The Right to an Environment and its Effects for Climate Change Litigation in Ireland
| Author | Eadbhard Pernot |
| Position | LL.B. (ling. germ.), Trinity College Dublin, LL.M. Energy and Climate Law Candidate, Rijksuniversiteit Groningen |
| Pages | 151-172 |
© 2019 Eadbhard Pernot and Dublin University Law Society
THE RIGHT TO AN ENVIRONMENT AND ITS
EFFECTS FOR CLIMATE CHANGE LITIGATION IN
IRELAND
EADBHARD PERNOT
Introduction
In a world increasingly alert to the development of climate change, the
recognition of the right to an environment in the Irish courts signifies a
response by the judiciary to the growing concern of many about the
relationship between humanity and the environment. First established in the
United Nations Stockholm Declaration of 1972, the fundamental right to
‘freedom, equality and adequate conditions of life, in an environment of a
quality that permits a life of dignity and well-being’
1
exhibits a perspective
which takes account not just of humanity’s interaction with itself, but with
its surroundings too. Nevertheless, it took 45 years for the right to an
environment to achieve recognised status in the Irish Constitution, after
more than 100 States had already given it constitutional recognition and
protection.
2
With Ireland off track in its emissions reduction targets, there is
growing public concern that not enough is being done to mitigate climate
change and its effects.
3
The courts are certainly not immune to this. Across
the world, climate change litigation has become the focus of increased
attention as a possible aid to solving political inaction. As promises made by
LL.B. (ling. germ.), Trinity College Dublin, LL.M. Energy and Climate Law Candidate,
Rijksuniversiteit Groningen. The author would like to extend his gratitude to Lorcán Hickey
for his insightful comments and suggestions on an earlier draft of this article. The author would
also like to thank his parents, Mary and Ed, for their unending devotion and support. All errors
and omissions are the author's own.
1
Declaration of the United Nations Conference on the Human Environment (1972), Principle
1.
2
David R Boyd, ‘Catalyst for change: evaluating forty years of experience in implementing the
right to a healthy environment’ in John H Knox and Ramin Pejan, The Human Right to a
Healthy Environment (1st edn, Cambridge University Press 2018) 40.
3
Mark Hilliard, ‘Ireland “can’t reach” target to cut carbon emissions by 2020’ The Irish Times
(Dublin, 25 July 2018) https://www.irishtimes.com/news/environment/ireland-can-t-reach-
target-to-cut-carbon-emissions-by-2020-1.3576192> accessed 2 January 2019.
Trinity College Law Review [Vol 22
152
politicians are not kept and climate change commitments go unfulfilled,
4
environmental action groups increasingly view the courts as a key
battleground in the fight against climate change.
In Ireland, however, optimism that the courts could lead the way in
implementing climate change action might soon dwindle: litigants may
discover that their claims stand against robust doctrines central to Irish
jurisprudence. In particular, rights-based claims should find the doctrine of
non-justiciability serves as a potential roadblock in demanding the
government to improve its climate policy. But climate change is a
phenomenon which poses challenges not faced in modern times. As other
national courts have taken seemingly radical and unprecedented steps in this
context, the right to an environment may yet find success in the Irish courts
and prove instrumental to climate change litigation.
This article first examines the development of the right to an
environment under the unenumerated rights doctrine, before it assesses what
sort of scope and justiciability, if any, it may have under current Irish law.
Then, this article examines rights-based climate change cases in other
national courts, looking at the ambitious steps that some courts have taken
in enforcing climate policy and how these judgments could influence the
development of the right to an environment in the Irish courts. Finally, this
article examines how this right could prove to be instrumental in climate
change litigation in Ireland.
I. Recognition of the Right to an Environment
Although no other human right has gained such widespread constitutional
recognition so rapidly since the Stockholm Declaration’s recognition of the
right to an environment,
5
Ireland had, until recently, failed to follow this
trend. However, the recognition of the right to an environment in Merriman
v Fingal County Council
6
signals a new direction for the Irish courts.
In this case, Friends of the Irish Environment (FIE), a non-
governmental environmental organisation, challenged Fingal County
Council's decision, made under section 42 of the Planning and Development
Act 2000, granting the Dublin Airport Authority a five-year extension on
4
A United Nations report has found that, according to current policy scenarios, global
emissions are not estimated to peak by 2030, let alone by 2020. See United Nations
Environment Programme, Emissions Gap Report 2018, 4
ce=10> accessed 17 February 2019.
5
Boyd, ‘Catalyst for Change’ (n 2) 18.
6
[2017] IEHC 695.
2019] The Right to an Environment
153
their planning permission to build a new runway. The claims brought by FIE
were rejected for preliminary reasons, including the fact that the time for
disputing the validity of the decision had expired, as well as a failure to
establish locus standi. However, the High Court still believed it was
necessary to hear the full claims of the parties, should the parties appeal the
court’s decision to reject the case on preliminary grounds.
7
The most significant part of this case was Barrett J’s recognition of the
existence of a ‘right to an environment that is consistent with the human
dignity and well-being of citizens at large’ and that ‘is an essential condition
for the fulfilment of all human rights’.
8
He remarked, ‘it is an indispensable
existential right that is enjoyed universally, yet which is vested personally
as a right that presents and can be seen always to have presented, and to
enjoy protection, under Art. 40.3.1° of the Constitution’.
9
Thus the right to
an environment became the latest edition to the unenumerated rights
doctrine.
Emerging from the personal rights guaranteed in Article 40.3 of the
Constitution, the unenumerated rights doctrine has remained one of the more
controversial elements of Irish jurisprudence. Article 40.3.1° states ‘the
State guarantees in its laws to respect, and as far as practicable, by its law to
defend and vindicate the personal rights of citizens’.
10
Article 40.3.2°
provides that the ‘State shall, in particular, by its laws protect as best it may
from unjust attack and, in the case of injustice done, vindicate the life,
person, good name and property rights of every citizen’.
11
The Supreme Court first enumerated additional personal rights
guaranteed by the Constitution in Ryan v Attorney General.
