Ireland: Historic Victory for Environmental Campaigners

by | Aug 6, 2020

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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, “Historic victory for environmental campaigners in Climate Case Ireland, (OxHRH Blog, August 2020), <https://ohrh.law.ox.ac.uk/historic-victory-for-environmental-campaigners-in-climate-case-ireland/>, [Date of access].

In a landmark decision, the Irish Supreme Court has unanimously quashed what it termed the Irish Government’s ‘excessively vague’  plan to tackle climate change. The Court held that the plan fell ‘a long way short’ of the specificity required by the Climate Action and Low Carbon Development Act 2015.

The case, brought by the environmental NGO, Friends of the Irish Environment (FIE), concerned the lawfulness of the Government’s National Mitigation Plan (NMP). The NMP was adopted to set out how the National Transition Objective (NTO) of achieving a ‘low carbon, climate-resilient and environmentally sustainable economy’ as required by the 2015 Act, would be realised.

FIE argued that the NMP did not comply with the requirements of the 2015 Act and that the Plan breached their constitutional rights to life and bodily integrity and/or their ECHR rights under Article 2 (life) and Article 8 (private and family life), by failing to provide for measures to reduce greenhouse gas (GHG) emissions by a sufficient amount, and quickly enough, to prevent catastrophic climate change. Based on a previous High Court decision, FIE also asserted that the Constitution protected a ‘right to an environment consistent with human dignity’ and that this right was violated by the Government’s inadequate Plan.

The Government countered by arguing that the Plan was a policy instrument and therefore not justiciable by the courts under the separation of powers principle. Further, it contended that FIE, as a corporate entity, lacked the standing necessary to maintain its claims regarding a breach of constitutional and human rights which it did not personally enjoy.

While the Government succeeded with the justiciability argument in the High Court, the Supreme Court found the NMP justiciable. This was because the 2015 Act had turned the policy into law by requiring that a plan be adopted and that it specify how the NTO would be achieved. Whether or not the Plan did this with adequate precision was thus a question of law, not policy.

The Court went on to hold that the Plan was ultra vires the 2015 Act because it did not adhere to its statutory mandate. In particular, the NMP did not spell out, in sufficient detail, the measures which would deliver on the NTO so as to enable a reasonable and interested observer to know based on the information in the Plan, how the NTO would be achieved by 2050.

The immediate consequence of this ultra vires finding is that the Government will have to devise a new plan covering the entire period to 2050. This will have to be with a greater level of specificity on how it will ensure net-zero GHG emissions by that date. Failure to do so will surely see the Government brought back before the courts.

In relation to the rights-based claims in the case, the Court ruled that FIE (as a corporate body) lacked sufficient standing and that it did not come within any of the recognised exceptions to the general rule under Irish law that a claimant must show that their rights have been personally adversely affected or are in danger of being so affected in order to invoke them.

Moreover, in light of the Plan being found ultra vires, the Court’s comments on the rights questions raised are necessarily obiter dicta, but they contain two points of particular note.

First, the Court deemed the idea of a right to a healthy environment to be ‘superfluous’ insofar as it did not add anything further to the constitutional rights to life and bodily integrity. Even if it did, the Court held that it was excessively vague and ill-defined. Thus, it was not protected as a ‘derived’ right under the Constitution.

Second, notwithstanding the disappointing finding on the right to a healthy environment, the Court signalled that the right to life and other provisions of the Constitution could potentially serve as vehicles for the advancement of environmental claims in appropriate future cases.

As such, not only does this judgment mark another significant victory for the global climate litigation movement, following on from the successful Urgenda case in the Netherlands, it also sows seeds which may bear fruit in future attempts to employ human rights further in the battle against climate breakdown and environmental destruction.

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