7 minute read
The Future of Constitutionally Protected Environmental Rights by Kyle Egan
By Kyle Egan, JF Law
Advertisement
George Orwell claimed that when a phrase suffers from overuse, it loses its effectiveness. Such a claim could be made against the use of ‘landmark judgement’ by law students, who try with conviction to make even the most routine of judgements appear ground-breaking when completing an assignment. But when such a judgment comes around, a truly landmark judgment, it is imperative that its principles are scrutinised and its potential consequences considered. Friends of the Irish Environment v The Government of Ireland is one such case. In his judgment, the Chief Justice deemed the National Mitigation Plan insufficiently specific to comply with the Climate Action and Low Carbon Development Act 2015. This plan was intended to serve as Ireland’s Roadmap to an environmentally sustainable economy by 2050. By striking down this plan, the Supreme Court is forcing the government to show greater commitment in the struggle against climate change. On the other hand, the Chief Justice rejected that the right to a healthy environment exists as a derived right, struggling to see where the boundaries of such a right would lie. This may appear to be a major setback for the protection of environmental rights, but the Court system is only one battleground in the fight for a healthy environment. By rejecting its existence as a derived right, Chief Justice Clarke opened the door for a constitutional amendment, bringing the fight for a healthy environment to the ballot box. In this article, I will consider the steps which need to be taken in order to vindicate these rights, from mobilising the student body prior to the referendum, up to the point when they are invoked before the Courts.
The First Step: Referendum
A referendum seeking to amend the Constitution to explicitly mention the right to a healthy environment would ensure the most comprehensive and secure protection of environmental rights possible. Such a move would be unprecedented in the common law world. As it stands, India is the only common law country that guarantees, on a Constitutional level, a right ‘to protect and improve’ the environment. In 2015, Ireland became the first sovereign nation to legalize same-sex marriage by popular vote. While other nations achieved the same result by legislation or through Court judgements, our referendum had a major advantage. Backed by all major parties, and 62.07 per cent of voters, it was made astoundingly clear that Ireland valued inclusion and equality. Marriage equality and environmental protections may be two distinct issues, and to see them brought together in one article is peculiar. However, this advantage of referenda remains the same. By bringing environmental protections to a popular vote, all political parties would be expected to show their cards. The seeds have been sown by the thousands of students who marched in the ‘Fridays For Future’ strikes during 2019. These strikes illustrated just how important environmental rights are to Irish students. It is students who will demand the referendum be called and while much work is needed to ensure a referendum guaranteeing environmental protections is passed, Ireland’s student body has shown that they are up for this task.
Post-Referendum: How do we vindicate these new rights? While a referendum may grant Constitutional status to environmental rights, assuming it is passed, the question of how they would be vindicated remains. The Irish Courts’ protection of socio-economic rights to date has been lacklustre. The judiciary’s reluctance to interfere in areas outside of their expertise, giving discretion to the legislature in areas such as taxation, ought to be admired. An overzealous judiciary would bring the Irish government to a grinding halt. Thus, a cautious judiciary is certainly a virtue. That being said, there comes a time when the Judiciary ought to intercede to vindicate the rights protected by the Constitution. Judge Kelly recognised this in D.B v Minister for Justice and T.D v Minister for Education when he granted injunctions requiring the State to build high support units for young people at high risk of suicide. However, with the Supreme Court subsequently
Page 35 Ireland overturning Judge Kelly’s injunctions, it brought to a halt the potential for socio-economic rights to be vindicated by the courts. If constitutional protections of environmental rights are to have any practical benefit, a new outlook on socio-economic rights will be needed. Transplanting a model of vindication has its risks, however this should not stop us from seeking inspiration from other nations who vindicate socio-economic rights.
South Africa’s simple two-stage test has the most potential for application in Ireland. According to the test, the courts will only require the Government to take action in cases involving socio-economic rights, where the Court holds that they have not taken any steps to realize the rights, or where the Court finds the measures undertaken by the government until then have been unreasonable. While measures which are considered ‘unreasonable’ may appear to be a hopelessly vague part of the test, the Court also defined what unreasonable ought to be construed as in different circumstances. For example, in the case of TD v Minister for Education mentioned above, the government took the very basic step of planning to build high support units. However, that was the extent of the government’s actions on this issue. Under the South African model, Judge Kelly would likely have been correct to grant an injunction ordering the State to build these units. How this test would apply to environmental rights depends entirely on what exactly these protections cover however. As such, it is important that we do not approach the issue of vindication with blinkered-vision, and remain open to new and innovative constitutional methods.
Of all the steps required to ensure environmental rights are vindicated in Ireland, identifying the rights most urgently needing protection is the most crucial step. Assuming that a referendum for inserting the right to a healthy environment into the Constitution has been passed, there are two means in which these rights would be recognised. In the short-term, legislation which enumerates the protections guaranteed under the right will provide certainty, and lay a solid foundation for the right to a healthy environment. There would be little doubt as to whether certain practices would be prohibited under the right to a healthy environment, assuming the existence of well-constructed legislation. The disadvantage of this approach is how static legislation is. Technology often develops quicker than legislatures can adopt. If we consider areas where the environment interacts with human activities and how much they have changed in even a single generation, the problem becomes apparent. Transport is a prime example. The modes of transport used by the average person today were mere fantasy only decades ago. In order to counter this defect of a purely legislative approach, the courts must be willing to recognise derived rights in this area. The Chief Justice in the FIE case expressed willingness to recognise ‘piecemeal’ environmental rights under the rights to life and to dignity. Unfortunately, the Chief Justice wasn’t clear on what exactly constitutes a piecemeal right. It can only be assumed he intended for incredibly specific measures to be recognised as derived rights. Nonetheless, with the right to a healthy environment existing as a parent right, it would ensure that the courts can be guided by the latest research to guarantee that environmental protections match and adapt to the technology of the day.
At first glance, the path ahead seems clear. A referendum on the issue followed quickly by legislation could see monumental changes in environmental protections in a short space of time. But the difficult battles must be fought prior to this. It has been made exceptionally clear that the longer we delay combating climate change, the more dire the consequences. While all generations are affected by climate change, the students of today are facing a catastrophe if action is not taken immediately. It is students who will inherit the consequences of those currently in power. The Covid-19 pandemic may prevent rallies of the magnitude seen in 2019, but if any group can innovate, and find new ways to bring the climate change conversation to the table in the current situation, it is the student body.
“We have to start moving beyond targets, we have to start moving beyond aspiration, we have to start moving beyond statements of hope, and deliver signs of action.” -Jacinda Ardern
“All human beings are born free and equal in dignity and rights. Yet, when it comes to the effects of climate change, there has been nothing but chronic injustice and the corrosion of human rights.” -Mary Robinson, Climate Justice
Ireland “Climate change is the greatest threat to human rights in the twenty-first century.” -Mary Robinson