12
Kenny J
accepted that Article 40.3.1° protected rights not expressly written in the
Constitution and agreed that the plaintiff enjoyed an unenumerated right to
bodily integrity for two reasons. First, Kenny J assessed the use of the words
‘in particular’ before the enumeration of individual rights in Article 40.3.2°
and the reference to ‘personal rights’ in Article 40.3.1°. This suggested that
there were additional unenumerated rights in the Constitution.
13
Second,
Kenny J stated that ‘there are many personal rights of the citizen which flow
7
ibid [21] (Barrett J).
8
ibid [264] (Barrett J).
9
ibid.
10
Article 40.3.1°.
11
Article 40.3.2°.
12
[1965] IR 294.
13
ibid 313.
Trinity College Law Review [Vol 22
154
from the Christian and democratic nature of the State which are not
mentioned in Article 40’.
14
Ryan signalled the beginning of an era of Irish jurisprudence in which
judicial activism came to the forefront. In the years following the decision,
various other unenumerated rights were recognised.
15
The Courts then
slowed in their recognition of further rights, recognising only three in the
1980s
16
and two in the 1990s.
17
Aspects of the right to an environment, through its nature as a
recognised unenumerated right, may lend it the same criticisms levelled at
other unenumerated rights. The following section seeks to assess these
criticisms and how the right to an environment withstands them.
II. The Right to an Environment: On Solid Ground?
A) A More Suitable Basis
One of the strongest criticisms made in the recognition of unenumerated
rights has been the lack of a mechanism for the objective ascertainment of
such rights.
18
Historically, criticism has been levelled against Kenny J’s use
of the ‘Christian and democratic nature of the State’
19
as being the basis of
recognising such rights.
20
Indeed, Hogan remarks that ‘quite apart from the
fact that it is not at all self-evident that this is the test that should be applied
… it is not easy to see how this test could objectively be applied’.
21
14
ibid 314.
15
Such rights included the right to work and earn a livelihood: Murphy v Stewart [1973] IR 97;
the right to marital privacy: McGee v Attorney General [1974] IR 284; the right to fair
procedures: Re Haughey [1971] IR 217; the right to travel: Ryan v Attorney General [1965] IR
294 and The State (M) v Attorney General [1979] IR 73; the right to marry: Ryan v Attorney
General [1965] IR 294 and McGee v Attorney General [1974] IR 284; the rights of an
unmarried mother vis-à-vis her child: State (Nicolaou) v An Bord Uchtála [1966] IR 567; and
the right to state-funded legal representation in criminal trials: State (Healy) v Donoghue [1976]
IR 325.
16
The right to procreate: Murray v Ireland [1985] IR 532; the right to communicate: The State
(Murray) v Governor of Limerick Prison (HC, 23 August 1978); the right to individual privacy:
Kennedy v Ireland [1987] IR 587.
17
The right to independent domicile and the right to maintenance: CM v TM [1991] ILRM 268;
the right to know the identity of one's natural mother: O'T v B [1998] 2 IR 321.
18
Gerard Hogan, ‘Unenumerated Personal Rights: Ryan's Case Re-Evaluated’ (1990) 25 IJ (ns)
95, 114.
19
Ryan (n 12) 312;
20
Hogan (n 18), 104-111; The Constitution Review Group, Report of the Constitution Review
Group (Pn 2632, 1996) 227-228.
21
Hogan (n 18), 104.
2019] The Right to an Environment
155
In contrast to Kenny J’s reliance on the ‘Christian and democratic
nature of the State’ in Ryan, Barrett J seemed to take a secular approach to
recognising the ‘right to an environment’ when he accepted that there is ‘a
scientific consensus concerning the centrality of (maintaining) the
environment to continue human existence’.
22
Barrett J pointed especially to
Walsh J’s observation in McGee
23
that the preamble to the Constitution
states that ‘the people gave themselves the Constitution to promote the
common good with due observance of prudence, justice and charity so that
the dignity and freedom of the individual might be assured’.
24
Barrett J then acknowledged a theological basis for such a right,
commenting that ‘the commonality of views that appears to be shared by all
of the major religions on matters environmental ... (points) to humanity’s
common destiny as the stewards and trustees of our shared natural
environment’.
25
Cautious to refrain from restricting such environmental
philosophy to religious faiths, Barrett J also remarked: ‘secular
environmental philosophy … offers a rational and non-religious basis by
which one can arrive at a place not so very far removed from that occupied
by the major religious faiths’.
26
Still, Barrett J concluded: ‘though the court
has every respect for people of all faiths and none, this judgment falls to be,
and has been, decided by reference solely to accepted legal reasoning’.
27
Barrett J therefore surmounts a common criticism of the unenumerated
rights doctrine by relying on objective justifications in finding the right to
an environment – namely, scientific consensus and evidence of the necessity
of enshrining environmental protection in the Constitution. Given that the
environment plays a critical role in the health and well-being of human life,
it ought to be afforded constitutional protection as an expression of its value
to Irish society. Furthermore, his references to both theological and secular
philosophy give the right to an environment some added normative
credibility.
28
The prevalence of environmental concerns also appeared to impact the
decision in Merriman. Historically, the courts have been acutely aware of
developments in the public consciousness. Walsh J remarked in McGee, for
example, that ‘no interpretation of the Constitution is intended to be final for
22
Merriman (n 6) [242] (Barrett J).
23
McGee v Attorney General [1974] IR 284.
24
ibid 318-319.
25
Merriman (n 6) [242] (Barrett J).
26
ibid.
27
ibid.
28
Marc A. R. Zemel, ‘The Rise of Rights-Based Climate Litigation and Germany’s
Susceptibility to Suit’ (2018) 29 Fordham Environmental Law Review 484, 500.
Trinity College Law Review [Vol 22
156
all time. It is given in the light of prevailing ideas and concepts’.
29
In
Merriman, Barrett J was therefore keen to point out that:
[T]here has… surfaced (i) a rising public concern about increasing
environmental degradation and (ii) a greater public awareness that
the quality of our life as a nation, and as members of the wider
human community, is threatened by the processes which have
yielded the very quality of life which we presently enjoy.
