Friends of the Irish Enviroment CLG -v -The Government of Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice MacGrath
• Judgment Date: 19 September 2019
• Neutral Citation: [2019] IEHC 747
• Docket Number: [2017 No. 793 JR]
• Date: 19 September 2019

[2019] IEHC 747

THE HIGH COURT

JUDICIAL REVIEW

Justice MacGrath

[2017 No. 793 JR]

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT CLG

APPLICANT

-AND-

THE GOVERNMENT OF IRELAND, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENT

National Mitigation Plan – Constitutionality – Climate Action and Low Carbon Development Act 2015 – Appellant seeking to challenge the National Mitigation Plan – Whether the Plan is unconstitutional

Facts: The applicant, Friends of the Irish Environment CLG, challenged the National Mitigation Plan published on the 19th July, 2017 which was approved by the respondent, the Government of Ireland, under s. 3 of the Climate Action and Low Carbon Development Act 2015. The long title of the Act, which came into operation on 10th December, 2015, stated that it was: “to provide for the approval of plans by the Government in relation to climate change for the purpose of pursuing the transition to a low carbon, climate resilient and environmentally sustainable economy”. At the heart of this case was the applicant’s claim that the respondent, in measures which it had adopted in the Plan, had failed to take action to ensure a reduction in emissions particularly in the short and medium-term and thereby to attempt to achieve the targets which the international community had deemed to be not only desirable but necessary in order to protect the world’s climate and environment for not only the current but importantly for future generations.

Held by the High Court (MacGrath J) that, in light of the approach which it had taken in respect of the test for review, in the absence of any express authority relied upon by the applicant to suggest that there was a free standing cause of action to have executive action assessed on the basis of proportionality, and having born in mind the factors which had to be taken into account in the creation and adoption of the Plan, even if such a free standing cause of action or grounds for challenge existed, given the wide discretion which was available to the executive branch of government, particularly in the context of the wording of the Act, it was difficult to conclude that it had been established by the applicant that the State had acted in a disproportionate manner in the creation and adoption of the Plan when the Plan, as MacGrath J had found, was not ultra vires the Act which provided the basis upon which the State should achieve a low carbon transition without prescribing the requirement to achieve intermediate targets or trajectories.

MacGrath J held that, in the circumstances, he would refuse the reliefs sought.

Reliefs refused.

JUDGMENT of Mr. Justice MacGrath delivered on the 19th day of September, 2019.

Climate Change

1 This case concerns a challenge by the applicant to the National Mitigation Plan (“the Plan”) published on the 19th July, 2017 which was approved by the Government under s. 3 of the Climate Action and Low Carbon Development Act, 2015, (hereafter referred to as “the Act”). The long title of the Act, which came into operation on 10th December, 2015, states that it is:-

“to provide for the approval of plans by the Government in relation to climate change for the purpose of pursuing the transition to a low carbon, climate resilient and environmentally sustainable economy”.

2 The threat to the earth, its inhabitants and ecosystems, posed by the effects of climate change is well documented. The need for action is undoubted. International treaties have been adopted. In 1988 the Intergovernmental Panel on Climate Change ( “IPCC”), a scientific international body, was founded. It operates under the auspices of the United Nations and acts as an independent evaluator of published information about climate science. Within the IPCC there are a number of working groups which publish Assessment Reports ( “AR”). These reports involve a thorough investigation and analysis of scientific knowledge of climate change, its impacts, risks and future options. A number of relevant reports have been referred to in these proceedings, in particular, AR4 in 2007, and AR5 in 2014. These have been described as the main sources of the undisputed scientific information about climate change. Special Reports ( “SR”) have also been produced on topics agreed by member governments, in particular a report known as SR15, which followed the Paris Agreement, 2015.

