What Specific Content could Substantial and Procedural Environmental Rights have if Incorporated by Referendum in the Irish Constitution?
| Date | 01 January 2024 |
| Author |
115
What Specic Content could Substantial
and Procedural Environmental Rights
have if Incorporated by Referendum in
theIrishConstitution?
JULIÁN SUÁREZ*
Introduction
e report of the Citizens’ Assembly on Biodiversity Loss (‘CABL’) was published
on 5 April 2023. It recommended to the Government, among other things, to
hold a referendum to amend the Constitution in order to include substantive and
procedural environmental rights. ese include both substantial – the right to a
healthy environment, the right to a stable and healthy climate and the rights of
future generations to these prerogatives – and procedural rights such as the ones in
the Aarhus Convention.1
e recommendations are very short in draing and have not expanded on the
specic content of any of these rights. ey are proposed with the view of protecting
nature as a necessary ecosystem services provider for people and of guaranteeing this
generation and the ones to come access to a clean, safe and healthy environment.2
e expected result for these specic recommendations, alongside a total of 159
recommendations in many other areas, was for the Houses of the Oireachtas to
refer them for consideration to a relevant Committee in both the Dáil and the
Seanad. e Committee would, in turn, bring its conclusions to both parliament
houses for debate, with the Government providing responses about whether it will
accept some or all of the proposed recommendations.3 If the Government accepts
the recommendation of the CABL on expressly providing for these environmental
rights in the Constitution, it would have to indicate the expected timeframe for
activating the mechanism set out in Articles 46 and 47. Despite mixed praise and
criticism, there is the general view that Citizen Assemblies can be a catalyst for
constitutional change, albeit a limited one.4
* PhD Candidate, UCC School of Law. Corresponding author: julian.suarez@umail.ucc.ie. I would
like to thank Prof. Owen McIntyre for his valuable and unconditional support. All opinions here
are solely my own.
1Citizens’ Assembly on Biodiversity Loss, Report of the Citizens’ Assembly on Biodiversity Loss (2023) 16.
Citizens’ Assembly on Biodiversity Loss (n 1) 16.
3Citizens’ Assembly on Biodiversity Loss, ‘Terms of Reference’ (2023)
citizens-assembly-on-biodiversity-loss/terms-of-reference/> accessed 7 July 2023.
4Oran Doyle and Tom Hickey, Constitutional Law: Text, Cases and Materials (2nd edn, Clarus Press
2019) 6–82.
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By 28 June 2023, the Chair of the CABL had briefed the TDs and Senators
of the Joint Committees on Housing, Local Government and Heritage, and
Environmental and Climate Action on the Assembly’s report. e Chair also
referred the report to these committees for further examination, given that several
other recommendations need implementation through legislation falling under
their remit.5
On 14 December 2023, the country learned that the Joint Oireachtas Committee
on Environment and Climate Action had published its report on the examination
of the CABL’s recommendations. Aer holding a series of engagements that
summoned Irish and international stakeholders, the Committee suggested that
‘[t]he Government begin the preparatory steps to consider a referendum or
referenda within the lifetime of the current Dáil, which includes the establishment
of an expert group with resources to design and dra the potential question or
questions.’6 Furthermore, the Committee made two additional recommendations.
First, that the expert group includes and considers the experience of other
jurisdictions that have included environmental rights and/or rights of nature
in their constitutions. And second, that a robust public awareness campaign in
advance of the constitutional reform process is front-loaded to avoid the spread of
misinformation and to encourage public debate on biodiversity.7
is paper will follow up on the recommendations of the CABL regarding
constitutional reform to include, in particular, the right to a healthy environment
and broader standing for nature within the Irish jurisdiction. To start, the paper
will attempt to explain that the right to a healthy environment and access to
environmental justice in defence of public interest are framed in a human-rights
based approach to environmental protection. Aerwards, the paper will try
to put into perspective the Irish experience regarding this type of approach to
environmental protection. First, this article will outline the experience in Irish
law regarding the incorporation of the rights to a healthy environment and
broader standing for nature. Second, it will briey address the problem of lack of
enforcement of both human rights and existing environmental law.