30
Thus, the right to an environment finds particular relevance. The public’s
growing awareness of and concern for environmental matters is evidence of
the prevailing view that society must take responsibility for its
environmental impact. Barret J’s interpretation of the Constitution in light
of this widespread social concern therefore further justified his enumeration
of the right to an environment.
B) References to Other Personal Rights
Another criticism levelled at the recognition of unenumerated rights is the
lack of reference to rights already established elsewhere in the Constitution.
Hogan argues that ‘the courts should be very slow to accept arguments based
on the existence of new unenumerated rights unless they can point to other
constitutional provisions (ie quite independently of Article 40.3) to support
[such recognition]’.
31
In Merriman, Barrett J made reference to the importance of other
constitutional rights contained in Article 40.3 and elsewhere in the
Constitution.
32
These included the right to life
33
and the right to health,
34
as
well as the right to work
35
and the right to private property.
36
Such rights
were, he said: ‘capable of supporting individual claims in particular
environmental situations’.
37
These references to other supporting rights
would satisfy Hogan’s concerns that new unenumerated rights should not be
recognised unless rights found outside of Article 40.3 can support them.
29
McGee (n 23) 318-319.
30
Merriman (n 6) [261] (Barrett J).
31
Hogan (n 18), 115.
32
ibid [263] (Barrett J).
33
Article 40.3.2°.
34
Which Barrett J contended comes from within Article 40.3.
35
Which Barrett J construed as being contained either in Article 40 or Article 45.
36
Article 43.
37
ibid [263] (Barrett J).
2019] The Right to an Environment
157
Barrett J also made reference to the link between the right to an
environment and the established right to bodily integrity, stating, ‘members
of (FIE) and by extension the wider population, are equally at risk, in terms
of their bodily integrity, from the global and local and accelerating
degradation of our environment’.
38
To explain under what circumstances the
courts may recognise a new unenumerated right, Barrett J also drew upon
Walsh J’s use of the preamble in McGee where he stated, ‘according to the
preamble, the people gave themselves the Constitution to promote the
common good with due observance of prudence, justice and charity so that
the dignity and freedom of the individual might be assured’.
39
It is, he
commented, ‘difficult to see how the dignity and freedom of individuals is
being assured if the natural environment on which their respective well-
being is concerned is being progressively diminished’.
40
Barrett J therefore provides evidence that the right to an environment
is one which exhibits qualities that find common ground with other rights
and values equally recognised in the Constitution.
C) The Courts’ Role in Recognising Unenumerated Rights
Perhaps the most interesting element of Barrett J’s conclusions in Merriman
was his description of the role of the courts in recognising unenumerated
rights. In O’Reilly v Limerick Corporation,
41
Costello J distinguished
between commutative and distributive justice, the former being an area
where the courts should intervene, while the latter being one where they
should not.
42
Implicitly disregarding this sentiment, Barrett J asserted that
the rule of law ‘is meant, amongst other matters, to protect the people from
their government, not to protect the government from the people’.
43
Barrett
J remarked further that the Constitution contemplates the existence of
unenumerated rights and that the judicial process, which has seen the
recognition of other unenumerated rights, has long been tolerated by and
participated in by the people.
44
Finally, Barrett J commented:
[I]f the rule of law, in the form contemplated and tolerated by the
people, is not to descend to the arbitrary rule of whoever comprises
38
Merriman (n 6) [244] (Barrett J).
39
McGee (n 23) 318-319.
40
Merriman (n 6) [246] (Barrett J).
41
[1989] ILRM 181, 195.
42
ibid [195] (Costello J).
43
Merriman (n 6) [257] (Barrett J).
44
ibid.
Trinity College Law Review [Vol 22
158
the current representative majority from time to time, then the only
agency available to put rights, including unenumerated
constitutional rights, between the claims of the executive or
legislative and those of so-called ‘ordinary’ people, is the judicial
branch of the tripartite government that the people have established
directly.
45
It follows, Barrett J concluded, ‘that the court may lawfully, properly, and
with due regard for constitutional propriety, proceed to recognise an existing
but unenumerated constitutional right such as that which [FIE] contends to
exist’.
46
The right to an environment therefore looks to have a solid basis for
recognition. Barrett J provided evidence of scientific consensus pointing to
the need for environmental protection and established normative grounds for
the recognition of the right to an environment through religious and secular
environmental philosophy. It is, however, his use of the interpretive
principles of the preamble, and references to other rights, which together
provide the most concrete evidence of the right to an environment being
implicitly recognised in the Constitution. Ample reason has been provided
for the judiciary to recognise this unenumerated right and its role in
upholding the rule of law.
III. A Right Without Teeth?
A) The Scope of the Right to an Environment
Barrett J dismissed concerns about the environmental right being ill-
defined,
47
maintaining that a right to an environment was one with a
definitive scope, rather than a purely idealistic concept. He maintained
however, that the precise parameters of the right do not need to be delineated
‘before the right contended for can be recognised to exist … [and that]
concrete duties and responsibilities will fall in time to be defined and
demarcated’.
48
Nevertheless, Barrett J outlined some of the questions which
may arise in determining the scope of the ‘right to an environment’. Such
questions might include, for example, whether the right imposes positive
obligations on the Government, whether it affords protection from general
45
ibid.
46
ibid.
47
Merriman (n 6) [254] (Barrett J).
48
ibid [262]-[264] (Barrett J).
2019] The Right to an Environment
159
risks or actual harms, and whether it has horizontal effect. The question as
to whether the right applies to the indoor environment, the home, and the
workplace, may also arise. Barrett J also queried what level of health the
right to an environment might protect and who might be protected by it.
49
It therefore looks set to fall to other cases to decide what sort of duties
and obligations might arise from the right to an environment, and indeed
whether they are enforceable. However, Merriman has unequivocally
determined that uncertainty as to the precise implications and content of the
right does not preclude its definitive recognition.
