12. —(1) The Gas Act, 1976, is amended, on the appointed day, by—

(a) the insertion after section 39 of the following section:

“39A.—(1) Subject to section 12(2) of the Gas (Interim) (Regulation) Act, 2002, a person, including the Board, shall not, without the consent of the Commission, construct a pipeline, other than an upstream pipeline, on, over or under the surface of land or of any sea bed that is situate in the territorial seas of the State or a designated area.

(2) The Commission may revoke a consent given by it under subsection (1) of this section but such revocation shall not prejudice the validity of anything done previously pursuant to and in accordance with the consent.

(3) Subject to subsection (5) of this section, any guidelines published by the Minister before the day appointed to be the appointed day under section 3 of the Gas (Interim) (Regulation) Act, 2002, are the procedures to be followed in giving consents under subsection (1) of this section.

(4) Where the Commission gives its consent under subsection (1) of this section, it shall attach to the consent such conditions, with respect to the construction of the relevant pipeline as it considers appropriate, including conditions analogous to all or any of the requirements of subsection (6) of this section.

(5) Without prejudice to the generality of subsection (4) of this section, the Commission may—

(a) attach to a consent given under subsection (1) of this section for the construction by a person of a pipeline, a condition requiring to be observed, as regards the pipeline, specific codes and standards of safety and efficiency regarding the construction of pipelines, and

(b) by regulations, set out the procedures in relation to the giving of a consent under subsection (1) of this section.

(6) In case the holder of a consent given under subsection (1) of this section constructs a pipeline the holder shall take all reasonable measures to protect the natural environment and to avoid injuring the amenities of the area and, in particular, and without prejudice to the generality of the foregoing, the holder shall while constructing the pipeline take all reasonable steps to prevent injury to any building, site, flora, fauna, feature or other thing which is of particular architectural, historic, archaeological, geological or natural interest, and when selecting the route for the pipeline the holder shall have regard to any representations made to the holder as regards the route of such pipeline by any local authority within whose functional area a proposed route, or any part of such a route would, if the pipeline were constructed, be situate, or any of the following on, in or over whose land such route or part would in such circumstances be situate, namely—

(a) a harbour authority (within the meaning of the Harbours Act, 1946),

(b) a company (within the meaning of the Harbours Act, 1996),

(c) the Electricity Supply Board or any other electricity undertaker,

(d) Córas Iompair Éireann or any other railway undertaker, or

(e) a natural gas undertaking (other than the holder).

(7) Where the Commission attaches, under subsection (4) of this section, conditions to a consent given under subsection (1) of this section, the person constructing the relevant pipeline shall comply with those conditions.”,

(b) the substitution for section 40 (inserted by section 19 of the Act of 2000) of the following section—

“40.—(1) A person, including the Board, shall not, without the consent of the Minister for the Marine and Natural Resources, construct or operate an upstream pipeline on, over or under the surface of land or of any sea bed that is situate in the territorial seas of the State or a designated area.

(2) The Minister for the Marine and Natural Resources may revoke a consent given by him or her under subsection (1) of this section but such revocation shall not prejudice the validity of anything done previously pursuant to and in accordance with the consent.

(3) Where the Minister for the Marine and Natural Resources gives his or her consent under subsection (1) of this section, he or she shall attach to the consent such conditions, with respect to the construction or operation of the relevant pipeline as he or she considers appropriate, including conditions analogous to all or any of the requirements of subsection (4) of this section.

(4) In case the holder of a consent given under subsection (1) of this section constructs an upstream pipeline the holder shall take all reasonable measures to protect the natural environment and to avoid injuring the amenities of the area and, in particular, and without prejudice to the generality of the foregoing, the holder shall while constructing the upstream pipeline take all reasonable steps to prevent injury to any building, site, flora, fauna, feature or other thing which is of particular architectural, historic, archaeological, geological or natural interest, and when selecting the route for the upstream pipeline the holder shall have regard to any representations made to the holder as regards the route of such upstream pipeline by any local authority within whose functional area a proposed route, or any part of such a route would, if the upstream pipeline were constructed, be situate, or any of the following on, in or over whose land such route or part would in such circumstances be situate, namely—

(a) a harbour authority (within the meaning of the Harbours Act, 1946),

(b) a company (within the meaning of the Harbours Act, 1996),

(c) the Electricity Supply Board or any other electricity undertaker,

(d) Córas Iompair Éireann or any other railway undertaker, or

(e) a natural gas undertaking (other than the holder).

(5) Where the Minister for the Marine and Natural Resources attaches, under subsection (3) of this section, conditions to a consent given under subsection (1) of this section, the person constructing or operating the relevant pipeline shall comply with those conditions.”,

and

(c) in section 40A (inserted by Article 20 of the European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349 of 1989))—

(i) in subsection (1), by the substitution for paragraph (a) (inserted by section 19(2) of the Act of 2000) by the following paragraph:

“(a) A statement of the likely effects on the environment (hereafter in this section referred to as an ‘environmental impact statement’) of a proposed pipeline of a class for the time being specified under Article 24 of the European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349 of 1989), or under any provision amending or replacing the said Article 24 shall be submitted with, or within a reasonable time after the making of, an application to—

(i) the Commission by a person, including the Board, for its consent under section 39A(1) of this Act, in relation to the proposed construction of a pipeline other than an upstream pipeline, or