Finally, considering the legal context in which human rights-based approaches
would be incorporated in this jurisdiction, this paper will propose two possible
pathways for the entrenchment of these rights through a constitutional amendment.
On the one hand, regarding the right to a healthy environment, this article
proposes to include a right with some specic content in line with international
5Houses of the Oireachtas, ‘Joint Committees on Housing, Local Government and Heritage,
and Environment and Climate Action hold brieng on Final Report of Citizens’ Assembly on
Biodiversity Loss’ (Houses of the Oireachtas Press Releases, 28 June 2023)
mw8ess7b> accessed 7 July 2023.
6Joint Committee on Environment and Climate Action of the Oireachtas, Report on the examination
of recommendations of the Citizens’ Assembly report on biodiversity loss (33/JCECA/15, 2023) 41–42.
7 ibid.
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Specic Content could Substantial and Procedural Environmental Rights 117
environmental law and governed by a few basic principles. Concerning the right
of access to environmental justice in defence of public interest, on the other hand,
the paper proposes incorporating public interest for the environment as a dierent
type of interest entitled to legal standing, with mechanisms to judicially control the
seriousness of claims.
Human Rights-Based Environmental Protection Within the
IrishContext
Human rights-based approaches in environmental protection are understood
as the use of standards, principles and obligations of human rights to design and
evaluate legislation, policies and programs for achieving environmental goals.8
ese approaches have been used by the United Nations Environment Programme
(‘UNEP’) as an operational tool to realise the potential of promoting policy
coherence, legitimacy and sustainable outcomes in ecosystem-based adaptation
in developing contexts to the consequences linked with climate change.9 is
approach entails identifying rights-holders and duty-bearers, setting out relevant
rights and obligations, considering intra and intergenerational equity, and assessing
the capacity of rights-holders to claim their rights, and of duty-bearers to full their
obligations.10 Under this approach, a healthy environment is a precondition for
the fullment of other rights that should, in turn, be ensured through procedural
prerogatives. In conclusion, this type of approach places people – groups and
individuals – at the centre of the policy-making process, and they showcase the
indivisible, interdependent and interrelated nature of human rights.11
Human rights-based environmental protection has a severely restricted scope
within the Irish jurisdiction. e judiciary chose to row back on a rst declaration
of the right to a healthy environment and to subject its validity as a constitutional
right to its insertion in the Irish Constitution, provided that it is given some specic
content. It has also established its preference for constitutional rights ‘greening’
while that constitutional amendment takes place. is would explain in some
way why the CABL proposed its recommendation to promote a constitutional
referendum.12 In regard to the right of environmental access to justice, in particular,
and Aarhus Convention rights, in general, that are decidedly conceived under a
human rights-based approach, Ireland has opted for a very conservative attitude
when it comes to incorporating them into national law. Given this legislative
8WHO, Regional Oce for South-East Asia, Human Rights-based Approach to Health and
Enironment (SEA/HHR/01, 2007) accessed 10 July 2023.
9 UN Environmental Program, Adopting a Human Rights-based Approach to Ecosystem-based
Adaptation: A Contribution to Sustainable Development (UNEP 2023) 18–20.
10UN Environmental Program (n 9) 18–20.
11World Health Organisation (n 8) 1.
12Citizens’ Assembly on Biodiversity Loss (n 1) 16.
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decit in environmental procedural rights, the courts have of late taken the lead
and secured, specically, Ireland’s EU law obligation to assure the ‘wider access to
justice’ objective when interpreting national law in such matters.
e current situation of the right to a healthy environment and Aarhus rights in
Irish law
e right to a healthy environment
From a substantive environmental rights perspective, there is currently no
constitutional or statutory provision in Irish legislation providing for the protection
of the interdependence between human rights and the environment.