B) Justiciability of the Right to an Environment
The question of the justiciability of the right to an environment likely poses
the greatest challenge to its usefulness. In Merriman, Barrett J commented,
‘it is not so utopian a right it can never be enforced … once concretised into
specific duties and obligations, its enforcement is entirely practicable’.
50
However, exactly how the right to an environment can be enforced is
unclear, particularly given that the Irish courts have historically been
considerably restrained in recognising and enforcing socioeconomic
rights.
51
Such restraint is perhaps best shown in O'Reilly v Limerick
Corporation,
52
where Costello J maintained that it was not within the
purview of the court to ascertain a right to be provided with the basic
material conditions to have a certain minimum standard of living, suggesting
that such a claim ‘be advanced in Leinster House rather than the Four
Courts’.
53
Moreover, the decisions in Sinnott v Minister for Education
54
and
TD v Minister for Education,
55
both of which concerned applications for
injunctions to compel the executive to implement its own policies, displayed
a similar level of restraint. Here, the Supreme Court believed that the courts
were constitutionally precluded, save in exceptional cases, from granting
mandatory injunctions directing the executive to provide certain facilities or
services where such provisions involved decisions of distributive, as
49
ibid [254], [262]-[264] (Barrett J).
50
ibid [264] (Barrett J).
51
Gerard Hogan and others, Kelly: The Irish Constitution (5th edn, Bloomsbury Professional
2018) 150.
52
O'Reilly (n 41).
53
O’Reilly (n 41) 195.
54
[2001] 2 IR 545.
55
[2001] 4 IR 259.
Trinity College Law Review [Vol 22
160
opposed to commutative, justice.
56
Murray J defined those ‘exceptional
cases’ in TD as cases in which there is ‘a conscious and deliberate decision
by the organ of State to act in breach of its constitutional obligations to other
parties, accompanied by bad faith or recklessness’.
57
Convincing the Irish
judiciary to expand its powers of review to include the justiciability of the
right to an environment looks set to be particularly difficult, especially when
confined to the test espoused by Murray J.
Questions therefore arise as to what exactly Barrett J intended when
referring to the enforceability of the right to an environment as ‘entirely
practicable’.
58
It is conceivably an enormous task for one to prove that a
State organ consciously and deliberately, accompanied by bad faith or
recklessness, rendered the environment inconsistent with the human dignity
and well-being of citizens at large. Ireland is, however, not alone in
struggling to secure the justiciability of a constitutional right to an
environment. Similar difficulties can be seen in South Africa,
59
India,
60
and
Nigeria,
61
all of whom have a fundamental right to an environment within
their constitutions but struggle to make those rights justiciable.
62
Constitutionally recognised environmental rights are particularly
challenging to courts for various reasons. A lack of certainty exists regarding
what ‘the environment’ actually means, which may lead courts to be wary
56
Gerry Whyte, ‘The Role of the Supreme Court in Our Democracy: A Response to Mr. Justice
Hardiman’ (2006) DULJ 28 1, 1.
57
TD (n 55) 337.
58
Merriman (n 6) [264] (Barrett J).
59
In Minister of Public Works and Others v Kyalami Ridge Environmental Association and
Others 2001 (3) SA 1151 (CC), the Constitutional Court of South Africa ‘neglected to interpret
the environmental right where the facts and circumstances begged for this right to be applied
in a concrete way.’ Louis J Kotzé and Anél du Plessis, ‘Some Brief Observations on Fifteen
Years of Environmental Rights Jurisprudence in South Africa’ (2010) 3(1) Journal of Court
Innovation 157, 169.
60
Article 37 of the Indian Constitution expressly declares that ‘[t]he provisions contained in
[Part IV] shall not be enforceable by any court’, thus removing any justiciability of the State’s
duty of ‘protection and improvement of environment…’ contained in Part IV, Article 48A of
the Indian Constitution.
61
In Okpala v Shell Petroleum Development Company No. FHC/PHC/C5/518/2006, for
example, a federal High Court refused to acknowledge that an enforceable right to an
environment was contained in the Nigerian Constitution or in the African Charter on Human
and Peoples Rights, despite Section 20 of the Nigerian Constitution expressly obliging the state
to ‘protect and improve the environment and safeguard the water, air, land, forest and wildlife’.
62
Kyle Burns, ‘Constitutions & the Environment: Comparative Approaches to Environmental
Protection and the Struggle to Translate Rights into Enforcement’ (2017) Vermont Journal of
Environmental Law
approaches-environmental-protection-struggle-translate-rights-enforcement/> accessed 2
January 2019.
2019] The Right to an Environment
161
of an expansive approach to the enforcement of environmental rights.
Furthermore, unlike other socioeconomic rights such as housing or medical
care, ‘the environment’ can be a very abstract concept: in essence, anything
that happens in society can have implications for the environment.
63
The recognition of the right to an environment by Barrett J is a
welcome one. However, unless significant changes are to occur in the
courts’ interpretation of the justiciability of socioeconomic rights in general,
the effects of the right to an environment are likely to be minimal. Moreover,
the likelihood of the right to an environment having a bearing on
environmental policy is questionable, given the courts’ reluctance to compel
the executive to not only implement policies it deems necessary to uphold
socioeconomic rights, but which the executive may also deem as such.
However, as will now be examined, climate change litigation alters
the circumstances in which traditional cases seeking to uphold the right to
an environment might present themselves.
IV. Climate Change Litigation and its Potential Influence
on Ireland
An increasing sense of global urgency and public awareness around climate
change-related risks, along with developments in national laws and
international commitments, means that litigation related to climate change
is an emerging global trend, especially in domestic courts. Courtrooms are
quickly becoming a key battleground in the climate change debate, with
scientific evidence now being incorporated into determinations of potential
duties of care. This provides an alternative for those seeking both to
demonstrate responsibility for climate change risks and to put pressure on
governmental and non-governmental actors to act on promises made to
mitigate such risks.
A 2017 study by the UN Environment Program and Columbia
University’s Sabin Center for Climate Change Law reported that there were
close to 900 litigation cases in 24 jurisdictions across the world.
