A power generating company has been given permission to bring a High Court challenge over a decision by grid manager EirGrid to refuse its application to participate in a forthcoming auction that will determine who can sell electricity to the grid.
Kilshane Energy Ltd, of Swords, Co Dublin, seeks to quash a decision by EirGrid plc to refuse to qualify the firm for participation in the auction which is due to take place between November 21st and 28th. It also wants the court to order that Kilshane is entitled to qualify.
Under the system whereby private generating companies like Kilshane sell the power they produce to the grid, an online auction, involving sealed bids, is held four years in advance.
Those who qualify for the auction are chosen by the grid manager, which in the Republic of Ireland is EirGrid.
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EirGrid, along with its Northern Ireland counterpart SONI (System Operator for NI), administer what is known as the “capacity market code” which makes provision for arrangements to secure generation adequacy and capacity to meet the demands of consumers.
Last May, under the code, EirGrid and SONI announced that a capacity auction was to be held for 2028/29 this month and invited power firms like Kilshane to apply to participate.
Kilshane says it did so, submitting two proposed generating gas turbine projects of 299 megawatts at Huntstown in north Dublin.
In August, Kilshane says, it was told by EirGrid that it had not qualified for the auction on grounds the proposed projects were not feasible either technically or within the four year time frame in which they would have to be built.
Kilshane sought a review of the decision but in September, EirGrid stood by its decision.
Kilshane then raised a notice of dispute with an independent body set up to deal with such disputes, called the Capacity Market Dispute Resolution Board.
That board sided with EirGrid and Kilshane then sought to bring High Court proceedings.
On Wednesday, Mr Justice Micheál P O’Higgins granted Kilshane leave to seek judicial review against EirGrid and against the Commission for Regulation of Utilities (CRU) which approved the EirGrid decision.
The application was made by Anthony McBride SC, with Cillian Bracken BL, instructed by Dermot McNamara & Co Solicitors, who said counsel for both defendants had appeared in court in the event that a stay or an injunction was being applied for. Otherwise the application was being made in the normal one side only represented (ex parte) basis.
Mr McBride said his client would seek leave to apply for an injunction but whether it went ahead would be dependent on what the defendants had to say once they had been supplied with the papers in the leave to bring judicial review proceedings.
Mr McBride, in his application, said EirGrid had in essence argued that Kilshane could not complete the Huntstown projects within four years, counsel said.
It did not accept Kilshane could provide a 400KW connection cable on a 20 mile route from Huntstown to an electricity substation at Woodland, near Batterstown in Co Meath, within the required time frame.
However, Mr McBride said, EirGrid was comparing itself, as a statutory company required for instance to put contracts out to public tender, with Kilshane which is a private operator and not subject to this and other restrictions.
Kilshane’s plan is to build the connector to Woodland itself by undergrounding it on public roads and so it did not involve having to deal with private landowners, among other issues, he said. Kilshane had provided a detailed plan from an international industry leader in this area showing it could be done.
Mr Justice O’Higgins said he was satisfied to grant Kilshane leave to bring the proceedings as it had met the threshold for an arguable case.
He said the matter could return to court later this month or sooner if an application is required, following consultations with the defendants, to seek an injunction staying the November 21 auction.
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