In Fingal County Council, the High Court had recognised, using judicial restraint,
‘an enumerated constitutional right to an environment that is consistent with the
human dignity and well-being of citizens at large’ as ‘an essential condition for the
fullment of all human rights.’13 at judicial restraint clearly manifested itself in
Barret J’s reluctance to engage in ‘pre-identifying and resolving’ issues related to the
substantive content and scope of the right when recognising it.14 It was nonetheless
characterised in the judgment as an ‘indispensable existential right that is enjoyed
universally’ and as a personal right of the citizens protected under Article 40.3.1˚
of the Constitution.
e judge recognised the right to a healthy environment on foot of two arguments.
One, that of the judiciary’s role, emanating from popular sovereignty, in upholding
the rule of law as ‘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.’ And the other, that the acknowledgement of (i) an
alleviation of the historical exploitative approach towards the environment, and
(ii) a rising public concern about environmental degradation and the threat posed
to quality of life by the processes yielding it, justies the exercise of the judiciary’s
powers to proceed to the recognition of the right.15 More importantly, Barrett J
suggested forgoing the constitutional rights ‘greening’ technique16 to protect
13Merriman & Ors v Fingal County Council & Ors, and Friends of the Irish Environment v Fingal
County Council & Ors [2017] IEHC 695 [264] (Barrett J).
14Merriman & Ors (n 13) [254].
15ibid [257] and [261].
16 e gateway norms for ‘greening’ human rights within the European human rights system, from
where this trend hails, have been the right to privacy and home life enshrined in articles 2 and 8
of the ECHR. For example, in the landmark Guerra case, the ECtHR held that there had been a
violation of article 8 of the Convention due to environmental harm. According to the Court, the
escape of the gases produced in the fertiliser factory, that caused acute arsenic poisoning to the
applicants, had aected their well-being and had prevented them from enjoying their homes in such
a way as to aect the aforementioned human right. e Italian State had failed to provide access
to essential information regarding whether to continue living in that area, which had already been
previously exposed to accidents of the fertiliser factory. Guerra and others v Italy (1998) 26 EHRR
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Specic Content could Substantial and Procedural Environmental Rights 119
individual interests aected by the eects of environmental degradation, such as
the right to life, the right to health or even the right to work. On the one hand, in
his view, this type of protection had a very limited scope – ‘[t]hese rights are capable
of supporting individual claims in particular environmental situations.’ On the
other hand, the right to a healthy environment, as proposed by the High Court, was
‘continuously informing or underpinning those individual protections’, even though
the right could be perceived to have been to some extent obscured by them.17
However, the Supreme Court held, inthe Climate Case Ireland judgment, that
the right to a healthy environment recognised in Fingal County Council was
‘impermissibly vague’, ‘ill-dened’, and ‘superuous or lacking in precision.’18 Clarke
CJ established that if a right to an entitlement to an environment consistent
with human dignity should be derived from the Constitution instead of being
unenumerated,as the term carries a risk of perceiving the task of the courts in
identifying those rights as highly subjective, it could only stem from ‘some root
of title’ in other express rights and obligations, values. For example, dignity, or
structure, or the democratic nature of the State, or a combination of them, once the
Constitution was considered as a whole. Otherwise, the task of identifying such
rights would make away for an encroachment on the separation of powers.19
In the Justice’s view, even so, the right to a healthy environment in those terms
faced many diculties in its recognition. Among these is the impossibility of being
distinguished as a ‘standalone and separate rights derived from the Constitution’
and being thus perceived as an extension of the rights to life or to bodily integrity.
