"The Government have clearly sent the message to Shell, ‘you can do whatever you want’. Fortunately due to protest, the refinery remains unconnected to the gas field. If, as Shell planned, gas had been flowing by now, we would potentially all be dealing with a gas leak and explosion.”
[Ed. Note- This is the statement Micheál Ó Seighin prepared for the High Court yesterday as his rationale for refusing to abide by an injunction aimed stopping local people and landowners from getting in the way of Shell Oil's construction of a controversial 'offshore' pipeline on land at Rossport Co. Mayo. He extemporised and ad libbed from this prepared statement in the court]
To whom it concerns:-I am Micheál Ó Seighin, of Ceathrú Thaidhg, Béal an Átha, Co. Mhaigh Eo, originally from Gleann Bruachán, Co. Luimní, and resident in this area since first coming to Ros Dumhach in 1962, where I taught for 40 years before retiring after a coronary bypass. I have a strong attachment to this area and its' people - my family's people - which, however, is not the basis for my present stand.I am sixty five years of age and do not lightly choose to go to jail, a choice that has been forced upon me. My previous recorded conflicts with the law are: - in 1965 I was summoned to court and fined £2.00 for not having a parking light on my car outside Healy's Hall in Glenamoy: the Sergeant of the day was a native of my home parish and had been taught by my father;- in 1968 I was fined 10 shillings for speeding through Charleville (Rath Luirc) on March 18th - the Gardai in Ballina paid the fine as it was not worth their while collecting it;- during the Christmas round up of (I think) 1999 the then Sergeant, now Chief Inspector McNamara, arrested me for being under the influence while being in control of a vehicle: when the blood sample was returned, my blood alcohol level was 50 mgs. No further legal action was then attempted.All in all, I am afraid, a rather miserable legal record, a poor apprenticeship for my pending exalted criminal status!I believe and know that I have no choice but to oppose the implementation of this injunction and also, that I have a lawful excuse for so doing, to prevent a greater harm that the injunction facilitates.The Court in earlier hearings said by injunction that the pipeline could be installed, although the Minister insists that necessary consent has not yet been given. Because of some apparent reservations, the Court declared that were this proposed pipeline found in full hearing to be dangerous the judge would order its removal and the restoration of the ground. This the learned judge may do but his proposed order cannot be implemented and so his decision, if it arises, is an exercise in futility, for this ground, reclaimed bog, once treated in this way, cannot be restored to near its former usefulness. In fact the activity of heavy machinery, the spread of peat over the entire ground, both on and outside the way-leave, the movement of the lorries of imported fill, the construction activity necessitated by the hauling and welding and manipulation of the gas pipeline,the umbilicals, the waste water etc pipe must inevitably so compact and dislocate this sensitive surface as to render it unfit for agriculture. In support of what I know to be true, is the following document prepared by Séamus Ó Mongáin of Teagasc (Belmullet Office) in 2,000, for we are well aware that there is commonly an instinctive prejudice against the accuracy of the expertise of ordinary practitioners like us in favour of the officially certified expert. I hold, therefore, that the Court in granting this injunction, did not give credence to the fact that the interim solution proposed would create a new and permanent physical reality that would effectively destroy the utility of these holdings and annul generations of sustainable husbandry. In other words, once this rooting about to install the pipes is done, the land is useless. There are further cultural issues in question - cultural in the proper sense of the artifacts and strategies communities and individuals used and invented to enhance their survival by reaching an organic compromise with what was always a difficult environment - but as this is a legal forum I will mention but one. This land system, especially the highly skilled drainage, is human archaeology at its most basic. For this painstaking work will never be repeated - the economic or social conditions for its repetition do not and are never likely to again exist: the existing economic climate is more benign.I hold that the Court, in authorising the destruction of what is a national monument - a monument to the survivability of a people, a monument still very much a part of the economic survival and way of life of these farming families and a record of techniques and strategies of the Irish people - acted without expert witness, without due care, in advance of a full hearing, and that the decision is manifestly unsafe. Monetary compensation can not repair the damage that such work, protected by this injunction, must cause. Nor can it restore to its function this basic economic asset. Therefore, I hold that the balance of loss in this case is wrongly set: the loss in time and markets to Shell is minor in the balance of the asset and turnover base of this major economy and can hardly feature in its profit statement. The loss to the landowners on the other hand, is permanent, and not repairable, given the minute size of the holdings and the proportionate damage thereby inflicted. It can hardly be argued that the 4 year delay in the implementation of this Corrib project has seriously impacted on the share values of Statoil, Shell or Marathon. The second reason why I am forced to oppose the encroachment by the Corrib partners, Shell, Statoil and Marathon, onto the land of farmers here under injunction is the major issue, safety of residents, of farmers and of visitors or of children playing or people gathering cockles: or, indeed, cars