FAILURE TO STOP unlicensed large-scale excavation of horticultural peat in Co Westmeath causing “irreversible environmental impact” would be a “complete failure” of the State’s obligations to uphold strict EU environmental law, the Environmental Protection Agency (EPA) told the High Court this week.
The environmental watchdog is seeking an injunction against Harte Peat Ltd for peat extraction from a site near Finnea in Co Westmeath that the EPA says the company has carried out without a licence from the environmental watchdog as required under law.
Currently, large-scale peat extraction needs both planning permission and EPA licensing, with in-depth assessment of environmental and climate impacts assessed under both regimes in line with requirements under EU law.
The EPA argues that Harte Peat has been extracting peat from hydrologically connected peatland encompassing an area greater than 50 hectares, the threshold at which an EPA licence is required. Harte Peat supplies peat casing to the mushroom industry in Ireland and abroad.
‘Irreversible environmental impact’
Representing the EPA, Fintan Valentine SC stated that there was long-term and continued extraction works being carried out by Harte Peat without either planning permission or EPA licensing as required under national legislation.
He said that the continued extraction of peat by the company is causing “irreversible consequences” to such an extent that “boglands will never recover”. “The longer it goes on, the bog is going to continue to disappear,” he told Ms Justice Siobhán Phelan today.
In an affidavit from EPA inspector John Gibbons, read out by Valentine, he states that Harte Peat has been active at the bog in question since at least 2009. In his affidavit, Gibbons states there has been an intensification of work since 2016.
Speaking during separate deliberations before Mr Justice Anthony Barr yesterday, during which possibility of the case being postponed to a later date was raised, Valentine said that the EPA would resist any postponement application due to the “irreversible environmental impact” caused by the “deep quarrying of peat down to the marl” by Harte Peat.
“The bogs in question could be gone and the environmental damage done and irreversible”, Mr Valentine said, and would constitute a “complete failure” of the State in its obligations to ensure EU environmental law is upheld.
Representing Harte Peat, Michael McDowell SC said today that his client is extracting peat on a bog where peat harvesting has been going on “since time immemorial”.
He argued that his client’s operation is exempt from the need for planning permission as peat extraction commenced on the site – albeit not carried out by Harte Peat at that time – prior to 1964 when modern planning laws were introduced in the State.
McDowell stressed that any decision in favour of the EPA would be “catastrophic”, not just for his client, but also for the mushroom industry in Co Monaghan that relies very heavily on Harte Peat’s supply of mushroom casing. Harte Peat’s continued operation, he said, is “essential for the mushroom industry in Ireland”.
EPA refusal of licence application
Ms Justice Phelan is also set to simultaneously hear Judicial Review proceedings brought by Harte Peat seeking to overturn the EPA’s November 2020 decision to refuse to process an application the company made in 2019 for an EPA licence to extract peat from its sites in Co Westmeath.
Valentine said that the EPA refused the company’s application for a licence as it did not have planning permission from Westmeath County Council and could not show any evidence that it was in the process of seeking planning permission. Under current rules, companies need to have planning permission or have a live planning application in train prior to seeking EPA licensing, he said.
McDowell said that the issue dates back to previous injunction proceedings brought by the EPA against Harte Peat in 2018 in which it also argued that the company was extracting peat without a licence near Finnea.
According to McDowell, a settlement agreement was made in the case under which Harte Peat agreed to apply to the EPA for a licence. McDowell argued that Harte Peat’s licence application was made during a period when peat operations were exempt from planning permission.
In January 2019, the then-Government introduced two pieces of regulation that exempted peat harvesting from the need for planning permission and brought all large-scale extraction above 30 hectares solely under a proposed new EPA licensing system.
The regulations, however, were struck down by Mr Justice Garrett Simons in September 2019 after a challenge by the NGO Friends of the Irish Environment. Mr Justice Simons ruled the regulations were “inconsistent” with requirements under EU environmental law and that the use of secondary legislation to introduce amendments to give effect to a new peat licensing regime was “ultra vires”.
Following the decision, the regulatory system returned to the previous set-up whereby large-scale peat extraction needs both planning permission and EPA licensing in order to lawfully operate.
McDowell said that his client made its application for an EPA licence in “good faith” under the law being as it was at the time, whereby the need for planning permission was quashed. The EPA, he said, has “now sideswiped our application aside”.
Valentine told the court, however, that there was a side agreement as part of the settlement in the 2018 injunction case whereby it was agreed that there would be nothing to stop the EPA from taking fresh injunction proceedings if the new peat regulations under which Harte Peat was to make its application for an EPA licence were struck down or set aside, as they were in Mr Justice Simons judgement in September 2019.
McDowell had also argued that the Judicial Review case should be heard first, not just because the application was made prior to the EPA’s injunction application, but because the “legal logic” is that the Judicial Review comes first.
If the Judicial Review case were to succeed, he said, “the injunction proceeding falls away completely. Simply, it is a bird that will not fly”.
Valentine said that the EPA did not accept this argument, as, even were Harte Peat to succeed in the Judicial Review proceedings, the company “will still be carrying out peat extraction without a licence”.
Ms Justice Phelan determined to first hear the injunction proceedings. The case is set to continue tomorrow.
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