The Irish Supreme Court Judgment in Climate Case Ireland: 鈥極ne Step Forward and Two Steps Back鈥
By Owen McIntyre -听A recent unanimous decision of the Irish Supreme Court has held the Government to account for failing to specify, as required under the relevant legislation, a credible programme of measures for addressing climate change up until 2050. While the Court鈥檚 robust enforcement of the legislative requirements for addressing climate change is welcome, the decision has also done much to undermine an emerging constitutional right to environment, which may have even greater implications going forward.
Introduction
Since the 1960s the Irish courts have precipitated progressive development of social policy in Ireland where parliament or government has proven unwilling or unable to take the measures required. To do so, the courts have elaborated and relied upon the so-called 鈥榙octrine of unenumerated rights鈥, which focuses on the non-exhaustive wording employed in Article 40.3.2 of the Irish Constitution in order to infer additional unwritten personal rights into the framework of constitutional protections, thereby ensuring that these reflect contemporary societal values. In keeping with the current global trend towards recognition of constitutional environmental rights,[1] the Irish High Court has recently recognised an unenumerated right to environment consistent with human dignity.[2] This decision has raised the prospect of a constitutional mechanism by means of which concerned citizens might compel a reluctant government to adopt serious measures to address Ireland鈥檚 dismal performance on climate. Elaboration and enforcement of such an inferred right would align neatly with developing constitutional practice globally and with Ireland鈥檚 international commitments on addressing climate change.听
On 31 July, the apex Supreme Court[3] acknowledged the justiciability of the Irish government鈥檚 legal obligation to set out serious and credible measures to achieve Ireland鈥檚 鈥榥ational transition objective鈥, as mandated by the 2015 Climate Action and Low Carbon Development Act.听 Section 4 of the 2015 Act required adoption of a National Mitigation Plan which would 鈥榮pecify the manner in which it is proposed to achieve the national transition objective鈥, which involves Ireland鈥檚 transition to a 鈥榣ow carbon, climate resilient and environmentally sustainable economy鈥 by 2050.听 Friends of the Irish Environment (FIE), an active national environmental NGO, challenged the legal validity of the 2017 National Mitigation Plan[4] on the grounds that it failed to meet the requirements of the 2015 Act and that it failed to vindicate the requirements of applicable constitutional and human rights.听听
National Climate Change Legislation
On the basis of careful and rigorous scrutiny of the 2015 Act, the unanimous judgment of the Supreme Court determined that 鈥榯he overriding requirement of a compliant plan is that it specifies how that objective is to be achieved by 2050鈥, proceeding to find that the 2017 Plan 鈥榝alls a long way short of the sort of specificity which the statute requires鈥. Accordingly, the Court held that the Plan should be quashed on the grounds of having failed to comply with its statutory mandate. In doing so the Court emphasised the critical importance of transparency and public participation in the adoption and implementation of transition measures.听 Whereas the Irish Government argued that the 2015 Act envisaged transition planning as a continually evolving, incremental process, with a new plan required at least every fifth year, the Court determined that each plan must demonstrate a reasonable degree of specificity, as 鈥榌t]he public are entitled to know how it is that the government of the day intends to meet the NTO鈥.听 The Court was not satisfied that the required level of specificity was achieved in the formulation of the 2017 Plan.
Purported Constitutional Right to Environment
However, in relation to the constitutional and human rights claimed by FIE, the Supreme Court was rather more cautious. The constitutional rights invoked by FIE included the express right to life (in particular, 鈥榯he obligation of the State to seek to protect persons against a future threat to life arising from climate change鈥), and the unenumerated right to bodily integrity (due to the fact that 鈥榯he consequences of climate change will significantly impact on the health and bodily integrity of persons), as well as the emerging unenumerated right to an environment consistent with human dignity. In addition, citing the Netherlands Supreme Court鈥檚 judgment in the recent Urgenda case,[5] FIE sought to rely on Articles 2 and 8 of the European Convention on Human Rights (ECHR), as incorporated into Irish law by the 2003 European Convention on Human Rights Act.听
Denying FIE standing, as a corporate entity, to invoke such personal constitutional or human rights, the Supreme Court pointed out that Irish constitutional law does not permit a so-called actio popularis, i.e. an action brought on behalf of the public as a whole, and it considered that this aspect of the challenge ought to have been brought by natural persons who would undoubtedly enjoy the right to life and the right to bodily integrity.听 The Court took a similar position regarding standing to invoke the human rights relied upon.