driving along the road in close proximity, or at one spot, driving over this rare bird of a pipeline. Shell and its predecessor EEI, have never recognised the existence of residents who do not have land through which the pipeline is to be pushed: the house of one permanent resident is 70 metres from the proposed site of the pipeline and hardly 25 metres from where he turns off the road into his yard. He is not alone in this. As the issue of the safety of the residents and others, when the pipeline is finally in operation is the defining issue, and to be adjudicated upon in a full hearing, it is surely putting the cart firmly before the horse facilitating its installation, unless by doing so the Court is implicitly accepting that the project in its present form will be facilitated. The Senior Inspector of An Bord Pleanála in his report on the terminal part of this project, drew attention to the effect of project splitting on the presentation of this project. Project splitting is fundamental to the strategy of the developers: get one step done or seemingly done and use this to legitimise another more doubtful step. The Inspector made it clear that such a strategy must not be allowed to prosper, if the planning process is to maintain any credibility. One notes in particular that, in the case of an accident, evacuation of this area or access for emergency services is severely constricted.We do not question the design of this or any pipeline. WE do not doubt the skill or bona fides of the designers or of the engineers who install or the technicians who fabricate the pipeline. Every pipeline is designed to function properly and not to fail, but perfection is a quality of the Divinity not of pipelines. We believe that no pipeline is designed to fail, to rupture or to leak, and therefore look askance at the implication inherent in the suggestion that this planned pipe is more safe than any other, which I take is to impugn the uberissima fides of the fabricators of other pipelines. For example the designers of the Shell operated pipe near Brussels that burst, engulfing a wide area and killing 21 people on July 30th last year, 2004. Or the fabricators of the pipeline in Carlsbad, New Mexico, that blew up in 2,000 killing by incineration a family of 12 picnicking in the desert: in that instance they were killed 675 feet from the rupture of a 45 BAR pipeline. Or the dozens of other publicly recorded pipeline failures, some fatal, some merely destructive. WE do not believe that negligence on such a necessarily wide scale exists in this truly global industry. Rather, we know that pipelines fracture or leak - see the selection enclosed: no one is or should be jailed or executed for it: but it happens. (For the benefit of the court I refer it to a selection of such accidents on the public record here recorded.)There is nothing exceptional in pipeline failures - they arepar for the course. This proposed pipeline, however, is exceptional. Because it is exceptional the potential for being misled is ever-present. For example, I am told that the learned judge at an earlier hearing, in the process of deciding to allow Shell this injunction, expressed the opinion that we walk over or around such Bord Gáis pipelines every day. Mo léan, nach siúlann. Were this the case, we five would not be to-day occupying the high court in this less than productive way.Cearbhall Ó Dálaigh in Ryan v Attorney General (1965): ''The Act deals with a technical and scientific subject, and must be construed in the light of the scientific and technical knowledge which has been put before the court. These are matters which are not presumed to be within the knowledge of the court.'' Therefore we propose that a decision on this highly technical subject must only be reached on the technical and scientific knowledge put before the court: it is evident, in light of the above comment, that there were serious gaps in the scientific and/or technical knowledge or understanding available to the learned judge in reaching his decision to grant the application for injunction. Therefore we request that where or if such gaps contributed to the decision reached, in our opinion unreliably, that the weakness be remediated. This is not a Bord Gáis pipeline. It is different both in its physical reality as a pipeline and in the load it is proposed
to put through it. It is in legislation called an 'upstream pipeline': the developer sometimes calls it an 'offshore landline' or an 'onshore sealine'.. It has no Maximum Allowable Pressure. It transports untreated unodorised gas (undetectable), acids, lubricants, condensate (a kind of diesel) anti-corrosives, trace elements (assorted heavy metals), water (and possibly biocides?) and is accompanied in the trench by power-lines and a series of umbilicals - small pipes with fluids up to 610 BAR pressure.MNOP 150 BARg. (Max. Normal Operating Pressure) ,Ballinaboy Bridge Terminal EIS Nov 2000. (A recent answer from the PAD suggests that this is the Maximum o.p. - it is not, MOP is 345 BARg.Maximum operating pressure 345 BAR. (QRA Version F, Section 2 Summary - Paragraph 3, p.6). Also 6.1.2, and 22.214.171.124, p.27/58. For both the initial normal operating pressure of 120 BAR as well as the maximum pressure of 345 BAR - QRA)Passes 70 metres from permanently occupied houses: the Code 8010 shows that the minimum distance is required to be 170 metres, even for normal odorised clean gas. (see graf from Code 8010.)The QRA prepared by JPKenny and Allseas also uses the 170 metres minimum distance to determine population density, as is required by the Code 8010 (N.B. A corridor of width 10 times the minimum distance from normally occupied buildings should be used when calculating the population density: this corridor to be positioned with the pipeline in the centre. In the QRA, JPKenny and Allseas have acknowledged this requirement and has quoted the correct corridor width as being 850 metres 'either side' of the pipeline: 170 x 10 = 