In that sense, Clarke CJ stressed that even though Barrett J had correctly noted
that the content of the right could be rened with the development of case law, the
Judge ought to have given some concrete shape to or provided some general clarity
about the nature of the right identied in Fingal County Council before being able
to determine whether it could be recognised as a derived right.20
357, paras 56–60. In the same sense, see: López Ostra v Spain (1994) Series A no 303-C, para
51; Fadayeva v RussiaApp no 5573/00 (ECtHR, 9 June 2005), paras 87–88; Vilnes and others v
Norway App nos 52806/10 and 22703/10 (ECtHR, 5 December 2013), paras 233–245; Cordelia
and others v Italy App nos 54414/13 and 54264/15 (ECtHR, 24 January 2019), paras 161–174. In
Öneryıldız v Turkey, the Court held that the right to life of the applicants’ close relatives, who were
living in an Istanbul slum, was violated by the Turkish State as the result of a methane explosion
at the municipal rubbish tip wherein their homes were located. According to the judgment, even
though local authorities could not have known risks associated with methanogenesis in the area,
they know or ought to have known the existence of that real and immediate risk prompting them
to act to protect their lives. Öneryıldız v Turkey (2005) 41 EHRR 20, paras 97–110. See also:
Budayeva and others v Russian Federation App Nos 15339/02, 21166/02, 20058/02, 11673/02
and 15343/02 (ECtHR, 20 March 2008), paras 147–160; Özel and others v Turkey App Nos
14350/05, 15245/05 and 16051/05 (ECtHR, 17 November 2015), paras 191–200.
17Merriman & Ors (n 13) [263].
18Friends of the Irish Environment CLG v e Government of Ireland & Ors [2020] IESC 49 [8.11]–
[8.17] (Clarke CJ).
19Friends of the Irish Environment CLG (n 18) [8.6] and [8.9].
20ibid [8.11].
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However, independent of the criticism Climate Case Ireland may bear – and
rightfully so, in this paper’s opinion21 – it is striking that Clarke CJ also hinted
at two possibilities whereby constitutional rights could protect individual interests
in environmental issues within this jurisdiction. e rst one, which sought to
counter an argument on the recognition of the right to a healthy environment in
comparative law, proposes that this right could be inserted into the Constitution
by way of constitutional amendment. is would have the advantage of not
blurring the separation of powers, since it would be ‘the subject of debate and
democratic approval.’22 e second one would be that of ‘greening’ constitutional
rights to treat environmental-related cases, such as those related to interferences
created by the eects of climate change. In those cases, Clarke CJ states that courts
would have to consider the circumstances in which environmental measures, or
the absence of them, could interfere with the constitutional rights in question. e
Chief Justice stressed that ‘[i]n indicating that I consider the asserted right to a
healthy environment to be an either unnecessary addition … or to be impermissibly
vague … , I should not be taken as suggesting that constitutional rights and state
obligations have no role to play in environmental issues.’23
e refusal to recognise the right to a healthy environment was nally crystallised
in the Irish jurisdiction with the High Court’s judgment in Coyne v An Bord
Pleanála.24 e nal nail in the con for substantive environmental rights derived
from the Constitution, this judgment made several important ndings regarding
its existence in all applicable contexts. In relation to the Irish jurisdiction, this case
applied the principles of stare decisis to nd against the existence of such rights
guided by the persuasive force of the authoritative opinion of the Supreme Court
on the matter.
Holland J discarded that any right to a healthy environment could be extracted
from articles 2 or 8 of the European Convention on Human Rights or from the
European Court of Human Rights case law.25 He did so – under a very correct
construction of the law, in this paper’s view – acknowledging that the ECtHR had
refused to recognise any right to a healthy environment within the ECHR context,
unless any Additional Protocol to the Convention had been entered into by the
21 For example, Owen McIntyre expressed his disappointment in the Supreme Court’s decision
to not recognise that the right to a healthy environment in that case would not add additional
protection beyond the rights to life and bodily integrity. is is specially so because ‘practically no
environmental jurisprudence has emerged in connection with these constitutional rights, despite
the fact that the right to bodily environment was rst recognised in 1965 and that Ireland has
in recent years experienced extensive public interest environmental litigation.’ Owen McIntyre,
‘e Irish Supreme Court Judgment in Climate Case Ireland: ‘One Step Forward and Two Steps
Back’’ (IUCN News and Events, 27 August 2020) j4f> accessed 11
July 2023.