(ii) the Minister for the Marine and Natural Resources by a person, including the Board, for his or her consent under section 40(1), in relation to the proposed construction of an upstream pipeline.”,

and

(ii) other than in subsection (1)(a) (inserted by this paragraph), by the substitution for “the Minister” of “the Commission or the Minister for the Marine and Natural Resources, as the case may be,” in each place where it occurs,

(iii) by the substitution for subsection (7) of the following subsection:

“(7) (a) Where the Minister considers that a proposed pipeline, which is the subject of an environmental impact statement in accordance with a requirement of or under subsection (1) of this section, would be likely to have significant effects on the environment in another Member State of the European Communities or a state which is party to the Transboundary Convention or where the other state concerned considers that the said pipeline would be likely to have the said effects and so requests, he or she shall, as soon as possible, send to that state—

(i) a description of the proposed pipeline and any available information on its possible effects on the environment in that state, and

(ii) information on the nature of the decision which may be taken,

and shall give that state a reasonable time to indicate whether it wishes to furnish views on the said effects.

(b) Where a Member State of the European Communities or a state which is party to the Transboundary Convention which has received information pursuant to paragraph (a) of this subsection indicates that it wishes to furnish views on the likely effects on the environment of the proposed pipeline, the Minister shall, if he or she has not already done so, send to that state—

(i) a copy of the environmental impact statement, and

(ii) relevant information about the procedure for making a decision on the application or notice concerned.

(c) The Minister shall enter into consultations with a Member State of the European Communities or a state which is party to the Transboundary Convention to which information was sent pursuant to paragraph (b) of this subsection regarding the potential effects of the proposed pipeline on the environment in that state and the measures envisaged to reduce or eliminate such effects.

(d) The Minister shall notify a Member State of the European Communities or a state which is party to the Transboundary Convention to which information was sent pursuant to paragraph (b) of this subsection of his or her decision on the application or notice concerned.

(e) In this section ‘Transboundary Convention’ means the United Nations Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context done at Espoo, Finland on 25 February, 1991.”,

and

(iv) in subsection (9), by the substitution for “section 8(9) of this Act” of “section 39A(6) or 40(4) of this Act”.

(2) F9[Subject to section 39B(2) of the Gas Act 1976, the Commission may], from the appointed day, specify by regulations—

(a) the pipelines or classes of pipelines to which section 39A(1) (inserted by this section) of the Gas Act, 1976, shall not apply in relation to the construction of pipelines or those classes of pipelines, and

(b) such conditions as the Commission deems desirable in relation to the construction of the pipelines or classes of pipelines to which the regulations relate.

(3) F10[(a)The Minister—

 (i) shall specify by regulations the criteria in accordance with which an application for a consent given under section 39A(1) of the Gas Act 1976, may be determined by the Commission; and

(ii) shall publish the criteria with which an application for a consent given under section 40 (1) of the Gas Act 1976 may be determined.]

(b)   The criteria specified by the Minister under subsection (3)(a) may relate to, any or all of the following:

(i) security of supply,

(ii) the safety and security of the natural gas system,

(iii) the qualifications of an applicant, including the technical and financial qualifications of the applicant, and

(iv) any other criteria specified under subsection (3)(a).

(4) Where, from the appointed day, the Commission determines that the capacity of existing or proposed distribution or transmission pipelines in a particular geographical area, as specified by the Commission, represents adequate provision for reasonable expectation of demand, it may refuse to give its consent under section 39A(1) of the Gas Act, 1976, to the construction of any new distribution or transmission pipeline in that particular area.

(5) (a) Without prejudice to the procedures for the giving of consents for the construction of pipelines set out in regulations made under section 39A(5) (inserted by this section) of the Gas Act, 1976, the Commission shall, where it considers it appropriate, or at the request of the Minister, conduct a competitive process for the purpose of selecting an applicant from whom an application for consent shall be considered for the construction of a pipeline in a particular area or for a particular purpose.

(b) The Commission may make regulations relating to the conduct of such a competitive process, and such regulations may include—

(i) the period of time allowed for the submission of expressions of interest by prospective applicants,

(ii) the criteria for the pre-qualification of applicants,

(iii) the period of time allowed for the submission of applications,

(iv) the criteria by which applications will be adjudicated,

(v) the terms and conditions that may be applied in relation to the successful applicant,

(vi) the lodging of a bond (if any) by the successful applicant, and

(vii) any other matter which the Commission considers appropriate and necessary for the holding of a competitive process under paragraph (a).

(c) Before holding a competitive process under paragraph (a), the Commission shall undertake such preliminary examinations, as it considers appropriate or the Minister requests, including the carrying out of economic and technical feasibility studies of a proposed pipeline or pipeline routes.

(d) Where a competitive process is conducted under this subsection, the Commission shall not be obliged to select an applicant where it considers that no applicant is suitable.

(6) In this section “proposed distribution or transmission” in relation to a pipeline, means a pipeline, whether under construction or not, for which an application for consent has been made to the Commission under section 39A(1) of the Gas Act, 1976, and where the applicant has been certified by the Commission as being a bona fide applicant in accordance with the procedures for the giving of consents for the construction of pipelines set out in regulations made under section 39A(5) (inserted by this section) of the Gas Act, 1976.