While these statements leave it open to such natural persons to seek to rely upon these firmly established constitutional rights in the future, the Supreme Court actively distanced itself from recognition of any unenumerated constitutional right to an environment consistent with human dignity and/or to a healthy environment, 鈥榌l]est by not commenting on those matters it might in the future be argued that this Court had implicitly accepted the position鈥. In addition to concerns regarding a possible 鈥榖lurring of the separation of powers鈥, the Court doubted that such a purported right would provide any protection additional to the established rights to life and bodily integrity, and also described it as 鈥榠mpermissibly vague鈥, suggesting that 鈥榯here needs to be at least some concrete shape to a right before it is appropriate to identify it as representing a standalone and separate right derived from the Constitution鈥. In a further justification of its conservative approach, the Court noted that, with the solitary exception of India, 鈥榥o such right has been recognised in countries within the broad common law family鈥.听
Therefore, though the Supreme Court has taken a very robust view of the normative requirements of current Irish legislation on addressing climate change, it appears to have signalled a significant retreat regarding judicial recognition of a 鈥渄erived鈥 constitutional right to environment, stating emphatically that 鈥榯he ill-defined right to a healthy environment sought to be relied on is either superfluous or lacking in precision and I would not suggest that a right as so described can be derived from the Constitution鈥.
Comment
While the Supreme Court鈥檚 emphatic recognition of the role of judicial review where policy objectives have been incorporated into legislation is welcome, as is its emphasis on transparency and public participation, the Court鈥檚 view that a right to environment might add no additional protection over and above the established rights to life and bodily integrity is clearly disappointing.听 This is especially so when one considers that practically no environmental jurisprudence has emerged in connection with these constitutional rights, despite the fact that the right to bodily integrity was first recognised in 1965[6] and that Ireland has in recent years experienced extensive public interest environmental litigation. This suggests that these established rights have tended to lack an 鈥榚nvironmental orientation鈥,[7] a point that appears to have been recognised, at least implicitly, in the earlier High Court decision in Merriman v Fingal County Council.[8] Similarly, the Court鈥檚 concerns regarding the lack of clarity of any right to environment fails to take account of the wealth of normative guidance provided by the recent global practice recognised under the banner of 鈥楨nvironmental Constitutionalism鈥.[9]
[1] See, for example, R. O鈥橤orman, 鈥楨nvironmental Constitutionalism: A Comparative Study鈥, (2017) 6/3 Transnational Environmental Law 435-462.
[2] Merriman v Fingal County Council听[2017] IEHC 695.
[3] , [2020] IESC 49.
[5] Urgenda (The State of the Netherlands v. Stichting Urgenda (ECLI: NL: HR: 2019: 2007).
[6] Ryan v. Attorney General [1965] 1 I.R. 294.
[7] T. Muinzer, 鈥楥limate Case Ireland: The Good News and the Bad鈥, University of Aberdeen Blog Post, 5 August 2020, available at:
[8] Note 2.
[9] See, for example, JR May and E Daly, Environmental Constitutionalism (Edward Elgar, 2016); LK Weis, 鈥楨nvironmental Constitutionalism: Aspiration or Transformation?鈥, (2018) 16/3 International Journal of Constitutional Law, 836-870; United Nations Environment Programme, Judicial Handbook on Environmental Constitutionalism (UN, 2017).
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