knowledge 15 July 2026 |

MCF horizons Podcast Series Ep.1: The Critical Infrastructure Act

In this episode of MCF horizons, Karen Quigley and Brendan Slattery answer this and other questions about the Government's commitment to accelerating infrastructure.

 

Audio Transcript

Transcript available to view here, or in full below.

[0:00 – 0:20]

Welcome to MCF horizons, McCann FitzGerald’s podcast series, where we explore the legal and market developments, trends, and policy milestones that are shaping today's landscape. Through conversations with our lawyers, we share practical, forward-looking insights to help organisations navigate change and make informed decisions. Now, let's turn to today's episode.

[0:20 - 0:42]

Hello everyone. My name is Karen Quigley. I'm a Senior Knowledge Lawyer in McCann FitzGerald and I'm joined here by Brendan Slattery, a Partner in our Environmental and Planning Group. Welcome Brendan. Today we're going to talk all things Critical Infrastructure Act and we're going to kick off, I think. Brendan if you could give us some context I suppose to the Act, where it came from and what it's seeking to address.

[0:42 – 1:24]

Well, this is the moment where Ireland signals to itself and the world that it's ready to do major infrastructure. We've had a revised National Development Plan that commits the State to spend €275 billion. And as part of that, we have to acknowledge that every day delay has cost. And if you think about construction price inflation alone, a single day on a billion-euro project is going to knock you back somewhere around 80 grand to 100 grand a day. And on some of these projects, we're looking at billions of euros to be invested on behalf of the State.

[1:24 – 2.15]

And what the Critical Infrastructure Act does is take ideas formed in the Accelerating Infrastructure Task Force set up by the Department of Public Expenditure and Reform to look at the way we do things in Ireland both internally in processes around selecting projects and deciding which projects to advance for expenditure, to advance through Consenting, to then implement and how we go about getting all the relevant approvals and authorisations. And the Task Force very quickly identified that we needed to list for ourselves the important projects that are the backbone of the success of the State for the next 10, 20, 30 years and beyond. And this Act is the first step in doing precisely that.

[2:15 – 2.54]

So, you mentioned there about critical infrastructure projects. So the Act obviously will only apply to critical infrastructure projects or critical infrastructure programs that have been designated and therefore requires a designation order by our Government which needs to be laid before the Dáil. Given the summer recess and the fact that the Act requires a commencement order under section 10, is it likely that it'll be at least mid-September before we see a designation order under the Act? I see there's some irony in a piece of legislation about pace that has some delay at the outset. Just to acknowledge this legislation was adopted very quickly.

[2:54 – 3.44]

The Government set its shoulder to the wheel and pushed hard and ensured it was adopted promptly. But you're entirely right. It's been signed by the President. It's been passed by the Houses of the Oireachtas. It's ready to go. It needs a Minister to sign commencement order. It needs that list of projects designated. We know the kinds of projects they’ll be. We know that the key backbone for the State is going to be infrastructure, transport, energy, and water. It's going to be the projects that will carry our people to and from their work and their homes. It's going to be the projects that powers their places of work and those homes. It's going to be the sewers and water supply pipelines. And so it is not difficult to anticipate the kinds of projects that will be captured by the designation, but the timing for that is still uncertain. Those two steps need to be taken and there's that 21-day cooling off period effectively.

[3:44 – 4.35]

But already, just talking about critical infrastructure and decision-making at pace is already making a difference. You look at how the Housing Activation Office, the Major Projects Group’s work, you are seeing the Department of Public Expenditure apply the principles of critical infrastructure, apply the principles from the Accelerating Infrastructure Task Force already. And so when Uisce Éireann thinks about funding for a major wastewater treatment plant, it's in a position to shorten timelines, to make decisions promptly. When the Director for Metrolink is thinking about how to deal with litigation, that director is in a position to say I need to move with pace because there's a material cost to the State if I do not.

[4:35 – 5.16]

Yes. And on that basis, we're already seeing the benefits of this without it currently having immediate teeth. So, if I was to press you, Brendan, what types of projects do you think will benefit from a designation order by the Government? Well, immediately you think of projects that have taken time to mature and which will continue to take time unless given special priority and that's projects like the North South Interconnector crossing over three counties in the South and others in the North, like the water supply project to take water from the River Shannon to distribute across the greater Dublin area, like the Greater Dublin Drainage Project from the Clonshaugh wastewater treatment plant.