64
As of
February 2019 there are reportedly over 1,200 climate litigation cases
63
Erin Daly, ’Constitutional Protection for Environmental Rights: The Benefits of
Environmental Process’ (2012) 17(2) International Journal of Peace Studies 71, 73.
64
United Nations Environment Programme, ’The Status of Climate Change Litigation – A
Global Review’ (May 2017), 10
?sequence=1&isAllowed=y> accessed 22 December 2018.
Trinity College Law Review [Vol 22
162
globally.
65
Despite the growth of this phenomenon, the vast majority of these
cases are in the US and in fact, most countries have experienced no climate
change litigation at all.
66
Climate litigation claims are typically private, tort-based claims
levelled against companies or local authorities. However, a trend has
emerged whereby petitioners are increasingly employing rights-based
claims against national governments in climate change lawsuits, and courts
are growing more receptive to this framing.
67
Thus, Friends of the Irish
Environment CLG v The Government of Ireland, Ireland and the Attorney
General,
68
a case currently awaiting judgment in the High Court, seeks to
quash the approval of the National Mitigation Plan because ‘absent of any
or any adequate mitigation measures, it is unreasonable, unconstitutional
and in breach of human rights law’.
69
In its submissions, the applicant claims that measures in the National
Mitigation Plan do not enable the State to satisfy its international or EU law
70
Moreover, the National
Mitigation Plan is ‘not calculated to achieve substantial emission reductions
in the short- or medium-term by 2020 and 2030 and that means (an)
unacceptable risk of contributing to global warming of 2 to 3 degrees and
breach of the Constitution and European Court of Human Rights’.
71
This,
the applicant claims, means that that the National Mitigation Plan ‘fails the
test of lawfulness’ and must be re-cast.
72
65
Sabin Center for Climate Change Law,
p://climatecasechart.com/about/> accessed 17 February 2019.
66
Gerrard & Wilensky, ‘The role of the national courts in GHG emissions reductions’ in Daniel
A Farber and Marjan Peeters (eds), Climate Change Law (1st edn, Elgar Encyclopedia of
Environmental Law 2016) 365.
67
Jacqueline Peel and Hari M Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018)
7(1) Transnational Environmental Law 37, 40.
68
Case No. 2017/793 JR.
69
Aodhan O'Faolain, ‘Government’s plan to combat climate change flawed, High Court told’
The Irish Times (Dublin, 23 October 2017)
law/courts/high-court/government-s-plan-to-combat-climate-change-flawed-high-court-told-
1.3266389> accessed 12 February 2019.
70
Mary Carolan, ‘Ireland completely off course’ in meeting carbon reduction targets – court
told’ (Irish Times, 22 January 2019)
law/ireland-completely-off-course-in-meeting-carbon-reduction-targets-court-told-
1.3766634> accessed 12 February 2019.
71
Kevin O’Sullivan, ‘Citizen’s rights threatened by State’s climate change plan, court told’ The
Irish Times (23 January 2019)
rights-threatened-by-state-s-climate-change-plan-court-told-1.3768402> accessed 12 February
2019.
72
ibid.
2019] The Right to an Environment
163
The applicant is keenly aware of the non-justiciability doctrine
operating as a potential roadblock to its challenge, but nonetheless contends
that the claim is justiciable, and that they are not impermissibly advancing a
‘prescribed policy’ and seeking to impose a positive obligation on the State.
Furthermore, the applicant argues that it is not demanding that public funds
should be spent in a particular way. Rather, the applicant contends that it is
asking for an unlawful policy to be quashed and re-cast as ‘it does not
contain the measures to vindicate the constitutional rights and human rights
of the applicants and the citizens of this jurisdiction’.
73
However, the respondents submitted that the court does not have
jurisdiction to mandate a new policy. They claim that this act would require
the judiciary to breach the separation of powers and exercise an executive
function. Should the courts accept this claim, they would be following the
Supreme Court decisions in TD and Sinnott, which specifically prohibit the
courts from mandating the executive to fulfil a specific policy. Furthermore,
the respondents contend that the National Mitigation Plan does not create
the risks identified by the applicant, nor has the applicant’s right to life, to
bodily integrity or to an environment been infringed.
74
The lack of domestic case law dealing with climate change litigation
will certainly force the High Court to tread new ground in this emerging area
of law. Friends of the Irish Environment looks set to not only provide an
insight into what role, if any, the Irish courts may play in climate change
litigation, but also what role the newly recognised right to an environment
may have in Irish jurisprudence.
A) Climate Change Litigation in Other Jurisdictions
The scarcity of domestic case law may also cause the Irish courts to take
stock of recent developments in other national courts faced with cases of a
similar nature. Though such cases perhaps represent a judiciary more active
than typically seen in Ireland, there are several arguments raised in them
which could lead the Courts to take a bolder approach than anticipated.
Evidence of this can, in some respects, already be found in Irish
jurisprudence.
75
73
ibid.
74
Kevin O’Sullivan, ‘Group seeks ‘hugely onerous climate-change obligations’, court hears’
The Irish Times (24 January 2019)
seeks-hugely-onerous-climate-change-obligations-court-hears-1.3769739> accessed 12
February 2019.
75
O'Brien and Others v Wicklow Urban District Council & Wicklow County Council [2000]
WJSC-HC 4988; For further discussion see section 4.3.
Trinity College Law Review [Vol 22
164
Urgenda Foundation v Kingdom of the Netherlands
76
saw a Dutch
environmental group, the Urgenda Foundation, along with 886 Dutch
citizens, compel the Dutch government to take more ambitious action in
mitigating the effects of climate change. In 2015, the District Court of The
Hague ruled that the Netherlands must limit carbon emissions to 25 per cent
below 1990 levels by 2020,
77
finding the government's existing pledge to
reduce emissions insufficient to achieve the UN target of limiting global
temperature increases to no more than two degrees Celsius. In October 2018,
this judgment was upheld by the Appeals Court of The Hague,
78
which has
now been appealed by the Dutch government.
79
Less publicised than Urgenda, Leghari v Federation of Pakistan
80
was
perhaps a more innovative and transformative decision.
