The High Court has agreed to an early hearing of a challenge to a process in which power companies are allowed to bid to sell energy to the national grid.
Kilshane Energy Ltd wants to build two plants in north Dublin to connect with the grid but it has been told by the grid manager, EirGrid, it did not qualify to join an auction process, due to start on November 21st, which will determine who can sell electricity to the grid. The energy regulator, the Commission for Regulation of Utilities (CRU) has backed the EirGrid decision.
Kilshane got leave from the court last week to bring a judicial review challenge over the decision. On Tuesday, two related energy firms, Coolpowra Flex Gen Ltd and Coolpowra Bess Ltd, were also granted leave to bring similar proceedings against EirGrid and the CRU.
Kilshane’s counsel Tony McBride SC, instructed by Dermot McNamara Solicitors, said the application for an early hearing was because the Northern Ireland grid manager, the Systems Operator of NI (SONI), had agreed to postpone the November 21st date for the start of the auction process to November 28th after the Belfast High Court on Friday agreed to grant leave to a Kilshane sister company to challenge the auction process by SONI on similar grounds.
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The wholesale electricity market operates as a single market across Ireland and is jointly regulated.
The Belfast court had also agreed to give the case an expedited hearing this Thursday, Mr McBride said.
This had shown that it was possible to delay the November 21st start date for the auction even though the CRU had said no delay could be contemplated because of security of electricity supply concerns for the State, he said. It was a dramatic development from Kilshane’s point of view, he said.
The auction was the “only game in town” and from Kilshane’s point of view, the refusal to allow it to participate would have cascade effects on projects that cost tens and hundreds of millions of euro, he said.
Kilshane was seeking, among other things, an order allowing for a “correction in trade” which will mean the company could be accommodated whether or not the auction had finished before the court gave its decision, he said.
The respondents had suggested the earliest date for a hearing should be December 10th but “this might as well be next year” as the auction will be over by then, he said.
Kilshane sought a December 3rd date. The Belfast case will by then have also heard what is a central point in the Dublin proceedings relating to the claim by EirGrid that Kilshane’s proposal was not feasible, he said.
Mr McBride said Kilshane would also seek liberty to bring injunction proceedings halting the auction process depending on what happens if the judicial review challenge is heard on December 3rd.
Counsel on behalf of the defendants said while they were keen to facilitate an early hearing date, they believe it had to operate within realistic time frames.
Ms Justice Mary Rose Gearty said that, over lunch, she had “located a judge” who was willing to give an early combined hearing of the Kilshane and Coolpowra cases.
She gave directions for exchange of papers between the parties and set the hearing date for December 3rd. She also agreed to a request from the Minister for Environment, Heritage and Local Government to be joined in both cases as a notice party.
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