This article is co-authored by Helena Murphy.
The Irish Government’s alleged failure to mitigate climate change is the subject of a legal challenge taken by Friends of the Irish Environment CLG (FIE) against the Irish Government. The judicial review proceedings were heard before the High Court in January 2019. This is the first time a case of this nature has come before the Irish courts and its outcome may have far-reaching legal and political consequences. The written judgement will be delivered at a later date and this post sets out the arguments advanced by both parties.
The case is one which has garnered widespread media coverage and intense public interest. FIE argued before a packed courtroom that the 2017 National Mitigation Plan (the ‘Plan’) does not adequately provide for the necessary decarbonisation of Ireland’s economy and therefore breaches the Climate Change and Low Carbon Development Act 2015 (the ‘2015 Act’). Furthermore, human rights of Irish citizens are potentially violated. FIE therefore sought an order to have the Plan quashed and remitted to the Government for redrafting. The Government’s response was essentially as follows: (i) the Plan cannot be judicially reviewed as to do so would breach the separation of powers doctrine, (ii) the Government have not breached their human rights obligations as a result of approving the Plan, the execution of which depends on many complex factors, and (iii) FIE lacks locus standi.
Ireland’s Climate Change Obligations
Mr Justice Michael McGrath heard from Mr Eoin McCullough SC, for FIE, that Ireland has the third highest emissions per capita in the EU and that its greenhouse gas (GHG) emissions are rising rather than falling. This is at odds with the conclusions of the Intergovernmental Panel for Climate Change that developed countries must reduce their emissions by between 25% and 40% from 1990 levels by 2020 if runaway climate change is to be avoided. The Paris Agreement requires rapid emissions reductions to be undertaken in order to keep global warming to “well below” 2°C relative to pre-industrial times. Signatory states, including Ireland, must put forward ambitious nationally determined contributions to attain this goal. Ireland’s contribution is captured by the EU’s overall commitment to reduce GHG emissions by 80% by 2050. The Court heard that Ireland is “completely off course” in meeting its 2020 emissions reduction targets, with knock-on effects for future compliance. As a result, it faces the prospect of significant EU fines and mitigation costs which will rise sharply over time.
Weaknesses of the National Mitigation Plan
The 2015 Act seeks to implement Ireland’s obligations under the Paris Agreement and requires the Government to draw up a national mitigation plan which (a) takes into account the State’s EU and international obligations, and (b) specifies the mitigation policy to be adopted by government ministers for the purposes of reducing GHG emissions. FIE argued that the Plan fails to meet these requirements as it does not contain adequate measures to enable the required reductions. According to projections of the Environmental Protection Agency, Ireland’s emissions will continue to rise unless there is a swift implementation of effective, additional mitigation policies. The Climate Change Advisory Council has expressed misgivings about the Plan’s lack of precision, highlighting numerous gaps. FIE therefore submitted that the Plan is not fit for the purpose of climate mitigation under the 2015 Act.
The Plan as a “Living Document”
The Government argued that the Plan is not a suitable subject for judicial review as it is merely a roadmap for future mitigation measures, rather than a final decision on the matter. The Plan must be seen as a living document and any adoption of specific measures will necessarily be informed by national and international developments, including scientific advancements. Policy decision-making in this area is, by its nature, highly complex and the courts should exercise a degree of deference towards specialised executive bodies. FIE submitted, in turn, that it was not asking the Court to carry out an executive role, for example by prescribing the precise content of any redrafted plan. Nor was it asking the Court to adjudicate upon public expenditure. Instead, FIE was simply seeking a recognition from the Court that the Plan breaches the 2015 Act and is inconsistent with the objectives of the Paris Agreement and therefore requires redrafting.
Human Rights under the Constitution
The Court heard from Mr McCullough that the Government, by approving the Plan, prevents Ireland from reducing its emissions in accordance with key international instruments, thereby contributing disproportionately to climate change. As a result, the State exposes citizens to “unacceptable” dangers posed by extreme weather events, displacement and coastal flooding. This constitutes a flagrant breach of fundamental human rights, notably the constitutional rights to life, bodily integrity and the unenumerated right to environmental protection, recognised by the High Court last year. While there was no dispute between the parties regarding the probable consequences of climate change for human life and health, the Government argued that human rights are not violated or threatened with same. The Government further denied the existence of a direct causal link between any such infringement and the Government’s approval of the Plan. Furthermore, the Government has sought to remedy its reputation as a climate change “laggard” and has already embarked on a wide range of measures to manage its emissions. The Government therefore denied that they have acted in clear disregard of citizens’ human rights under the Irish Constitution.
European Convention on Human Rights
FIE also claimed that the right to life and the right to family and private life under the European Convention on Human Rights (‘ECHR’) have been breached. FIE cited the European Court’s jurisprudence which has held that a state is obliged to protect human life by mitigating imminent environmental risks upon becoming so aware. The Government noted this point but reminded the Court that state parties to the Convention enjoy a wide margin of discretion in the manner by which they fulfil duties under the ECHR. They argued that FIE was in effect asking the Court to order emissions reductions on an unprecedented scale. This would impose “hugely onerous” obligations on the State with potentially serious implications for the Irish economy and for Irish society.
Even if the Court finds that violations of human rights were occasioned, the Government argued, FIE does not have the required locus standi. FIE is an incorporated organisation and, as such, does not hold human rights capable of being infringed, nor does it seek to represent a well-defined class of persons. FIE submitted that it is a bona fide organisation whose stated aim is to advance environmental protection on behalf of Irish citizens and it has a sufficient interest in the instant case. FIE has raised profoundly important questions relating to the environment, a matter which is of clear public interest.
On a Wave of Climate Litigation
In 2015 the District Court of The Hague, in the Netherlands, ruled that the Dutch Government must cut its GHG emissions by at least 25% by the end of 2020, a ruling which was upheld by the Dutch Court of Appeal. Following this ground-breaking case, several high-profile climate cases have been taken against governments and authorities in countries as diverse as Colombia, France, Pakistan and the United States. The recent case brought by FIE is an important addition to this growing corpus of climate litigation and it will potentially have important implications for Irish constitutional law and for the development of climate change policies in Ireland and perhaps further afield.