22Friends of the Irish Environment CLG (n 18) [8.12].
23ibid [8.14].
24Coyne & Anor v An Bord Pleanála & Ors [2023] IEHC 412 (Holland J).
25Coyne & Anor (n 24) [274].
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Specic Content could Substantial and Procedural Environmental Rights 121
Member States.26 is stemmed from the Court’s judgment in Kyrtatos v Greece,27
which explicitly excluded the possibility of recognising such a right in those
conditions, and from the concurring opinion of Serghides J in Pavlov v Russia,28
brought to the attention of the High Court by the applicants themselves. Moreover,
the judge also ratied the ECtHR rule – also present in its latest case law29 – that
requires applicants, on the particular circumstances of the case, to provide reliable
evidence of the adverse and personal eects of environmental nuisances on their
right to private and family life, and of the causal link between those nuisances and
its harmful eects on the applicants’ well-being and health.30
On the other hand, Holland J refused the existence of a right to a healthy
environment identied as unenumerated or derived from the Constitution.
Furthermore, he rejected that there was any obligation arising from those
instruments in charge of the State to adopt measures against climate change by
virtue of ECHR rights or a constitutional right to a healthy environment. Even
if that obligation existed, the High Court judge stated that the State had to be
granted a broad margin of appreciation as to the choices to comply with it. Holland
J stated that the considerations in Fingal County Council and in Climate Case
Ireland on the aforementioned right, although obiter dicta, had enough persuasive
force to be held as arguments against its recognition.31 He pointed out that Barrett
J had expressed reservations about the specic content of the right, and that Clarke
CJ had set out that aectations to constitutional rights caused by environmental
harm could only be claimed by plaintis as actual, severe and proven interferences
with the rights to life or to bodily integrity.32 is was due to the fact inter alia that
‘[n]o cogent case had been made out for the identication of a derived right to a
healthy environment.’33
To sum up his ndings, Holland J stated that ‘[a]s to the constitutional claim,
theoretically as the Dublin Airport Runway [Fingal County Council] case and
FIE [Climate Case Ireland] could be considered obiter as to the posited personal
constitutional right to a healthy environment, it is open to me to nd one. But, as
obiter remarks go, the Supreme Court in FIE is of the highest possible authority (a
26ibid [264]–[265].
27Kyrtatos v Greece App no 41666/98 (ECtHR, 22 May 2003), para 52.
28Pavlov v Russia App no 31612/09 (ECtHR, 11 October 2022), paras 6 and 7 (Serghides J).
29In the recent Locascia case, for example, the ECtHR held that the fact that the extensive exposure
to waste of the applicants – for around 20 years – in breach of applicable safety standards, due to
the ‘[p]rotacted inability of the Italian authorities to ensure the proper functioning of the waste
collection, treatment and disposal services’, constituted sucient evidence in the circumstances
of a serious level of adverse eects of environmental pollution aecting their rights protected by
paras 121–122, 130–133.
30Coyne & Anor (n 24) [276].
31 ibid [294].
32ibid [290].
33ibid [294].
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unanimous court of seven). I see no reason not to follow it and every reason to do
so.’34
e importance of Holland J’s ndings in Coyne goes beyondratifying Clarke
CJ ’s obiter dicta as the law in this jurisdiction regarding the right to a healthy
environment. It points out, albeit implicitly, the existing deciencies in the
provisions of the Constitution regarding environmental conservation values. e
judge highlighted, as per Climate Case Ireland ’s obiter, that some State obligations
to protect constitutional rights might arise when, in particular and proven
circumstances, constitutional values – such as State ownership of natural resources,
property rights and the special protection of the home – were implicated.35
However, it is clear that there is no root of title whatsoever in the Constitution
that would allow any constitutional right to a healthy environment to be derived.
