Ireland proposes ‘streamlining’ EPA licensing to meet decarbonisation goals

Ireland’s General Scheme of the Environmental Protection (Miscellaneous Provisions) Bill 2024 (51-page / 459KB PDF) is set to introduce several changes, such as providing definite timeframes for EPA licencing decisions, to make the licencing process more efficient and predictable while ensuring the agency can enforce environmental regulations more effectively.

These changes are needed to achieve Ireland’s green transition and climate objectives. According to the Department of Energy & Climate Change’s (DECC) regulatory impact analysis (10-page / 298KB PDF) on the bill, it was not unusual for licence applications to the EPA to take two years to reach a final decision. These delays are not beneficial for Ireland’s decarbonisation goals, nor are they beneficial for stimulating environmental economic activity.

In Ireland, facilities planning to engage in certain industrial activities outlined in the Industrial Emissions Directive (IED) and certain waste and recovery activities, including landfills and ship recycling, must apply for a licence from the EPA and proactively consider environmental considerations early in the design and planning stages.

However, applicants often face delays. The Bill seeks to alleviate issues in the EPA’s current licencing system that have resulted in delays to the development and deployment of renewable energy facilities such as anaerobic digestion plants used for biomethane production. These plants form a key part of the plan to decarbonise Ireland’s economy.

One of the most significant changes introduced by the Bill is to set definite timeframes for decisions on EPA licence applications. The aim is to provide certainty to developers where a licence is required for the operation of their facility. 

For example, under the updated system the EPA will be required to decide with 26 weeks on application for licence for an activity considered unlikely to have a significant effect on the environment, and it will have up to 52 weeks to consider application for an activity considered likely to have a significant effect on the environment. The timeframe for reviewing existing licences will be capped at 16 weeks.

While the proposals are sound in principle, there may be some practical issues to consider. If the EPA fails to reach a decision within the specified timeframe, it raises questions about the outcome. While the default position may suggest automatic licence approval, it is unlikely the EPA would allow potentially environmentally hazardous activities to proceed without the proper authorisations. Instead, the EPA may choose to refuse a licence application, compelling the applicant to reapply. As a result, the benefit to the applicants remains uncertain when the EPA is compelled to decide or fails to do so.

Exemptions and revised review process

Certain developers will be able to benefit from an exemption scheme as part of the proposed changes. Applicants for the Integrated Pollution Control (IPC) licence, the Industrial Emissions (IE) licence or the waste licence may seek an exemption from conducting an environmental impact assessment (EIA) if specific conditions are satisfied.

The Bill specifies that exemptions are granted when there are exceptional circumstances; when an EIA could adversely affect the proposed activity’s purpose, such as during civil emergencies or national defence matters; or when alternative means can achieve the objectives of an EIA.

However, the exemption system may still lead to delays or a prolonged application process, as an application for exemption approval must come before the IPC licence, the IE licence or waste licence application. Further delays can be expected if a decision to grant an exemption undergoes judicial review.

The Bill also intends to update the review process for EPA licences. Currently, the EPA conducts a comprehensive review of existing licences when applications are submitted. However, a proposed change means that minor licence modifications would undergo a high-level review, bypassing the need for an EIA or consultation under the Industrial Emissions Directive.

Other important amendments

The Bill introduces further measures to give the EPA more options and flexibility to efficiently regulate lower risk activities, minor changes to licences and dealing with future emergency events.

Disapplication of proposed determinations

Given the urgent nature of certain emergency and exceptional circumstances applications, it is not feasible to have one round of consultation on an application and a subsequent round of consultation on a draft decision. The Bill proposes to allow the EPA to bypass the current requirement to notify certain parties about its decision on a licence application under specific circumstances. These include where the activity:

• is due to an emergency;
• has planning permission;
• is unlikely to significantly impact the environment; or
• doesn’t require consultation according to the Industrial Emissions Directive.

The intention for this approach is to ensure greater flexibility while maintaining environmental considerations. This change is also set to addressing a gap in the current licencing system, which does not make provision for possible future emergency circumstances.

General binding rules

The Bill proposes granting the EPA authority to establish general binding rules for specific activity categories. Companies engaged in these activities requiring a licence under the Environmental Protection Agency Act 1992 would follow these rules instead of obtaining a licence to perform these activities. For this, companies must register relevant activity details with the EPA and comply with established rules.

More resources are needed for the licencing system

According to DECC’s regulatory impact analysis on the Bill, it is estimated that the EPA would require approximately up to 70 staff at an annual cost of up to €7m if it is to deliver an efficient and effective licencing system that meets the proposed mandatory timelines. In addition to that, provision must be made for a ‘contingency capacity’ to cope with sudden increases in licence applications. Due to the variable rate at which applications are made, staff will also require training so that they can be re-assigned to other duties during quiet periods.

Co-written by Shani Stallard and Oisin Doyle of Pinsent Masons.