81
Here, a Pakistani
farmer successfully argued that the inaction, delay, and lack of seriousness
of the national government in implementing the National Climate Change
Policy of 2012 and the Framework for Implementation of Climate Change
Policy (2014-2030) breached the right to life contained in Article 9 of the
Pakistani Constitution. The High Court of Lahore subsequently issued an
order which directed multiple government ministries, departments, and
authorities to nominate a climate change focal person to help ensure the
implementation of the relevant policy and framework. In addition, the High
Court of Lahore directed those individuals to compile a list of adaptation
goals that could be achieved by 31 December 2015, and established a climate
change commission to assist the courts in monitoring the progress of this
policy implementation.
82
These decisions demonstrate levels of judicial activism certainly not
seen in the Irish courts and not likely to be seen anytime soon given the
courts’ reluctance in Sinnott and TD to mandate executive policy. Still, while
76
Urgenda Foundation v. Kingdom of the Netherlands, C/09/456689 / HA ZA 13-1396,
Decision of 24 June 2015; an English translation is available at
ak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196> accessed 22 December 2018.
77
ibid [5.1].
78
The State of the Netherlands v Urgenda Foundation (2018) Hague Court of Appeal, Civil
Law Division 09-10-2018, Case number: 200.178.245/01; an English translation is available
at:
accessed 22 December 2018.
79
Government of the Netherlands, State to bring cassation proceedings in Urgenda case
urgenda-case> accessed 22 December 2018.
80
Ashgar Leghari v Federation of Pakistan (W.P. No. 25501/2015), Lahore High Court Green
Bench, Orders of 4 September and 14 September 2015,
ri.090415_0.pdf> accessed 22 December 2018.
81
Peel and Osofsky (n 67) 52.
82
Leghari (n 80) [6]-[7].
2019] The Right to an Environment
165
mandatory orders of this nature are unlikely to be handed out, Irish courts
may be forced to act in some way in upholding the right to an environment.
B) Climate Change as Posing a Grave Risk to the Planet
The overwhelming body of scientific evidence suggests that climate change
is a phenomenon which is already causing, and will continue to cause, grave
damage to the environment on which we all depend.
83
The most recent report of the Intergovernmental Panel on Climate
Change (IPCC) concludes that ‘any increase in global warming is projected
to affect human health, with primarily negative consequences’.
84
More
specific to Ireland, a 2017 report by the Environmental Protection Agency
observed that ‘climate change is likely to alter risks to public health and
well-being in Ireland’
85
with increases in heatwave-related health impacts,
flood-related health impacts, changes in patterns of food-borne disease, an
increase in the burden of water-borne disease and an increase in the
frequency of respiratory diseases.
86
Additionally, climate change will cause
sea level increases in the west of the UK and Ireland, and will increase levels
of water discharge from rivers in Northern Europe, including Ireland.
87
This evidence has not gone unrecognised in climate change cases in
national courts. The Lahore High Court in its order saw climate change as
‘a defining challenge of our time (that) has led to dramatic alterations in our
planet’s climate system, (which for Pakistan) have primarily resulted in
heavy floods and droughts, raising serious concerns regarding water and
83
European Academies’ Science Advisory Council, ‘Extreme weather events in Europe’
(March 2018) 5
Extreme_Weather_Events_March_2018_FINAL.pdf> accessed 12 February 2019; Uhe and
others, ‘Comparison of methods: Attributing the 2014 record European temperatures to human
influences’ (2016) 43 Geophysical Research Letters 8693; Pall and others, ‘Anthropogenic
greenhouse gas contribution to flood risk in England and Wales in autumn 2000’ (2011) 470
Nature 385.
84
Intergovernmental Panel on Climate Change, ’Special Report on 1.5°C: Summary for
Policymakers’ 11 .ch/sr15/pdf/sr15_spm_final.pdf> accessed 2 January
2019.
85
Margaret Desmond, Phillip O’Brien and Frank McGovern, ’A Summary of the State of
Knowledge on Climate Change Impacts for Ireland’ (2017) EPA Report n 223, 28
January 2019.
86
ibid 29.
87
Intergovernmental Panel on Climate Change Working Group II, Climate Change 2014:
Impacts, Adaptation, and Vulnerability (Cambridge University Press 2014) 1279.
Trinity College Law Review [Vol 22
166
food security’.
88
Indeed, the Irish courts have already recognised the risks
posed by climate change. Barrett J in Merriman remarked, ‘members of
(FIE), and by extension the wider population, are equally at risk, in terms of
their bodily integrity, from the global and local and accelerating degradation
of our environment’
89
and that evidence pointing to the projected effects of
climate change ‘can in truth leave no doubt … that climate change poses a
real and immediate risk to, at least the bodily integrity of members of (FIE),
as well as to citizens more generally’.
90
C) Government Inaction
In addition to their responsiveness to evidence of climate change and its
consequences for the planet, national courts have been accommodating of
evidence pointing to Government inaction in implementing policies which
mitigate the effects of climate change.
In its case against the Dutch Government, Urgenda accepted that
climate change is a global issue, not merely affecting the Netherlands.
Urgenda also accepted the relatively low level of influence the Netherlands
has in fighting climate change, and that Dutch emissions are comparatively
minor when compared to the rest of the world.
91
Still, they claimed that the
State ‘is doing too little to limit the effects of greenhouse gas emissions and
that it should assume its responsibility’.
92
Similarly, in Leghari, the High Court of Lahore criticised ‘the delay
and lethargy of the State’ in implementing the national climate policy
framework, which it said, ‘offends the fundamental rights of the citizens
which need to be safeguarded’.
93
Much like other climate change cases, there is substantial room for
improvement in the government’s policy to mitigate the effects of climate
change. In May 2018, the Environmental Protection Agency confirmed that
Ireland will, at best achieve a 1 per cent reduction in greenhouse gas
emissions by 2020, compared to a target of 20 per cent.
94
Additionally, the
Irish Climate Change Advisory Council has noted that ‘without major new
88
Leghari (n 80) [6].
89
Merriman (n 6) [244] (Barrett J).
90
ibid.
91
Urgenda (n 78) 28.
