the meaning of the AIE Regulations.
The Laois‐Kilkenny Reinforcement Project involves the construction and operation of electricity substations. In CEI/15/0009, I considered a different and unrelated AIE request relating to the same project. In that decision I found “that a project, to construct and operate a large electrical substation, is a measure likely to affect the elements of the environment.” I see no reason to depart from that finding in this decision. The Project can be described as a plan to reinforce the quality and security of electricity supply in Kilkenny, Carlow, Kildare and Laois. That plan is one which is likely to affect the elements and factors of the environment such as landscape and energy. Accordingly, I am satisfied the Project is a measure affecting or likely to affect the elements and factors of the environment under article 3(1)(c).
The appellant submitted the Laois‐Kilkenny Reinforcement Project involves construction and thus is an activity affecting or likely to affect the environment. Having looked at the planning permission for the Project which approves the construction of, among other things, a new substation at Coolnabacca and a new substation at Ballyragget I am satisfied the Project involves construction. The appellant went on to state that construction had started on a part of the Project. An update on the Project on EirGrid’s website stated that works on an electricity station had started in April 2017. Accordingly, I am satisfied that the Laois‐Kilkenny Reinforcement Project is an activity affecting or likely to affect elements and factors of the environment such as landscape.
To summarise I am satisfied the Laois‐Kilkenny Reinforcement Project is a measure and activity affecting or likely to affect the elements and factors of the environment under article 3(1)(c). Having found the SLDs concern a measure and activity under article 3(1)(c), I went on to consider whether they are information “on” that measure and activity. In CEI/15/0007, I went on to state that an assessment of what is “integral” to a measure or activity under article 3(1)(c) is a useful test to employ when considering whether information falls within this category.
As set out above, the appellant submitted that the SLDs are “the foundation” of the Laois‐Kilkenny Reinforcement Project and that almost everything relating to the project is to support the delivery of the requirements set-out therein. She also submitted documentation describing one line diagrams (another name for SLDs) as “probably the most important document” in a substation design package. It went on to explain that SLDs define the design parameters and scope for such projects. It referred to SLDs as the “road map”.
In support of this, the appellant submitted a document of EirGrid’s on the Laois‐Kilkenny Reinforcement Project which estimated “based on the single line diagrams” the size of the substation and other buildings to be constructed. It also estimated costs associated with the project based on the SLDs. The appellant continued that the SLDs are integral to the Project, especially because it is a substation project, and that they are a fundamental aspect of the project. Having reviewed the SLDs, I am satisfied the SLDs illustrate (in an unscaled manner) the electric power distribution system for the Project. As a result, I am persuaded they can be described as a road map for the Project. Accordingly, I am satisfied the SLDs are integral information “on” a measure or activity within the meaning of article 3(1)(c) of the AIE Regulations.
In summary, I am satisfied there is a sufficient connection between the SLDs and the measure and activity affecting or likely to effect the elements or factors of the environment, in particular the construction of the substations. I am also satisfied the SLDs are integral information “on” a measure or activity. Accordingly, I am satisfied the SLDs are environmental information within the meaning of the definition in article 3(1)(c) of the AIE Regulations.
For the reasons outlined above, I find that the Laois‐Kilkenny Reinforcement Project is a measure and activity affecting or likely to affect the elements and factors of the environment. I also find that the SLDs are information on that measure and activity within the meaning of the AIE Regulations. Therefore, I find that the SLDs are environmental information within the meaning of the definition of environmental information in article 3(1)(c) of the AIE Regulations.
I went on to consider whether it would be appropriate for me to require EirGrid to make environmental information available to the appellant. As I stated at the outset of this decision, the scope of my review in this case is limited to the question of whether the information requested is environmental information for the purposes of the AIE Regulations.
My review did not consider whether any of the exceptions under the AIE Regulations applied or whether the interests of third parties might be affected. Therefore, in the circumstances it would not be appropriate for me to require EirGrid to release the environmental information to the appellant. However, I note EirGrid in its submission stated that it is “not particularly concerned” about the release of the records which are the subject of this appeal.
Having reviewed EirGrid’s internal review decision, I find its refusal was not justified by the reason given. Accordingly, I annul EirGrid’s decision. In light of my decision I expect EirGrid to process the appellant’s request in accordance with the AIE Regulations.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Peter Tyndall, Commissioner for Environmental Information