The Irish Supreme Court Judgment in Climate Case Ireland: ‘One Step Forward and Two Steps Back’

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 ‘doctrine of unenumerated rights’, 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’s dismal performance on climate. Elaboration and enforcement of such an inferred right would align neatly with developing constitutional practice globally and with Ireland’s international commitments on addressing climate change. 

On 31 July, the apex Supreme Court[3] acknowledged the justiciability of the Irish government’s legal obligation to set out serious and credible measures to achieve Ireland’s ‘national transition objective’, as mandated by the 2015 Climate Action and Low Carbon Development Act.  Section 4 of the 2015 Act required adoption of a National Mitigation Plan which would ‘specify the manner in which it is proposed to achieve the national transition objective’, which involves Ireland’s transition to a ‘low carbon, climate resilient and environmentally sustainable economy’ by 2050.  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.  

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 ‘the overriding requirement of a compliant plan is that it specifies how that objective is to be achieved by 2050’, proceeding to find that the 2017 Plan ‘falls a long way short of the sort of specificity which the statute requires’. 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.  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 ‘[t]he public are entitled to know how it is that the government of the day intends to meet the NTO’.  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, ‘the obligation of the State to seek to protect persons against a future threat to life arising from climate change’), and the unenumerated right to bodily integrity (due to the fact that ‘the 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’s 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. 

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.  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, ‘[l]est by not commenting on those matters it might in the future be argued that this Court had implicitly accepted the position’. In addition to concerns regarding a possible ‘blurring of the separation of powers’, 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 ‘impermissibly vague’, suggesting that ‘there 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’. In a further justification of its conservative approach, the Court noted that, with the solitary exception of India, ‘no such right has been recognised in countries within the broad common law family’. 

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 “derived” constitutional right to environment, stating emphatically that ‘the 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’.

Comment

While the Supreme Court’s 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’s 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.  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 ‘environmental orientation’,[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’s 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 ‘Environmental Constitutionalism’.[9]

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[1] See, for example, R. O’Gorman, ‘Environmental Constitutionalism: A Comparative Study’, (2017) 6/3 Transnational Environmental Law 435-462.

[2] Merriman v Fingal County Council [2017] IEHC 695.

[3] Friends of the Irish Environment v. The Government of Ireland & Others, [2020] IESC 49.

[4] https://www.climatecaseireland.ie/wp-content/uploads/2018/04/National-Mitigation-Plan-2017.pdf

[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, ‘Climate Case Ireland: The Good News and the Bad’, University of Aberdeen Blog Post, 5 August 2020, available at: https://www.abdn.ac.uk/law/blog/climate-case-ireland-the-good-news-and-the-bad/

[8] Note 2.

[9] See, for example, JR May and E Daly, Environmental Constitutionalism (Edward Elgar, 2016); LK Weis, ‘Environmental Constitutionalism: Aspiration or Transformation?’, (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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About the Author

Owen McIntyre is a Professor at the School of Law at University College Cork. He is the Director of LL.M. (Environmental & Natural Resources Law) Programme and Co-Director for the Centre for Law & the Environment. His principal interest is the field of Environmental Law, with a particular research focus on International Water Law. He has served as the inaugural Chair of the IUCN World Commission on Environmental Law's Specialist Group on Water and Wetlands, on the Project Complaints Mechanism of the European Bank for Reconstruction and Development (EBRD), and on the Scientific Committee of the European Environment Agency. He holds visiting positions at University of Dundee, Charles University Prague, Xiamen University and Wuhan University.