Decision
Mr. N and Orsted A/S (Orsted) and Garracummer Wind Farm Limited.
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-112806-S2K0Q9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-112806-S2K0Q9
Published on
Whether either Orsted or GWFL is a public authority within the meaning of article 3(1) of the AIE Regulations
8 May 2024
Note: This decision was appealed to the High Court in July 2024. This page will be updated when that appeal has concluded
1. Garracummer Windfarm Limited (GWFL) operated a wind farm near the appellant’s residence. In June 2014, Brookfield Renewable Power Incorporated took indirect ownership of GWFL. In June 2021, Orsted took indirect ownership of GWFL via its acquisition of the business of Brookfield Renewable.
2. On 23 July 2021, the appellant made a request under the AIE Regulations to Orsted and to Brookfield Renewable for vibration data, Scada data, raw data, audio files and any other data concerned with the two noise assessments and one vibration assessment undertaken by GWFL at the appellant’s residence.
3. On 26 July 2021, the appellant made a separate request under the AIE Regulations for all wind speed data from met masts and all wind speed data from a turbine at GWFL for the dates that a consulting firm undertook noise assessments at the appellant’s residence in 2017 and 2020.
4. On 13 August 2021, Orsted issued a decision in which it refused the requests on the grounds that GWFL was not a “public authority” within the meaning of article 3(1) of the AIE Regulations. The appellant requested an internal review of this decision, but no internal review decision was issued.
5. The appellant appealed to this Office on 13 September 2021. During the investigation, the appellant queried what relationship there was between the respondent and Coillte.
6. In circumstances where the appellant made the request to Orsted but where the decision and submissions to this Office by Orsted also considered whether GWFL was a “public authority” under the AIE Regulations, this decision considers whether either Orsted or GWFL are public authorities for the purposes of the AIE Regulations.
7. The definition of a “public authority” under this provision was considered by the Supreme Court in [external-link https://www.courts.ie/view/judgments/e8b67a71-686f-484b-8c7e-cbd0be130d22/a828932f-fd46-42c5-a08e-4b94fa1c4ad2/2024_IESC7 (O'Malley%20J).pdf/pdf | Right to Know CLG v. Commissioner for Environmental Information (re Raheenleagh Power DAC) [2024] IESC 7 ] (Raheenleagh Power), in which O’Malley J. delivered the judgment on 6 March 2024. This Office wrote to the parties to ask whether they had any further submissions in light of the judgment.
8. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the parties. In addition, I have had regard to:
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. This review is concerned with whether either Orsted or GWFL come within the definition of “public authority” contained at article 3(1) of the AIE Regulations.
11. Where the Commissioner finds that a respondent body is not a public authority, he has no further remit to consider whether the requested information is environmental information or to consider directing its release.
12. Article 3(1) of the AIE Regulations transposes article 2(2) of the AIE Directive to define a “public authority” as:
“(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
(c) any 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 paragraph (a) or (b)”.
References below to paragraphs (a), (b) or (c) are to the relevant paragraphs in this definition.
13. In Fish Legal, the Court of Justice of the European Union ruled:
a. that in determining whether bodies were public authorities within the meaning of article 2(2)(b) of AIE Directive, it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law,
b. that bodies should be classified as “public authorities” by virtue of article 2(2)(c) of the AIE Directive, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the AIE Directive is in a position to exert decisive influence on their action in the environmental field, and
c. that bodies which are capable of being a public authority by virtue of article 2(2)(c) of the AIE Directive only in so far as, when they provide public services in the environmental field, they are under the control of a body or person falling within article 2(2)(a) or (b) of the AIE Directive are not required to provide environmental information if it is not disputed that the information does not relate to the provision of such services.
14. Orsted is a company listed at the Nasdaq Copenhagen stock exchange in which the Danish Ministry of Finance holds a majority share. Therefore, it does not come within the definition of a public authority under the terms of paragraph (a) of the AIE Regulations. I am satisfied that I do not have jurisdiction under the AIE Regulations to consider public authorities in other jurisdictions.
15. To the extent that Orsted may be under the control of the Danish Ministry of Finance, a public authority itself outside the jurisdiction, Orsted would also not fall within the definition of a public authority under the terms of paragraph (c).
16. GWFL is a private company limited by shares. Therefore, it does not come within the definition of a public authority under the terms of paragraph (a).
