Fiona Brewer
Laura Mackey
Simon McGarr
Fergal Crehan
Gary Malone
Mattie Lennon
Sarah Byam
Anita Kiely
Fred Roe
Keisha Poiro
Emma Pearson
Fluffy Dutton
Donal O'Driscoll

The Corrib Gas Field: Safety First?

There is a mistaken belief that the European Union directive "Seveso II" applies to the Corrib Gas pipeline; it does not. Its technical description is Directive 96/82/EC and it has been amended by Directive 2003/105/EC. This specifically excludes " the transport of dangerous substances in pipelines, including pumping stations, outside establishments covered by this Directive"

In other words, in the case of a pipeline laid overland ("outside establishments") Seveso II has no application. The full panoply of the obligations, procedures and safeguards established by Seveso II is missing in the case of the Corrib gas pipeline.

While the pipeline is not a workplace, when it's planned or installed or functioning, Shell E & P Ireland Ltd. and its fellow consortium members would owe duties to the public under Section 7 of the Safety Health and Welfare at Work Act 1989

7. --(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their safety or health.

... ...

     (3) In such cases as may be prescribed, it shall be the duty of every employer and self-employed person, in the prescribed circumstances, and in the prescribed manner to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way he conducts his undertaking as might affect their safety or health.

Unfortunately the State has not yet prescribed the information referred to in Subsection 3, but it should not be difficult to envisage what that information would be in the case of the Corrib gas upstream pipeline.

In truth, the Government is not very active in ensuring that the public have ready access to information generally, but particularly about "infrastructure".

Bertie Ahern went to China in January 2005 and (in a moment of high emotion) declared;

"I would like to have the power of the Mayor [of Shanghai] ... I would just like that we can get through the consultation problem as quick as possible".

Sure enough the Government has plans to get through the "consultation problem"; it has "planning reform proposals" in mind. These will reduce the time spent processing applications for major projects including roads, rail, metro, pipelines, landfills and incinerators.

In an ambitious move it proposes giving a discretion to judges to seek indemnities from applicants for judicial review to show they have the financial resources to meet the costs of the case, should they lose. This is good news for the applicant's lawyers but not for the judge, the applicant or the public generally.

How will the judge know when he/she should exercise the discretion? Applicants wearing cardigans will clearly fail the test of the eagle eye of the legal eagle. But why? Michael O'Leary of Ryanair famously dresses down. Is he to be discriminated for this? Now the Government of Japan is encouraging the nation's male workforce to stop wearing suits. Will Japanese-Irish applicants also have difficulty with these martinet sergeant-major judges?

Another difficulty for the judge will be the need to ensure that the cardigan-wearing applicant is not from the constituency of the Minister for Justice. Projects intended for that constituency will not be subject to any "judicial discretion". The Minister may be in favour of the "planning reform", but not for his constituents. The planned incinerator for Ringsend will not be 'reformed"; it will go through the ordinary planning process.

Of course, the strange thing about all this is the fact that the Corrib gas pipeline has no planning permission. It was not subject to any lengthy delay in the planning process. (Shell's planned terminal was, but that is unique to Shell).

This is symptomatic of an impatience with mere law. And that impatience goes very far. Consider Case C-494/01 Commission v Ireland. On 26 th April 2005 the European Court found that Ireland had a culture, a policy of hostility to and failure to apply European directives on waste control and treatment.

This policy was applied since 1977 and was current at the date the Court heard the case. The consequence was that the environment of Ireland was seriously damaged. It was Government policy to damage that environment. The "environment" embraces human health.

No evidence was adduced to the European court of injury to health, but that was due to the constraints on the Commission in the evidence it had at its disposal, rather than from the absence of such injury.

Incidentally, the Government displayed a remarkable view of the concept of "burden of proof". It contended, in effect, that when Commission evidence was denied by the Government the evidence had been refuted. This was not an example of the current misuse of the word "refute" meaning "rejected" or 'denied". No, it really did claim that a denial from them was a refutation, meaning a comprehensive defeat of the Commission proposition. In fact, the Commission produced evidence that refuted claims by the Government that the wrongful acts had ceased, which they had not.

So, what to expect from the Minister's review of safety of the Corrib gas pipeline?

Well, he is absolutely committed to the project, in the sense that the Shell E & P Ltd. consortium have been induced to spend large sums of money on the project. Their expertise is greater than that available to the Minister. They have designed a unique element into the project, a high pressure upstream pipeline laid on land (bog actually). Short of such a pipeline failing somewhere in the world he has his work cut out for him to prove that it is unsafe.

But maybe there was a good idea trying to get out in our formulation of the "burden of proof" for the European court.

by

A.L. Waller
1st August 2005

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