[5:16 – 5.48]

These are all projects that will be publicly funded, the ticket price for which is you know in excess of a billion euros where each day's delay is costing the State that €80,000 and we want to shorten that. And we shouldn't be surprised to see those classes of project identified. Now some of those already have planning permission. I mean what's really interesting is if you look over the last 12 months Ireland has already demonstrated itself ready, willing and able when it comes to Infrastructure. 

[5:48 – 6.37]

You know, if you talk to Iarnród Éireann and they would look at over a 100 route kilometres of electrification project already consented, you see Bus5:57 Connects largely already consented and free from challenge, you see Metrolink consented free from challenge, Greater Dublin Drainage, a suite of really significant projects already through the consenting phase. A lot of people when they think about this piece of legislation, they think great, it means An Coimisiún Pleanála will make a planning decision faster. Well, it's more than just that. Many of these projects have you know 10 or other approvals than just their planning decision across the Maritime Regulatory Authority, the Environmental Protection Agency, even within local authorities on specific approvals, building control authority and then a lot of internal approvals in the State, decision-makers whose job it is to decide is the public, are the public funds being well spent.

[6:37 – 7.04]

And every one of those decisions, every exercise of discretion, every moment of reflection and thought by public authorities, public actors now has to be taken with a view that anything that's critical infrastructure is the first thing they do in the morning. And it doesn't sit and wait on a to-do list. It doesn't get moved to the back of a chain. It's always at the front of the train of thought.

[7:04 – 7.36]

And you touched on a very important point there, I think, Brendan, in the sense that when a person thinks about the Critical Infrastructure Act, you think of An Coimisiún Pleanála and your main consent for the progression of a project. But actually, when you look at the definition of public body or relevant public body under the Act, it captures the Environmental Protection Agency or Ministers of Government, it captures MARA, for example. And I suppose it just leads me to question what are the implications for a project to be designated as a critical infrastructure project.

[7:36 – 8.05]

You know, does it in effect skip the queue? Well, I think right now if we take that core planning decision - An Coimisiún Pleanála and its directors of planning pause and think about what should get priority. Which decisions are made within the fastest time processes available to them. When we needed temporary emergency generators to keep the lights on in the winter of 2024, those decisions were made promptly.

[8:05 – 8.42]

For large scale residential development, almost all decisions made within 16 weeks. The statutory objective met. And what this will do is make sure that there's a hyper-class above all others that gets priority in and more. Often times our public authorities work in sequence rather than in parallel. Yes. And there's a lot of good common sense to that. Planning permission might be refused and it'll be a waste of another regulatory authority's time to spend time thinking about that until after it's clear that planning has been obtained.

[8:42 – 9.15]

And I can see some sense to that. What we're saying with critical infrastructure is the bet is consent will be granted and time is not wasted and it's worthwhile wasting it if it might be. In other words, get on with doing things at the same time. And that's a sea change for some decision-making bodies who traditionally would wait for a planning permission to be an input to their process. Instead, it's a process that's going to be working in parallel. And that'll be important for that may shorten some timelines by over a year, maybe longer if there's legal challenge on it.

[9:15 – 10.13]

And so even when you come to if there is a legal challenge at the end questioning the validity of any kind of approval, discretion or other exercise in favour of a critical infrastructure project, when they turn to the planning and environment court, they'll have a guarantee of getting a hearing date within 6 months. And that kind of priority is market-leading, World-leading. And that's what we should expect for projects that are identified as key critical to the success of the State to making the State a success for the you know over 6 million people we expect to have here between 2040 and 2050 that we need infrastructure that respects those people and we have the tools to do it and for the first time now we will have clarity around the order of priority - which projects are the ones that are going to unlock the benefits for everything else.

[10:13 – 10.51]

Now, one of the more controversial aspects of the Act is section 7, which disapplies section 15 of the Climate Action and Low Carbon Development Act. For the benefit of our listeners, section 15 imposes an obligation on a relevant body to in so far as practicable perform its functions in a manner consistent with a number of different things including the most recent approved Climate Action Plan. Now I suppose section 15 has been an identifiable ground of challenge for a number of years now but we have since February of this year a Supreme Court decision in Coolglass versus An Bord Pleanála which has clarified the application of section 15.

[10:51 – 11:44]

My question to you Brendan is whether the actual disapplication in section 7 of section 15 is actually required now in light of the decision in Coolglass. Fair question. The Court's understanding of what those climate obligations mean for decision-makers has changed. Yes. In the last year, there was a High Court decision that set the bar at a particular standard and that was the standard the State responded to in the Accelerating Infrastructure Task Force. Yes. And when it thought about this legislation and whether there needed to be a free pass from those climate obligations. The Supreme Court has since spoken loudly with setting a different tone. Yes.

