The Environment (Miscellaneous Provisions) Bill 2024 (Bill) aims to provide more certainty around the timeframe for decisions on applications for licences from the Environmental Protection Agency (EPA) for the energy, food, pharma, chemicals, waste and other industrial sectors.
It will complement the statutory timelines being introduced under the Planning and Development Bill 2023.
Current Position
The EPA licencing application process is governed by the Environmental Protection Agency Act 1992 (1992 Act). It is not unusual for applicants to experience significant delays under the current process, with some applications taking up to two years to be finalised. The factors contributing to this are:
- the absence of clear decision-making timelines;
- the EPA’s inability to appeal to “general binding rules” when assessing lower-risk activities; and
- that relatively minor licence changes require engagement with cumbersome wholescale review processes.
The downstream consequences of these issues are substantial, to the detriment of the industry and the wider public. The lack of clarity regarding timelines for licence applications (both new and revised) and the resulting impact on assessing project timelines makes it more difficult to secure necessary investments. Simultaneously, the cumbersome nature of the processes threatens the security of our energy supply and infrastructure and hampers environmental sustainability efforts.
Main Changes
The General Scheme of the Bill was published in June 2024 and proposes several key amendments to remedy these defects.
1. Decision-making timelines
The Bill amends Section 83 of the 1992 Act and provides for the inclusion of defined decision-making timelines. The Bill obliges the EPA to note the number of decisions it makes within and outside these time frames in their Annual Report. The new time periods are as follows:
- a 26-week decision-making period applies where an application is made during the permitted application period. It is of relevance where planning permission is required (running from the time of grant of permission and the expiry of the time period to appeal, and if appealed, from the date of expiry of the time period for judicial review), or where planning permission is not required (if the EPA has determined that the activity is not likely to have a significant environmental impact);
- a 52-week decision-making period applies if an application was not made within the permitted application period (or where planning permission is not required but EPA determines the activity is likely to be of significant environmental impact), but for the increased timeline this runs in much the same way as the 26-week period; and
- a shorter period of 16 weeks applies where the EPA review is limited to particular aspects, as specified in the Bill.
2. Minor licencing changes
The Bill proposes to amend Section 90 of the 1992 Act, allowing the EPA to limit its review of altered licences to the proposed changes rather than compelling the EPA to conduct an examination of the licence in full where the changes are not substantial in nature. This limited review procedure will allow the EPA to deal with any changes in isolation, avoiding any unnecessary and time-consuming examination of applications.
3. General binding rules for lower-risk activities
Finally, the EPA can set out general binding rules applicable to any person performing an activity requiring a licence. Where general binding rules apply, the applicant will not need to seek a licence to perform the activity but instead will be required to register specified details of the activity with the EPA and meet the standard rules. This resembles the framework in the UK, as set out in the Environmental Permitting (England and Wales) Regulations 2016, which introduced different levels of control based on risk: exclusions (very low-risk activities), exemptions (lower-risk activities), standard rules permits and bespoke permits (permits written specifically for activities which are unique or of higher risk).
Conclusion
The proposed amendments to the EPA licensing process under the Bill are positive. They will facilitate the timely development of critical infrastructure in the energy sector and the transition to renewable energy sources while reducing the potential future need for ’emergency generation’ measures from the transmission system operator. This will further aid the development of a circular economy infrastructure, the deployment of progressive environmental protection technologies, and securing infrastructure investment, thereby stimulating significant sustainable economic activity.
The Bill has yet to be finalised and published, following which it will be initiated and debated before the Houses of the Oireachtas. Pre-Legislative Scrutiny was completed in July 2024. The Government Legislation programme includes the Bill in its list of legislation for priority drafting during the Autumn session. We will continue to keep you apprised of relevant developments.
For further information or to discuss the General Scheme of the Bill in more detail, please contact Michelle Martin, Fergus Devine, Máire O’Neill or your usual William Fry contact.
Contributed by Brian Lenihan.