Friends of the Irish Environment v The Government of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 31 July 2020
• Neutral Citation: [2020] IESC 49
• Court: Supreme Court
• Docket Number: [Appeal No: 205/19]
• Date: 31 July 2020

Between/

Friends of the Irish Environment CLG

Applicants/Appellants

and

The Government of Ireland, Ireland

and

the Attorney General

Respondents

[2020] IESC 49

Clarke C.J.

Irvine P.

O'Donnell J.

MacMenamin J.

Dunne J.

O'Malley J.

Baker J.

[Appeal No: 205/19]

THE SUPREME COURT

Statutory plan – Climate change – Legislation – Appellants seeking to quash a statutory plan for tackling climate change – Whether the plan is ultra vires the relevant legislation

Facts: The appellants, Friends of the Irish Environment CLG (FIE), contended that the first respondent, the Government of Ireland, in a statutory plan for tackling climate change, failed adequately to vindicate rights which were said to be guaranteed by either or both of the Constitution and the European Convention on Human Rights (ECHR). It was also said that the plan is ultra vires the relevant legislation. On that basis proceedings were brought in the High Court seeking a range of reliefs. The High Court (MacGrath J) dismissed FIE’s proceedings. FIE sought leave to appeal directly to the Supreme Court. By determination dated 13th February 2020, the Supreme Court granted FIE leave to appeal the decision of the High Court.

Held by Clarke CJ that, having considered the argument put forward by FIE to the effect that the Plan does not comply with its legislative remit under the Climate Action and Low Carbon Development Act 2015 and is, therefore, ultra vires, contrary to the submissions made on behalf of the Government, FIE should be entitled to pursue the wider range of argument on this issue addressed in their written submissions. Clarke CJ concluded that the issues are justiciable and do not amount to an impermissible impingement by the courts into areas of policy. Clarke CJ also concluded that the 2015 Act, and in particular s. 4, requires a sufficient level of specificity in the measures identified in a compliant plan that are required to meet the National Transitional Objective (NTO) by 2050 so that a reasonable and interested person could make a judgement both as to whether the plan in question is realistic and as to whether they agree with the policy options for achieving the NTO which such a plan specifies. Clarke CJ held that the 2015 Act as a whole involves both public participation in the process leading to the adoption of a plan but also transparency as to the formal government policy, adopted in accordance with a statutory regime, for achieving what is the statutory policy of meeting the NTO by 2050. Clarke CJ held that a compliant plan is not a five-year plan but rather a plan covering the full period remaining to 2050; while the detail of what is intended to happen in later years may be less complete, a compliant plan must be sufficiently specific as to policy over the whole period to 2050. Clarke CJ concluded that the plan falls well short of the level of specificity required to provide that transparency and to comply with the provisions of the 2015 Act. On that basis, Clarke CJ proposed that the plan be quashed.

Clarke CJ held that FIE, as a corporate entity which does not enjoy in itself the right to life or the right to bodily integrity, does not have standing to maintain the rights based arguments sought to be put forward whether under the Constitution or under the ECHR. Clarke CJ concluded that it had not been shown that it was necessary to allow FIE to have standing under the exception to the general rule, which arises in circumstances where refusing standing would make the enforcement of important rights either impossible or excessively difficult. On that basis Clarke CJ did not consider it appropriate to address the rights-based arguments put forward, but did offer views on the question of whether there is an unenumerated or derived right under the Constitution to a healthy environment. While not ruling out the possibility that constitutional rights and obligations may well be engaged in the environmental field in an appropriate case, Clarke CJ expressed the view that the asserted right to a healthy environment is either superfluous (if it does not extend beyond the right to life and the right to bodily integrity) or is excessively vague and ill-defined (if it does go beyond those rights). As thus formulated, Clarke CJ expressed the view that such a right cannot be derived from the Constitution.

Plan quashed.

Judgment of Mr. Justice Clarke , Chief Justice, delivered the 31 ^st of July, 2020.