92
Urgenda (n 78) 28.
93
Leghari (n 80) [8].
94
Environmental Protection Agency, ‘We need to move away from fossil fuels, EPA
emissions projections show’ (31 May 2018)
ressreleases2018/name,64049,en.html> accessed 1 January 2018.
2019] The Right to an Environment
167
policies and measures’ Ireland will both miss its medium and long-term
(2030/2050) EU climate targets and will make compliance with these targets
an incredibly difficult task for future generations.
95
In Urgenda, the Appeals Court of The Hague felt ‘obliged to apply
provisions with direct effect of treaties to which the Netherlands is party,
including Articles 2 and 8 ECHR … (as) such provisions form part of the
Dutch jurisdiction and even take precedence over Dutch laws that deviate
from them’.
96
This was so despite the claim of the Dutch government that it
is up to the State to decide policy and that the State must consider all interests
involved when allocating resources. It was argued the trias politica
precluded the Courts from enforcing its own policy.
97
Thus, the Appeals
Court of The Hague avoided a larger discussion on the separation of powers,
and while this might be due to the anomaly of judicial review under Dutch
constitutional law,
98
the fact that Irish climate policy is failing to meet its
targets still does not provide sufficient grounds for the courts to intervene in
the same fashion, as the decisions in Sinnott and TD both show.
However, as Denham J claimed in her dissent in TD, if there has been
a clear disregard by the Government of its powers and duties, the courts are,
by virtue of their role as guardians of the Constitution, not only entitled but
obliged to intervene in such circumstances.
99
Indeed, this expansive
understanding of the judiciary’s role has been taken by the Irish courts in the
past. Despite his judgment in O’Reilly,
100
Costello J in O'Brien v Wicklow
UDC
101
held that the plaintiffs enjoyed a constitutional right to bodily
integrity which was being infringed by the conditions in which they were
forced to live. As Whyte observes, the fact that the same judge should, at a
later date, adopt such a view lends weight to the argument that ‘judicial
intervention … [where] pressing needs are studiously ignored by the
95
Climate Change Advisory Council, Annual Review 2017 (November 2017) iii
imatecouncil.ie/media/ClimateChangeAdvCouncil_AnnualReview2017FINAL.pdf> accessed
2 January 2019.
96
Urgenda (n 78) 69.
97
Urgenda (n 78) 30.
98
Article 120 of the Dutch Constitution provides that ‘The constitutionality of Acts of
Parliament and treaties shall not be reviewed by courts’, thus the judiciary can only review laws
against the equivalents of these constitutional rights that are contained in European and
international law pursuant to Articles 93 and 94 of the Dutch Constitution.
99
TD (n 55) 301.
100
O’Reilly (n 41).
101
O'Brien (n 75).
Trinity College Law Review [Vol 22
168
political process can be defended as both constitutionally and politically
legitimate’.
102
D) The Impact of other Fundamental Rights
Although the right to an environment will certainly play an important role
in any climate change case, it goes without saying that other personal rights
play an equally important role, as Barrett J noted when recognising the right
to an environment in Merriman.
103
Similarly, in Leghari, the High Court of
Lahore cited other ‘fundamental rights’, namely the right to life which
includes the right to a healthy and clean environment, and the right to human
dignity. References were also made to constitutional principles of
democracy; equality; and social, economic, and political justice.
104
However, even if the right to an environment can support a climate
change case, and if the courts are also willing to embark on a more expansive
review of its powers, other questions remain. It is still unclear whether the
government has breached its duties to uphold the right to an environment,
and what obligations it must fulfil in order to uphold such a right. Some
positive obligations do exist in the Constitution. As Whyte observes, ‘while
it is certainly the case that most of the fundamental rights protected by the
Constitution operate as “negative immunities” or as a shield against the
potentially oppressive acts of the State, this is not the case with all such
rights’.
105
Article 42.4 for example, contains an affirmative right to basic
education for children. Whyte continues, ‘it follows that the duty of the
courts to uphold constitutional rights is not limited to protecting the citizen
from wrongful action by the State but may also require the court, in
appropriate circumstances, to address the consequences for constitutional
rights of State inaction’.
106
In this regard, Whyte cites Hardiman J in Sinnott,
where he conceded that the courts retain a residual necessary discretion to
deal with an admittedly extreme hypothetical scenario in which the State had
ceased to make any financial provision for primary education.
107
However,
while the courts may hold that certain breaches of fundamental rights entitle
102
Gerry Whyte, Social Inclusion and the Legal System: Public Interest Law in Ireland (2nd
edn, Institute of Public Administration 2015) 107.
103
Merriman (n 6) [262]-[263] (Barrett J).
104
Such constitutional principles were said to include “international environmental principles
of sustainable development, the precautionary principle, environmental impact assessment,
inter- and intragenerational equity and the public trust doctrine”; Leghari (n 80) [7].
105
Whyte (n 56) 4.
106
ibid.
107
Sinnott (n 54) 709-710.
2019] The Right to an Environment
169
them to impose positive obligations and duties on the government, it is
unlikely that the right to an environment would be the first of the
unenumerated rights to be interpreted in this way.
Although the right to an environment is unlikely to impose positive
obligations on the part of the government to effectively mitigate the effects
of climate change, there are other rights – namely the right to life – which
could prove to be much more effective. In October 2018, the UN Special
Rapporteur on Human Rights and Environment, David R Boyd, stated that
‘The Government of Ireland has clear, positive, and enforceable obligations
to protect against the infringement of human rights by climate change’.
108
He further argued that a failure to prevent foreseeable human rights harms
caused by climate change, or at the very least to mobilise maximum
available resources in an effort to do so, would constitute a breach of this
obligation.
109
Such obligations are said to arise from Ireland’s membership
of the 1992 UN Framework Convention on Climate Change, the 2015 Paris
instruments to which it is a party.
110
Still, it should be noted that in Friends
of the Irish Environment, MacGrath J refused the admission of this statement
as evidence in the case, on the basis that inter alia the author ‘does not have
sufficient expertise to entitle him to express a view on international or
national law’.
