The recent 2017, Irish High Court judgment on environmental rights has been described as ‘historic’ as it declared that the Irish Constitution protects an un-enumerated personal constitutional ‘right to an environment that is consistent with the human dignity and well-being of citizens at large’ . The case concerned a legal challenge brought by Friends of the Irish Environment (FIE), a group of environmental activists, to the decision of Fingal County Council to grant a renewal of planning permission for the development of an additional runway at Dublin Airport. While FIE’s argument that the Council had acted unlawfully by not allowing for public consultation in relation to the decision to extend the planning permission was ultimately rejected by the Irish High Court, their submission regarding the existence of a ‘right to an environment’ found favour, as it raised ‘profound constitutional issues that affect the entire population’ .
In a careful and considered judgment, Mr Justice Barrett noted the scientific, philosophical, and religious consensus on the importance of protecting the environment for the survival of humankind. He also recognised that a healthy environment is a necessary pre-condition to the enjoyment of all human rights; ‘It is an indispensable existential right that is enjoyed universally, yet which is vested personally as a right that presents and can be seen always to have presented, and to enjoy protection, under Art. 40.3.1̊ of the Constitution’ .
He said the exact scope and content of the right were to be determined in future cases and rejected suggestions made by counsel for the State that the right was ‘utopian’ in character, pointing out the multitude of difficulties involved in adjudicating on other constitutional rights, such as freedom of expression, which did not preclude them from being constitutionally protected.
This decision has the potential to be of major significance on several fronts. It could prove to be a powerful tool in the arsenal of environmental activists, campaigners, and litigants in the quest for environmental justice, especially, if in future it is interpreted to include positive duties on the state to take measures to guard against threats to the environment. This is especially salient given Ireland’s poor performance when it comes to reducing greenhouse gas emissions. Recent figures compiled by the Environmental Protection Agency show that the level of Ireland’s emissions rose by 3.5% last year to an estimated 61.19 million tonnes.
Potentially, Ireland’s failure to meet its emissions reduction targets by 2020 as required under EU law, and its attempts to find ‘loopholes’ in its obligations under the Paris Climate Agreement, could amount to a violation of the ‘right to an environment’ given the serious threat that climate change entails. If so, the ability of citizens to hold the State to account for its environmental protection record will be greatly enhanced.
However, the implications of this decision extend beyond just the environment. It may well mark the beginning of a jurisprudential shift in Irish Constitutional law, as this is the first case to recognise an “unenumerated right” in over twenty years.
Although the Irish Constitution expressly protects a series of textually enumerated civil and political rights in Article 40.3.2: The state shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. The use of the words ‘in particular’ here (implying the existence of other rights), have in the past provided a textual hook for judges to identify rights not specifically mentioned, such as bodily integrity and privacy. This ‘unenumerated rights’ doctrine reached its zenith in the 1960s and 1970s, but was gradually abandoned thereafter by a more conservative generation of judges. Thus, Mr Justice Barrett’s decision recognising a ‘right to an environment’ that is compatible with human dignity, may be a sign that the well-spring of unenumerated rights in Article 40.3.2 has not run completely dry, perhaps offering some hope for advocates of judicial recognition of socio-economic rights.
Ultimately, climate change represents nothing less than an existential crisis for humanity. If this crisis is to be tackled, it will require, inter alia, immediate and concerted state action. The recent decision of the Irish High Court could provide the much-needed impetus for Ireland to step up to the plate and play its part in confronting the ‘planetary emergency’ that we all face.