Plans to construct a major gas storage project off the Co Antrim coast were so significant they should have been referred to the full Stormont Executive for approval, the Court of Appeal heard on Tuesday.
Counsel for campaigners opposed to the project at Larne Lough claimed former Minister Edwin Poots wrongly gave authorisation without obtaining consent from colleagues in the power-sharing coalition.
The scheme will involve carving seven underground caverns out of salt layers at a depth 1,350m below sea level by a process known as solution mining.
Located within special protection and conservation areas, the project is expected to last for 40 years. The units would then be decommissioned at the end of their lifespan.
In 2021 Mr Poots, then the DUP Minister for Agriculture, Environment and Rural Affairs, approved the proposed development by Islandmagee Energy Ltd.
It is estimated that the units, close to where scenes for the TV series Game of Thrones were filmed, could provide more than 25% of the UK’s natural gas storage capacity.
Local campaign group No Gas Caverns and Friends of the Earth Northern Ireland have joined forces in a legal bid to have the marine licence permit quashed.
They claim it will keep Northern Ireland locked into fossil fuel dependency for decades beyond a target set to achieve net-zero emissions by 2050.
The excavation process will also allegedly lead to hypersaline salt and chemical solution being discharged into the sea near Islandmagee, creating a “dead zone” threat to marine life.
It was contended that Mr Poots failed to properly consider the environmental implications of a development proposal so significant, strategic, cross-cutting and controversial that he was required to refer it to the Executive Committee before granting permission.
But in August last year the judicial review challenge was dismissed at the High Court.
A judge backed the Department’s case that amendments in the Executive Committee (Functions) Act (Northern Ireland) 2020 provided more scope to give the go-ahead without seeking consent from the wider power-sharing cabinet.
He found that Mr Poots had correctly recognised the importance of the project, the scope of the opposition to it and then reached an evaluative determination on which the courts should be wary about making any intervention.
Appealing that ruling, counsel for the campaign groups, Conor Fegan, argued it was wrong to conclude the planning decision did not have to be taken by the full Executive.
“The significant and controversial issues were relating to the marine aspect of the development, the brine outfall pipe and what that was going to do to marine habitat species,” he said.
The three-judge panel was told that legislation brought in following the 2006 St Andrews Agreement on devolution, Mr Fegan insisted the statutory aim was to increase the matters to be dealt with by the Executive and to impose a legal obligation to act in accordance with the Ministerial Code.
The obligation is on the relevant minister to refer the matter to the executive, not on other minister colleagues to call the matter in,” he said.
It was contended that few projects come close to the gas storage initiative in terms of strategic significance for energy supply and security.
The court also heard that at the time Mr Poots only corresponded with another DUP Minister in relation to the issues.
“There are some decisions which are so significant and controversial that they should be taken by the Executive with all the parties briefed,” Mr Fegan said.
“Effectively what we had here was two DUP ministers corresponding with each other about a matter, even though you had Sinn Fein and the Alliance Party who had seats in the Executive who publicly stated their opposition to the project.
“The correspondence which was taking place was too little too late.”
According to counsel, it only related to a discussion about an emerging energy strategy.