A Constitutional Right to a Healthy Environment by Georgia Dillon

A Constitutional Right to a Healthy Environment

By Georgia Dillon SF Law

In 2019, a group of Irish Citizens brought the Irish Government to the High Court. They claimed that government action on climate change was not sufficient and demanded that this be corrected. A year long legal battle ensued, with the Supreme Court ruling in favour of Friends of the Irish Environment, stating that Ireland’s National Mitigation Plan was not adequate in light of its legal obligations. However, this raises the question: did this case limit the extent of constitutional protection accorded to Irish citizens’ environmental rights?

The Case in The High Court

In March 2019, Friends of the Irish Environment, a collective of environmental activists, presented their case in the High Court. They argued that the Irish Government had failed in its legal obligation under the Climate Action and Low Carbon Development Act 2015 to “specify the manner in which it is proposed to achieve the national transition objective,” which involves a shift to a “low carbon, climate resilient and environmentally sustainable economy.” Friends of the Irish Environment submitted that the 2017 National Mitigation Plan did not satisfy this requirement under the 2015 Act. They also contended that the plan violated constitutional and human rights, such as the right to life and the right to bodily integrity. They believed that the Plan had no hope of ensuring that Ireland would achieve the goal of becoming ‘a low-carbon and climate resilient and environmentally sustainable economy by 2050.’

In the High Court, Mr. Justice MacGrath stated that “it is self-evident that climate change is a problem of and for the global community. No one country, particularly that of the size of this State, can tackle the problem on its own. That, however, does not lessen the requirement to do what is necessary to achieve scientifically advised targets.” However, the High Court ruled in favour of the government, finding that “the court should avoid interfering with the exercise of discretion by the legislature or executive when its aim is the pursuit of policy.” Mr. Justice MacGrath believed that the Plan was an initial step in making the country a low-carbon, environmentally sustainable economy by 2050. The Court denied Friends of the Irish Environment’s claim that the government was not fulfilling its legal obligation and did not oblige the State to rethink Ireland’s climate change policy.

The Appeal

Friends of the Irish Environment were granted leave to appeal to the Supreme Court as their case raised a matter of general public and legal importance. They sought an order for judicial review, asking that the courts quash the decision of the High Court to approve the National Mitigation Plan 2017 and an order for the Government to revise the plan in accordance with the standards set out in the Climate Action and Low Carbon Development Act 2015.

The group also argued that the National Mitigation plan was unconstitutional, that it was in breach of the Charter of Fundamental Rights of the European Union, The Kyoto Protocol, the Paris Agreement and Section 3 of the European Convention on Human Rights. The group’s aim was for the Court to recognise an unenumerated right to a healthy environment, to join Portugal and Spain in recognising a constitutional right to a healthy environment.

In the Supreme Court

The Appeal was heard by the Supreme Court in July 2020. The Judgment of Mr. Chief Justice Clarke opened with the unequivocal statement, “Climate change is undoubtedly one of the greatest challenges facing all states. Ireland is no different.” He clarified that the case was not an indicator of the Court’s stance on climate change, but whether the government had breached rights in its handling of this issue through the National Mitigation Plan. The Chief Justice held that the Plan fell short of the standards set in the Climate Act 2015. The Court quashed the plan, leaving a gap in legislation and an opportunity for the government to enact legislation that better aligns with the Climate Act 2015 and its goals.

A Constitutional Right to a Healthy Environment?

However, in this judgment, Mr. Chief Justice Clarke ruled out the existence of a possible unenumerated constitutional right to a healthy environment. The judgment states that “while not ruling out the possibility that constitutional rights and obligations may well be engaged in the environmental field in an appropriate case, I express the view that the asserted right to a healthy environment is… superfluous…[and] I express the view that such a right cannot be derived from the Constitution.”