e 1937 text does not contain any allusion to nature or the environment or
to environmental protection duties, and subsequent constitutional reform via
referenda has passed on the opportunity to do so, contrary to the trend in other
European jurisdictions.36
Aarhus rights, and specically, the right of access to environmental justice
From a procedural environmental rights point of view, several of the Aarhus
Convention rights have been made part of Irish law through the ‘backdoor’ of
EU law. is incorporation has been recognised both by the CJEU and the Irish
courts, even though there is a legislative decit in this jurisdiction regarding the
eectiveness of procedural environmental rights. Regarding the right of access
to environmental justice, it is contended here that despite traditional reluctance,
Irish courts have been of late interpreting national legislation in accordance with
the ‘wider access to justice’ and eective remedies objectives of both the Aarhus
Convention and EU law regarding dierent areas e.g legal standing, costs and
‘applicant-shaming’ through strategic litigation against public participation
34ibid [304].
35 ibid [294].
36For example, the Belgian Constitution, dating from 1831, had an Article 7bis inserted to include
sustainable development as an objective of the Federal State, the communities and the regions,
and saw Article 23 modied in 1994 to include the right to a healthy environment as a socio-
economic right to be further regulated by statute. e Constitutional Court has established
that Article 23 contains a standstill clause that hinders regression in the protection warranted
by environmental rights. See, for example, C. const., arrêt n° 134/2023 du 19 octobre 2023,
ECLI:BE:GHCC:2023:ARR.134, B.14.3. In France, the Environmental Charter was adopted
in 2005, as a text of constitutional nature, of the same rank as the 1958 French Constitution.
e Charter incorporated, among other environmental rules, principles and values, the right to a
healthy environment, recognised by the Superior Courts as a fundamental right, that can also be
protected through injunctions before the administrative courts. See Decision no 2022-991 QPC,
(Conseil constitutionnel, 13 May 2021) ECLI:FR:CC:2022:2022.991.QPC ; BC et AC (Conseil
d’État (2nd and 7th ch) 20 September 2022) ECLI:FR:CECHR:2022:451129.20220920.
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Specic Content could Substantial and Procedural Environmental Rights 123
(‘SLAPP’). In this paper’s view, this change in direction, however, has been
decidedly incremental and still does not reect full compliance with the State’s
international obl igations in that regard .
For several scholars, Ireland’s record of incorporating Aarhus Convention rights has
been less than desirable, given the obstacle posed by the dualist nature of the State37
and little to no political appetite for adopting environmental procedural rights.38 In
recent times, several ndings by the Aarhus Convention Compliance Committee
(‘ACCC’) – a consultative body in charge of the non-compliance procedure
established by that multilateral environmental agreement regarding Ireland were
endorsed by the Meeting of the Parties (‘MOP’) at its 7th Session. Notably,
ndings in relation to the country’s failure to implement necessary legislative
measures regarding ensuring opportunities for public participation when extending
permits for activities subject to Article 6 and Annex I of the Convention, or to
decide appeals under domestic regulation to the Commissioner for Environmental
Information or the courts in a timely manner – to name a few examples.39 Even
the undergoing Planning and Development Bill 202340 – and its former dra –41,
which seeks the most complete overhaul in planning and environmental matters in
recent years, has been criticised by various sectors of Irish civil society, particularly
because some of its provisions are perceived as a hindrance to Aarhus Convention
rights.42
Be that as it may, the Aarhus Convention has been formally incorporated into
EU law by Decision 2005/370/EC. Moreover, according to the rule set out by
the CJEU in Slovak Brown Bear, the Aarhus Convention might have direct eect
where the EU has exercised its powers and adopted provisions to implement the
37McD v L & Anor [2009] IESC 81, 5 (Murray CJ). ‘e relationship between international treaties
to which Ireland is a party and national law is imbued with the notion of dualism the eect of
which nds expression in Article 29.6 of the Constitution. According to the concept of dualism, at
national level national law always takes precedence of international law… At International level, as
regards a state’s obligations, international law takes precedence over its national or internal law…’
38For Áine Ryall, for example, the Environment (Miscellaneous Provisions) Act 2011, to give eect
to certain articles of the Aarhus Convention, despite its title, seeks only to ‘align aspects of Irish
law with Convention obligations, rather than to give the force of law of specic provisions of the
Aarhus Convention in the domestic legal order.’ Áine Ryall, ‘e Relationship between Irish Law
and International Environmental Law: A Study of the Aarhus Convention’ (2018) 41 DULJ 163.
