Environmental Human Rights Litigation in Ireland

by | Oct 18, 2019

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About Jamie McLoughlin

Jamie McLoughlin graduated from the Oxford BCL with distinction in 2018. He also holds an undergraduate (1st class) BCL degree from University College Dublin and is planning in the near future to undertake a PhD focusing on the intersection between Irish constitutional law and international human rights law.

Citations


Jamie McLoughlin, “Environmental Human Rights Litigation in Ireland”, (OxHRH Blog, October 2019), <https://ohrh.law.ox.ac.uk/environmental-human-rights-litigation-in-ireland/>, [Date of access].

Recently, the Irish High Court handed down judgment in the case of Friends of the Irish Environment v The Government of Ireland and Others or ‘Climate Case Ireland’. The case involved a challenge brought via judicial review proceedings, by Friends of the Irish Environment, an environmental NGO, against the ‘National Mitigation Plan’ adopted by the Irish Government pursuant to the Climate Action and Low Carbon Development Act 2015, on the basis that the plan was ‘wholly inadequate’ in terms of reducing Ireland’s greenhouse gas emissions and confronting the threat posed by climate change to human and constitutional rights.

The case followed on from a decision of the High Court in 2017 in which it was recognised that a ‘right to an environment consistent with human dignity’ is protected by the Irish Constitution, and from similar environmental rights litigation in other jurisdictions, such as the Urgenda case in the Netherlands where the Dutch Court of Appeal found the State’s failure to adopt more ambitious emissions reduction targets to be in breach of its duty of care under Articles 2 and 8 of the European Convention on Human Rights.

Specifically, Friends of the Irish Environment (“FIE”) claimed that the National Mitigation Plan (“NMP”) and the decision to adopt it, were ultra vires the 2015 Act, inter alia, on the ground that it failed to meet the requirements of the Act with regard to reducing emissions.

Furthermore, it was argued that the adoption of a plan which was not calculated to achieve substantial emission reductions in the short or even medium term was inconsistent with the rights to life, bodily integrity, and a healthy environment protected under the Irish Constitution, and incompatible with the State’s duty under the ECHR Act 2003 to act in a Convention compliant manner, i.e. in this case to respect the right to life and the right to private and family life enshrined in Articles 2 and 8 of the ECHR.

These submissions were underpinned by a voluminous amount of scientific evidence which was opened to the Court in order to highlight the grave consequences a failure to take urgent action to reduce emissions – to prevent a 2°C global temperature rise – would have for the exercise of the above-mentioned rights. FIE sought a Court order to have the NMP quashed and revised in accordance with the provisions of the 2015 Act.

In response, the Government counter-argued that the NMP was a policy instrument and as such was not justiciable. It also queried FIE’s standing to make human rights claims given its status as a company and contended that the Court was precluded from intervening in the case as under the separation of powers principle, the Court was not entitled to dictate to the executive in matters of policy.

MacGrath J ultimately ruled in favour of the Government, denying all the reliefs sought. However, he decided the case solely on the issue of whether the NMP was ultra vires the 2015 Act, thereby avoiding definitive resolution of the broader rights questions raised.  He concluded that the plan was intra vires the Act because fundamentally it complied with the Act’s requirements to set out policy measures aimed at reducing emissions. FIE’s complaint was these measures did not do enough, quickly enough. But, given the broad aspirational policy language in which the plan and the statutory provisions under which it was adopted were couched, the Government was entitled to a considerable measure of discretion with regard to the choices it made.

Therefore, since the plan was in conformity with the Act and because the Act itself (which enjoyed the presumption of constitutionality) had not been challenged, the judge reasoned that FIE could not maintain an independent free-standing challenge to the constitutionality or ECHR compatibility of the National Mitigation Plan.

While the outcome of the case is obviously disappointing from FIE’s perspective, all is not yet lost. The decision is appealable, and crucially, the High Court did not reject the proposition that there is a constitutional right to an environment consistent with human dignity. This leaves the potential for the right to be invoked in a future case where the courts might be persuaded to intervene.

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