But what does this mean? Mr. Chief Justice Clarke stated that constitutional rights, such as the right to bodily integrity and the right to life, may be invoked in cases regarding breach of environmental rights. Citizens can state that their existing rights have been breached due to issues arising from climate change, but Irish citizens do not have an explicit right to a healthy environment under our constitution. This came as a surprise for many, who believed that the right could be derived from Article 40.3, the article that recognises personal rights in our constitution. This does not mean, however, that a constitutional right to a healthy environment is out of the question. It is possible that with enough lobbying and pressure, a referendum could be held to establish a right to a healthy environment. Indeed, the French government has recently unveiled plans to hold a referendum to include climate protections in their constitution.

Conclusion

The Climate Case was a landmark judgement in which the Supreme Court ruled that Irish government action on climate change was not sufficient to meet the standards of the Climate Act 2015. This is a significant ruling as it is estimated that we only have until 2030 to reduce emissions by 45 per cent and ensure that global temperatures do not exceed a rise of 1.5 degrees. Any further temperature rise would wreak havoc on our planet and cause sea level rise, intense rainfall in winter and droughts in summer in Ireland.

In the aftermath of the case, the government has shown initiative in introducing the ambitious Climate Action and Low Carbon Development (Amendment) Bill 2020, which commits the government to move towards a climate resilient economy by 2050. The plan strives to show that Ireland can become a climate neutral economy by 2050 whilst creating jobs and sustainable growth. However, as it has not yet passed into legislation, it may be too little too late to alter Ireland’s impact on our climate as the third highest producer of greenhouse gasses in Europe. It is up to the government, and us as Irish citizens, to demand that adequate policy is introduced to save our planet, and soon.

“It is up to the government, and us as Irish citizens, to demand that adequate policy is introduced to save our planet, and soon.”

“You cannot protect the environment unless you empower people, you inform them, and you help them understand that these resources are their own, that they must protect them.” -Wangari Maathai

“A Long Way Short:” Climate Case Ireland and the Role of the Justice System in Environmental Governance

By Cillian Diskin, JS Law and Business

In July 2020, Chief Justice Frank Clarke handed down the unanimous decision in Friends of the Irish Environment CLG v the Government of Ireland , quashing the National Mitigation Plan which was published in 2017 pursuant to the Climate Action and Low Carbon Development Act 2015. Not only was this decision a resounding victory for the environmental NGO, but an indication that the Irish justice system has a role to play in the climate battle. The Supreme Court took a strong stance in strictly applying the specificity requirements imposed by the 2015 Act. It should serve as a momentum boost for future environmental litigation, as well as broader policy objectives as Ireland pursues carbon net zero emissions.

Friends of the Irish Environment (FIE), an environmental NGO, had begun proceedings against the Irish government three years prior, on behalf of over 18,000 petition signatories. Clodagh Daly, who led the group’s campaign, said that the Government had not taken sufficient action to combat climate change. The 2015 Act required the Minister to submit a National Mitigation Plan to the Government once every 5 years, working towards the ultimate goal of net-zero carbon emissions. The Plan produced was criticised by the Climate Change Advisory Council, the Citizens’ Assembly, and members of the public. Particular issue was raised with the fact that, while the Plan projected carbon neutrality by 2050, emissions were envisaged to increase in the short term.

FIE brought proceedings against the Government on the basis that they had acted unlawfully in introducing this particular Plan. They claimed that the Government had failed in its duty to vindicate the rights of the people of Ireland under the Constitution and the European Convention on Human Rights (ECHR). They also claimed that the Plan was ultra vires the legislation, that it did not comply with the obligations established by the 2015 Act. The former was not directly relevant to the judgement, as there were sufficient legal grounds to quash the Plan on the basis of the latter. In regard to the second claim, Clarke CJ considered the justiciability of environmental policy and the specificity requirement of the Plan itself.