111
Boyd’s contention that the Government is liable for failing to prevent
foreseeable human rights harms is particularly interesting. A 2018 report by
the American Meteorological Society provides a comprehensive analysis of
extreme weather events which can be attributed to climate change. In
particular, the report highlights the intense marine heatwaves in the Tasman
Sea in 2017 and 2018 which, it claims, were ‘virtually impossible’ without
human-caused climate change.
112
Questions therefore arise as to how direct
attribution of extreme weather events to climate change might affect the
foreseeability of human rights harms, and whether governments can be held
directly liable for the harms caused by extreme weather. One might wonder
108
David R. Boyd, Statement on the human rights obligations related to climate change, with
a particular focus on the right to life (United Nations Human Rights Special Procedures, 25
October 2018) 59
onment25Oct2018.pdf> accessed 1 January 2019.
109
ibid 53.
110
ibid 47-50.
111
Friends of the Irish Environment v Ireland [2018] IEHC 740, [22].
112
Perkins-Kirkpatrick et al, ‘The role of natural variability and anthropogenic climate change
in the 2017/2018 Tasman Sea marine heatwave’ (2018) Bulletin of the American
Meteorological Society 55.
Trinity College Law Review [Vol 22
170
if litigants might convince a court, let alone an Irish one, to extend the
liability of governments to foreseeable climate disaster risks and harms.
113
While climate change cases are therefore more likely to succeed on
the basis of other fundamental rights, this may not mean that the right to an
environment is to be left by the wayside. Perhaps the most novel aspect of
the Court’s judgment in Leghari was its identification of ‘a principle of
climate change justice’.
114
Past traditions of environmental justice, it said,
were ‘largely (localised) and limited to our own ecosystems and
biodiversity, (and needed) to move to climate change justice’.
115
Ultimately
it saw fundamental rights – that is, the ‘right to life … human dignity …
property and … information’ – as lying at the foundation of these two
overlapping justice systems.
116
Therefore, while the Irish courts might well analyse each individual
right separately, there is potential for uniformity in assessing all rights
affected by climate policy, as the High Court of Lahore has neatly done. In
this regard a ‘principle of climate change justice’ might encompass elements
of the right to life, the right to bodily integrity and the right to an
environment, all of which are contained in the Constitution.
E) The Role of a Developed Nation
One of the more interesting arguments raised in Urgenda cited the
Netherlands’ status as a developed nation, which might also find favour in
the Irish courts. Urgenda claimed that ‘it deserves further attention that the
Netherlands, as a highly developed country, has profited from fossil fuels
for a long time and still ranks among the countries with the highest per capita
greenhouse gas emissions in the world. It is partly for this reason that the
State should assume its responsibility’.
117
Indeed the Appeals Court of The
Hague accepted that it was ‘partly for this reason that the State should
assume its responsibility’.
118
This is perhaps an issue which warrants discussion by the Irish courts.
The ‘principle of common but differentiated responsibilities’ is an important
principle of international environmental law, included in Principle 7 of the
113
Peel and Osofsky (n 67) 64.
114
Leghari (n 80) [7].
115
ibid.
116
ibid.
117
Urgenda (n 78) 28.
118
ibid 66.
2019] The Right to an Environment
171
Rio Declaration on Environment and Development
119
and Article 3(1) of the
120
to which Ireland is party. Moreover, the Courts might well accept that as a
responsibility to mitigate as a developed country, than other countries not
included in Annex 1. This concept was indeed confirmed by the Appeals
Court of The Hague in Urgenda.
121
As a country which has achieved considerable economic prosperity,
and which has made use of its natural resources in peat and gas, Ireland
clearly has a responsibility to mitigate climate change. An Irish court might
agree that Ireland has acknowledged the severity of climate change and its
comparatively higher level of responsibility for mitigation, and might
therefore call for greater action than is currently being taken.
Conclusion
In Merriman
122
Barrett J made a justified and well-assessed recognition of
the right to an environment. In doing so, Ireland has caught up with other
environmentally-conscious nations and with international environmental
law. Though the right to an environment is a welcome addition to the
unenumerated rights doctrine, it certainly remains to be seen what, if any,
effect it might have on those it could protect. Moreover, one seeking to use
the right to an environment to challenge or enforce government policy will
likely encounter substantial reluctance on the part of the courts to mandate
executive action. Concerns regarding the separation of powers are certainly
legitimate, and indeed under ordinary circumstances, one should, in the
words of Costello J in O’Reilly, seek to advance claims in Leinster House
rather than the Four Courts.
123
But these are no ordinary circumstances. Climate change is a
phenomenon which will alter the environment dramatically. Despite
Ireland’s relatively small size and role in mitigating its effects, the country
is not immune to climate change, nor are the Irish courts immune to litigation
pertaining to it. In attempting to mitigate the effects of climate change, the
119
Principle 7 states ‘In view of the different contributions to global environmental degradation,
States have common but differentiated responsibilities’.
120
Article 3(1) states ‘The Parties should protect the climate system for the benefit of present
and future generations of humankind, on the basis of equity and in accordance with their
common but differentiated responsibilities and respective capabilities.’
121
Urgenda (n 82) 72.
122
Merriman (n 6).
123
O’Reilly (n 41) 195.
Trinity College Law Review [Vol 22
172
government’s climate policy has largely been a failure.
124
While a legal
challenge to the government’s policy would probably be met with
contentions against judicial action being taken, persuasive arguments and
landmark decisions can be seen in two cases of a similar nature in other
jurisdictions. Though the Irish courts are unlikely to explicitly follow these
cases, if the public’s concerns are continually ignored in the Irish political
process, cases such as Urgenda might become more influential. The
arguments in favour of the right to an environment being used to demand
the government do more in the way of climate policy are therefore quite
clear. It remains to be seen whether the Irish courts will take the same view.
124
Press Association, ‘Ireland falling way behind on climate change action, admits Taoiseach’
(Irish Examiner, 31 December 2018)
climate-change-action-admits-taoiseach-894748.html> accessed 2 January 2019.
To continue reading
Request your trial