[11:44 – 12.37]

That I think most people would say is a more accessible, easier to achieve threshold. It's still a legally enforceable obligation. And if you have a project that is pouring a lot of concrete or has specific greenhouse gas emission issues, then it's going to be something that will be tested in a consent process and potentially afterwards. I'm not a huge fan of exceptions that carve out from a norm for projects that are special. Special projects should win those battles on the weighing scales without the need to tilt that weighing scale so heavily in their favour. And I really do wonder whether the wiser thing for the State would have been to grow up in the Climate Action Plan and identify these projects in the Climate Action Plan.

[12:37 – 13.31]

And if you pause and think about our ambition on renewable energy one of the things that's necessary is to have currently gas-fired plants that fire when the wind doesn't blow or the sun doesn't shine. And in that context, the State grasped that nettle too and identified for the purposes of climate action, it will be necessary to have 2 gigawatts of gas-fired power. And that has been the beating heart of the successful defence of permissions for projects that either will need a lot of energy or projects that will produce that energy using gas. And we've seen that already in proceedings we've been involved in. And that is a more transparent and defensible approach to the climate obligations issue where a State says honestly and directly to its citizens, these projects matter for all of you.

[13:31 – 14.30]

They have environmental benefits for all of us and we therefore give them special status rather than blinding ourselves or putting on blinkers because I think carving the exception introduces a hazard. It introduces a real temptation and maybe even more than that for environmental defenders to question the validity of projects that have relied upon it. And that's an unfortunate set of circumstances to bring about where the issue of principle is now worth litigating unusually and uniquely in the context of critical infrastructure projects. And perhaps over time when we reflect on on the success of that particular tool that the better solution is to have the Climate Action Plan identify and respond to critical infrastructure projects and set the ambition within that Climate Action Plan too.

[14:30 – 15:05]

When you look at section 7 and the disapplication of section 15 on the one hand and then on the other hand you look at section 2 of the Act and for the benefit of our listeners again what section 2 of the Act says is nothing in this Act shall affect the existing or future obligations of the State in relation to EU law. Now as you know our climate obligations derive in large part from EU law. How do you reconcile the disapplication of section 15 in section 7 with what the Act provides in section 2?

[15:05 – 15.53]

Well, the Act giveth and it taketh away. Exactly. It makes sense that the Critical Infrastructure Act is a short piece of legislation with one goal - to change the sort priority order in the minds of all public actors when interfacing with a project that’s been designated. It doesn't suspend or bypass our European law obligations or international obligations expressed through European law. So, the United Nations Framework Convention on Climate Change, the Aarhus Convention, these obligations as expressed through European law continue to bind the State properly so and this legislation says we respect that and it ensures, by stating that, that there can't be legal complaint about the legislation for incompatibility with European law.

[15:53 – 16.47]

So it's a really useful cordon sanitaire defence against that kind of complaint and I have to respect that. I think that's very sensible drafting. But you're right. When it comes to climate, there's a hook in each of those instruments and how Europe has expressed them in a way that does continue to bind and apply in Ireland. That means you don't have to be too creative to identify climate obligations that bite through those methods. And so you don't need the Climate Acts to make a climate point. Now, the Climate Acts used novel language that inspired one judgment to describe it with particular careful words that ensured it was probably one of the most unique obligations in the State.

16:47 – 17:18]

Our Supreme Court says different and in that respect maybe we are more relaxed about it than we had been during the last year. So is it strictly necessary to disapply? Probably not. Would it be better for the Climate Action Plan to list these worthy projects? Definitely yes. Will European law continue to provide a fertile ground for climate-based argument? Of course it will.

[17:18 – 17.53]

If there was one takeaway from the Critical Infrastructure Act, what would hat be? The tone is set. Ireland is open for business. It's part of a suite of commitments that I think finds best expression in the National Development Plan Revision that shows the projects that have been identified for public funding, a commitment about public funding and this legislation ensuring that those get the speed boost through decision-making that they deserve and need that the entire of the State should want to support and I think that's a great thing.

[17:53]

Many thanks Brendan, your insights were very interesting. It was lovely chatting with you. Thank you very much. Thank you for listening to MCF horizons. For more insights and updates, visit mccannfitzgerald.com and don't forget to subscribe to stay up-to-date with future episodes.