1,700 metres.)Code (or P.D. as it now is) 8010 has been quoted ad nauseum as the document that is used for this 'upstream pipeline'. It is quoted that this is 'best practice' and it is also suggested that 70 metres separation distance from the nearest residence is 'best practice': in fact it is in direct breach of this same code. It is obvious from the foregoing that the basic requirements of the code are broken by this project.It must be obvious now that the strictures of Ó Dálaigh are very relevant.Justice Denham in Howard v Commissioners of Public Works (1994)'The works used in the statute best declare the intent of the act.' After citing many sources and precedents she concludes ''The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The Court should neither misconstrue words so as to amend defects in the legislation nor legislate to fill gaps left by the legislature.''I offer for the consideration of the learned court the following uncertainties which add to the worry of what is contemplated for this pipeline corridor.''Upstream Pipeline'' means any pipeline operated or constructed as part of a gas production project or used to convey natural gas from one or more such projects to a processing plant or terminal or final coastal landing terminal.'' ''Upstream pipeline'' also called by the developer ''onshore sealine'' (in the QRA) and ''offshore landline'' in the CAO maps.S.I. 428 of 2003: (No 10 of 2002, (Section 16) Regulations 2003) defines ''beach'':- '''Beach' means the point of connection between an upstream pipeline and the natural gas system.'' As the definition of 'natural gas system' in the Act specifically excludes 'upstream pipelines' the court is left with 'beach' situated 9 Km inland, outside the coastal zone, in the middle of a deep bog. Is that what Justice Denham would conclude?With this level of incoherence and ambiguity we hold that the court, in the absence of alternative opinions, should take on board the ''correct conclusion'' of Justice Denham relating to an Act of the Oireachtas, and conclude that any decision located on such uncertain territory must be unsafe, refuse the request to commit for contempt of court and remove this injunction forthwith. We hold that our actions are justified on the basis that such language as we have quoted shows the arbitrary nature of the defining legislation and quote Costello in P.H. v John Murphy & Sons Lt. (1987) ''It must be remembered that the court is construing a constitutional document whose primary purpose in the field of fundamental rights is to protect them from unjust laws and from arbitrary acts committed by State officials.''Finally on the issue of safety. The Minister has stated that the QRA as published (version F) says that the exotic pipeline is safe, and that a person 70 metres from this device would be safe even in the event of a rupture and ignition of the escaped gas. In this matter the Minister is totally misled by his State officials. The QRA never proposes that people are safe within the 70 metres of this pipeline. The QRA proposes that it is not likely that the pipeline will rupture, i.e. that the statistical risk of a rupture is low: this is indeed true - it is no more likely that this upstream pipeline will explode than that the Carlsbad pipeline would explode, or that any of the other unlikely pipelines listed here would explode,but they did. And keep in mind that all the accidents listed here as examples only contain treated gas and are all in the middle range of pressure. Remember also, that the Factor of Safety of many of these pipelines is 0.3 or 0.5 - substantially less than the Factor of Safety designed into this upstream pipeline of 0.72: i.e. it is not designed to be 'safer' or even up to what is expected by the Code 8010, especially where it crosses a road. The QRA states that a pipewall thickness of over 60mm is necessary to bring the pipeline up to the recommended Factor of Safety, a brutal thickness indeed and unmanageable, illustrating further that this project is in the wrong place as the Bord Pleanála Inspector and Technical Consultant pointed out. On the evidence before this court, from impeccable sources, do you, Honourable Judge, still believe that people are safe from this pipeline in the event of a rupture, however unlikely?Let us finally look further at the reality of what happens in the event of a rupture at even 120 BAR:- at a distance of 174 metres from a rupture, a person burns at 8.2 seconds, at 58.7 seconds, 50% of exposed people would be expected to be dead, and 30 seconds later all people exposed would be expected to be dead. Nearer the rupture the statistics would of course be much worse.It is the ongoing effort to mislead engaged in by industry executives and public officials that is really frightening and that in the final analysis leaves us no choice whatsoever but to engage in this action, however distasteful and out of character to us it is. I am a retired teacher: I do not have the resources, onshore or offshore - my cash-lines are severely limited - to hire and pay for legal representation, apart altogether from the difficulty of briefing a non-technical person on the issues involved. We note, however, the comments of Mr. Justice Hardiman in his Judgement of 26th April 2005 on the question of egalité des armes, ''a value which has long been rooted in Irish procedural law.'' Given the inequality of resources available to us and to the combined might of Shell and the Irish Government, acting in concert, there can be no ''circumstances of reasonable equality'' (Steel & Morris v United Kingdom, (European Court of Human Rights) in what is by definition an 'adversarial system.''Finally we note that the refusal of one of the parties to produce documents even though directed to do so by the courts is denying us justice and showing in real time contempt for this court. The Court continues to allow this abuse without danger of penalty, in spite of the vast resources at this party's disposal.