1. Introduction

1.1 Climate change is undoubtedly one of the greatest challenges facing all states. Ireland is no different. There are many issues at the level of both policy and practice as to how the problems associated with climate change can, or should, be tackled. However, it is important to emphasise that these proceedings are concerned with whether the Government of Ireland (“the Government”) has acted unlawfully and in breach of rights in the manner in which it has adopted a statutory plan for tackling climate change. It is important at the outset to emphasise that the role of the courts generally, and of this Court in particular, is confined to identifying the true legal position and providing appropriate remedies in circumstances which the Constitution and the laws require.

1.2 The applicants/appellants (“FIE”) contend that the Government, in the plan in question, has failed adequately to vindicate lights which are said to be guaranteed by either or both of the Constitution and the European Convention on Human Rights (“ECHR or “the Convention”). It is also said that the Plan is ultra vires the relevant legislation. On that basis proceedings were brought in the High Court seeking a range of reliefs, to which it will be necessary to refer in more detail in due course. For the reasons set out in a judgment of MacGrath J. ( Friends of the Irish Environment CLG v. The Government of Ireland [2019] IEHC 747), the High Court dismissed FIE's proceedings. From that dismissal, FIE sought leave to appeal directly to this Court.

2. The Grant of Leave to Appeal

2.1 By determination dated 13 ^th February 2020 ( Friends of the Environment CLG v. The Government of Ireland & The Attorney General [2020] IESCDET 13) this Court granted FIE leave to appeal the decision of the High Court for the following reasons:-

“8. The applicant and the respondents accept that there exists a degree of urgency in respect of the adoption of remedial environmental measures. There is no dispute between the parties as to the science underpinning the Plan and the likely increase in greenhouse emissions over the lifetime of the Plan. Further, the parties accept the gravity of the likely effects of climate change.

9. It is unlikely, therefore, that the questions of law or the factual issues will be further refined as a result of a hearing before the Court of Appeal.

10. The availability of judicial challenge to the legality of the Plan by the Government, the standard of such review if adoption of the Plan is justiciable as matter of law, and the broader environmental rights asserted by the applicant to arise under the Constitution, from the European Convention of Human Rights and/or from Ireland s international obligations are issues of general public and legal importance.”

2.2 As noted, it is usually appropriate, even in cases which might meet the constitutional threshold for leave to appeal to this Court, that an initial appeal is considered by the Court of Appeal, where narrowing and clarification of the issues of importance can take place. However, in the present proceedings the parties did not dispute the relevant science, meaning that these issues were unlikely to require further refinement. Furthermore, the urgency which attends the resolution of this matter was determined by this Court to meet the additional criteria necessary for a leapfrog appeal.

2.3 At a very general level it may be said that the issues arising on this appeal relate solely to standing, to justiciability, to the legality of the adoption of the National Mitigation Plan (“the Plan”), the correct standard of judicial review if the adoption of the Plan is justiciable and the broader environmental and other rights asserted by FIE to arise under the Constitution and the ECHR.

2.4 The background to these proceedings is, of course, the science surrounding climate change. While the dispute between the parties (insofar as it did not relate to legal issues) focused on the measures which FIE suggest the Government is legally required to take in order to alleviate climate change, both under the Constitution, the ECHR and under statute, the broad underlying scientific evidence as to the causes of. and problems created by. climate change was not in dispute. It may be necessary. in the context of some of the issues raised, to deal with that scientific evidence in more detail, but for present purposes it is appropriate to set out a brief broad overview of the agreed position as tendered in evidence before the High Court and as accepted by the trial judge.

3. A Brief Overview of the Science

3.1 Clearly one of the principal aspects of the factual background to these proceedings concerns the current scientific understanding of climate change itself, the consequences of a continuation of current trends and of the type of measures which may need to be put in place to minimise the extent of the rise in temperatures. There would not appear to have been any dispute before the High Court about that scientific analysis and, as it provides the backdrop to the legal issues which need to be explored, it is appropriate to set it out first.

3.2 Since the beginning of the Industrial Revolution, mankind has generated and consumed energy on a large scale, predominantly through the combustion of fossil fuels. This process produces carbon dioxide and releases it into the atmosphere, where it remains for hundreds of years. Carbon dioxide, along with...