17. In April 2011, GWFL was granted an Authorisation to Construct and a Licence to Generate under the Electricity Regulation Act 1999 from the Commission for Energy Regulation (now the Commission for Regulation of Utilities or the CRU). GWFL submits that these were entirely regulatory in nature and that it was not entrusted with any special powers within the interpretation of Fish Legal or Raheenleagh Power and that through this regulation, it is subject to the normal rules applicable in relations between persons governed by private law. Orsted states that no decision-making by GWFL occurs that affects the environment in relation to the activity of licensed electricity generation
18. In Raheenleagh Power, O’Malley J. considered the issue of special powers and held, at para. 135, that “The basic requirement is not simply that the entity has powers, but that the powers are vested for the purpose of performing services of public interest” (emphasis in original) and, at para 136, that “entrustment” of special powers “implied some level of obligation in relation to the performance of a service of public interest”.
19. O’Malley proceeded in Raheenleagh Power to consider the significance of the grant of a licence by the CRU in paras. 139–144. She observed that “a great many occupations and businesses can only be pursued with a license, under a statutory scheme of regulation, but they will not necessarily be covered by the directive”. The license which GWFL has from the CRU subjects it to a regulatory regime, but I am satisfied that this does not bring it within the scope of bodies which can be considered to public authorities.
20. GWFL also participated in the Renewable Energy Feed-in Tariff (REFIT) scheme, a competitive scheme introduced by the Minister for Communications, Energy and Natural Resources. I am satisfied that participation in this scheme did not provide it with any special powers in the meaning of Fish Legal.
21. In considering whether GWFL has “special powers” as understood by Fish Legal, I am satisfied that it is not “performing public administrative functions under national law, including specific duties, activities or services in relation to the environment” as understood by paragraph (b).
22. Similarly, in considering whether Orsted, by virtue of its control of GWFL, it too is subject to the same regulatory system, without any special powers as understood by Fish Legal. I am therefore satisfied that it too does not fall under the understanding of a “public authority” in paragraph (b).
23. GWFL would be encompassed within paragraph (c) of the AIE Regulations if it were under the control of a body falling within paragraphs (a) or (b).
24. In 2009, Bord Gáis Éireann, a body established by statute, took indirect ownership of GWFL through its purchase of SWS Energy Group from Ion Equity. In June 2014, Brookfield Renewable Power Incorporated took indirect ownership of GWFL. In June 2021, Orsted took indirect ownership of GWFL via its acquisition of the business of Brookfield Renewable. Orsted is a company in which the Danish Ministry of Finance is a majority shareholder.
25. In his submissions, the appellant directed the attention of this Office to the judgment of Owens J. in Right to Know CLG v. Commissioner for Environmental Information (re Raheenleagh Power DAC) [2021 IEHC 46 ]. While that judgment itself has been superseded by the analysis of the Supreme Court in the same proceedings, in which the Supreme Court remitted the appeal for reconsideration, the factual circumstances can also be distinguished. At its creation, Raheenleagh Power DAC was jointly owned by Coillte and ESB Ireland. Coillte later subsequently sold its share to a private company, such that at the relevant time, ESB Ireland was a 50% shareholder of Raheenleagh Power DAC. In remitting the appeal to the Commissioner, O’Malley J. noted in Raheenleagh Power at para. 146 that the question of control of a company for the purposes of paragraph (c) could not be determined by reference to the shareholding alone, and was a mixed question of law and fact.
26. By contrast, as noted for the avoidance of doubt by Orsted, there has been no legal relationship between Bord Gáis Éireann and GWFL in the operation of the wind farm since June 2014. The requested information was collected at dates between 2017 and 2020 and the AIE request was made in 2021. Therefore, at all relevant times, GWFL was not under the control of Bord Gáis Éireann in the meaning of paragraph (c).
27. The appellant also queried whether there was a relationship between Coillte and GWFL. Orsted clarified that GWFL is not on Coillte land. GWFL purchased land from Coillte in 2009 and Orsted stated that there was no relationship at any relevant time between GWFL and Coillte save for the standard rights of way and wayleaves.
28. As I have determined that neither Orsted nor GWFL is not a public authority in the meaning of the AIE Regulations, I will not proceed to consider the question of release of the requested information.
29. Having carried out a review under article 12(5) of the AIE Regulations, I find that Orsted and GWFL are not public authorities within the meaning of article 3(1) of the AIE Regulations. Accordingly, neither Orsted or GWFL were obliged to process the appellant’s request, and the Commissioner has no further jurisdiction in relation to this matter.
30. 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.
Julie O’Leary
On behalf of the Commissioner for Environmental Information