3 Measures have been taken within the European Union and, in this jurisdiction, the Oireachtas has enacted the aforesaid Act of 2015. The Environmental Protection Agency ( “ EPA”) has produced reports in September, 2017, on the state of knowledge on climate change impacts for Ireland and in December, 2018, dealing with emissions and emission projections in this country. The Climate Change Advisory Council, established under s. 8 of the Act of 2015, has also reported and reviewed the Plan.

4 The scientific community agrees that global warming can be prevented, mitigated or reduced by ensuring the reduction of the emission of greenhouse gases into the atmosphere but significant effort is required. Adaptation measures may be also taken to counter the consequences of climate change. Further, the scientific community is attempting to develop measures to reduce existing levels of carbon dioxide in the atmosphere. This case concerns the former i.e. the plan for mitigation measures.

5 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. This was recognised in The State of the Netherlands v. Urgenda Foundation (C/09/456689/ZA), where the court observed that, although a global problem which the State could not solve on its own:-

“this does not release the State from its obligations to take measures in its territory within its capabilities which in concert with the efforts of other states provide protection from the hazards of dangerous climate change.”

Indeed, in the introduction to the Plan, it is acknowledged that climate change is already having diverse and wide-ranging impacts on Ireland's environment, society and on economic and natural resources. Future impacts are predicted to include sea-level rise; more intense storms and rainfall; increased likelihood and magnitude of river and coastal flooding; water shortages in summer; increased risk of new pests and diseases; adverse impacts on water quality; and changes in the distribution and time of lifecycle events of plant and animal species on land and in the oceans. The plan also recognises the limited window for real action to ensure that current and future generations can live sustainably in a low carbon climate resilient world. Acknowledging that impacts will be felt unevenly, and the responsibility to support less developed countries in achieving objectives, nevertheless, it also states that the climate challenge cuts across all sectors of society.

6 The information and studies opened to this court indicate that there is a relationship between cumulative emissions, temperature rises and global risks to the environment, risk of death, of injury and health particularly in low-lying coastal zones and small island developing states due to storm surges, coastal flooding and sea level rises. There are also reported risks of mortality and morbidity during periods of extreme heat. Food systems may be at risk and there is a risk of loss of rural livelihoods and income. The more one proceeds to global warming of 2°C higher relative to the beginning of the Industrial Revolution the greater are such risks. AR5 indicates that there is evidence of a strong, consistent, almost linear relationship between cumulative carbon dioxide emissions and projected global temperature change to 2100. Representative Concentration Pathways (“ RCPs”) which are greenhouse gas concentration (not emission) pathways, were adopted in AR5. Risks have been identified in all such pathways. That report contains the following passage:-

“Multi-model results show that limiting total human-induced warming to less than two degrees relative to the period 1861 to 1880 with a probability of >66% would require cumulative CO2 emissions from all anthropogenic sources since 1870 to remain below about 2,900 Gt of CO2 (with a range of 2,550 to 3,150 GtCO2 depending on non – CO2 drivers). About 1,900 GtCO2 has already been emitted by 2011.”

7 The applicant maintains that crucial to understanding the risks of climate change and to appreciate warming levels are historical cumulative emissions. Every unit emitted contributes equally to warming, regardless of when or where it is emitted. Thus, the more emissions that have taken place over past years, then the less emissions can be afforded in the future if we wish to stay within particular concentrations in the atmosphere and therefore below particular temperatures. There are “budgets” of the maximum amount that can be afforded to carbon dioxide emissions, to keep the temperature increases below 2°C above preindustrial levels. This court has been informed that the world cannot afford to emit more than a further 1000 gigatons of carbon in order to stay below the 2°C limit. In order to achieve, or stay under 1.5°C, this amount will need to be reduced significantly.

8 The applicant contends that last minute reductions will not achieve the desired targets and what matters for the purposes of assessing the effect on concentrations and thus temperature is what occurs during the entire period over which one is attempting to reduce emissions. Therefore, to prevent harm, emissions must be reduced in a feasible but sharply downwards trajectory. The applicant maintains that for the State to argue that measures will be put in place to achieve a reduction by 2050 does not meet the case, as it...