Regarding justiciability, the Government had submitted that the Plan was an adoption of policy, referencing Garda Representative Association v Minister for Finance [2010], claiming that the power to set policy on areas of “national interest” and to “disperse funds in accordance with that policy,” is beyond the scope of judicial review. The court rejected this submission as the case concerned a legal requirement set out in legislation. By its nature legislation rarely lacks some policy objective, and therefore the presence of such does not exclude the Plan from judicial review.

The words of the statute itself require the compliant Plan to ‘specify’ how it intends to meet the National Transition Objective (NTO), achieving a competitive, low-carbon, climate-resilient and sustainable economy by 2050. The Act required the Plan to have sufficient information so as to allow the public to reach their own conclusions

Ireland Page 26 on its effectiveness. It follows that the level of specificity required from the Plan be that which allows a reasonable and interested member of the public to know how the government intends to meet the NTO. The Court held that the Plan left too much to further study or investigation, and that it “falls a long way short” of the specificity requirement.

The specificity requirement was a sufficient mechanism to quash the Plan, however, Clarke CJ did also consider the question of standing with regard to FIE mounting a rights-based claim under both the Constitution and the ECHR. On this point he made reference to the judgement of Henchy J in Cahill v Sutton [1972], which established the general rule that a claimant must show that their rights may have been interfered with to be afforded standing. While considering the risk posed by the blurring of the distinction between rights-based litigation and policy issues, Clarke CJ noted that the general rule is one which can be appropriately relaxed. However, it was held that this was not the case for such a relaxation, and that FIE were unable to mount a rights-based claim. Although, the Court pointed out that there seemingly was no practical reason for FIE to bring these proceedings, rather than providing support for individuals to do so. Therefore, the case could still encourage NGOs to bring forward rightsbased claims, but only through an individual with locus standi.

Clarke CJ then went on to consider the existence of an unenumerated, or ‘derived,’ right to a healthy environment. In this case and in Friends of the Irish Environment v Fingal County Council [2017], the High Court had recognised such a right, but the Supreme Court was unwilling to do so. Such a right was deemed impermissibly vague, while it was acknowledged that, in theory, an individual could rely on constitutional rights in the context of environmental law. This is a significant point. The court was not in a position to identify the parameters in which this right could operate. As time goes on, however, the severity of the consequences of climate change, as well as the urgency to achieve net-zero emissions, likely will intensify. This begs the question as to whether future mitigation plans could be scrutinised under constitutional law.

This case demonstrated the stringency with which any future plan in line with the 2015 Act would be reviewed. The Government is unable to rely on the separation of powers argument to avoid litigation around its obligations under the legislation. This will uphold a higher standard of specification and clarity in how Ireland is set to meet the NTO, which is already evident from the 2019 Climate Action Plan, aiming to reduce emissions by an average of 7 per cent per year from 2021 to 2030.

The decision is indicative of the courts ‘adding fuel to the fire;’ contributing to the momentum behind the increasing sophistication of climate policy in Ireland. A large portion of the judgement was concerned with the contextual basis for the claim, which was the science behind, and severity of, climate change. Clarke CJ made reference to the summary of the impact on Ireland produced by the Environmental Protection Agency, which referred to extreme weather, the inundation of coastal land, extreme storm activity, mortalities and morbidity, food-borne disease, skin cancer, and mental illness.

The recognition of this severity, coupled with the core aspects of the decision outlined above, are illustrative of a strong stance taken by the Supreme Court. This stance is not only influential on a national level, but it represented another win for the Climate Litigation Network, which helps activist groups bring proceedings against their national governments. The Network provides experienced legal support internationally, and helped to successfully established political accountability in the Netherlands, in the Urgenda Climate Case. On 3rd February another victory was secured in the Administrative Court of Paris, recognising the legal responsibility of the French State for its contribution to the climate crisis. Co-Founder, Tessa Khan said cases like these have “real impacts.” Daly, of FIE, spoke herself in this regard, saying FIE are “riding on the crest of what we hope is going to be a global wave of climate litigation.”