39 Meeting of the Parties to the Aarhus Convention, Decision VII/8i concerning compliance by
Ireland with its obligations under the Convention (UNECE 2021).
40Planning and Development Bill Dáil Bill 2023 (2023) 81.
41 Department of Housing, Local Government and Heritage, ‘Dra Planning and Development
2022 Bill’ (Government of Ireland, 26 January 2023).
42See Eamon Gallig an, ‘Proposed changes to the judicial review provisions under the new Planning
and Development Bill 2022’ (PELGBA Annual Conference, Dublin, 7 June 2023); Attracta
Uí Bhroín, ‘e chorus is rising on the new planning bill: e emperor has no clothes’ e
Irish Examiner (Cork, 12 May 2023); Tom Flynn, ‘Opening Statement to Joint Committee on
Housing, Local Government and Heritage Pre-Legislative Scrutiny of the Dra Planning and
Development Bill, 2022’(Joint Committee on Housing, Local Government and Heritage, 1 March
2023) accessed 10 July 2023.
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obligations which derive from it.43 e duty to apply EU Directives implementing
the Aarhus Convention with direct eect and to interpret EU law measures giving
eect to Aarhus Convention provisions in accordance to that instrument has
been recognised in Ireland by the courts, but not without recognising that the EU
itself has further complicated matters by not completely transposing the Aarhus
Convention into EU law.44 e ACCC also recently found that the EU failed to
provide access to environmental justice for challenging decisions by institutions
and bodies of the EU that contravene EU environmental law, all of which were
endorsed as well by the aforementioned Meeting of the Parties (‘MOP’).45
For the purpose of this paper, there are two EU Directives of interest giving
eect to provisions of the Aarhus Convention: one on access to environmental
Regarding access to environmental information, the CJEU has held that,
under certain limitations, the objectives of Directive 2003/4/EC must be
interpreted broadly in order to achieve its aim and purpose.48 Within the Irish
jurisdiction, this Directive has been given by the courts the status of a mandatory
interpretation reference of the European Communities (Access to Information on
the Environment) Regulations 2007–2018.49 Furthermore, the right of access to
environmental information is ‘[t]o be construed broadly and should be considered
the norm, with the exceptions applying to circumstances where those exceptions
are construed narrowly.’50
Concerning the right to public participation in environmental aairs, the CJEU
has held that participation in dierent sectoral environmental decision-making
procedures, as provided for by Directive 2003/35/EC, ‘[i]s separate and has a
dierent purpose from a legal review, since the latter may, where appropriate, be
directed at a decision adopted at the end of that procedure. erefore, participation
43 Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej
republiky [2011] ECR I-01255, para 32.
44Conway v Ireland, e Attorney General & Ors [2017] IESC 13 [2.5] (Clarke J); Kimpton Vale
Developments Ltd v An Bord Pleanála [2013] IEHC 442 [14] (Hogan J).
45Meeting of the Parties to the Aarhus Convention, Decision VII/8f concerning compliance by the
European Union with its obligations under the Convention (UNECE 2021).
46Parliament and Council Directive 2003/4/EC of 28 January 2003 on public access to
environmental information and repealing Council Directive 90/313/EEC [2003] OJ L41/26.
47Parliament and Council Directive 2003/35/EC of 26 May 2003 providing for public participation
in respect of the drawing up of certain plans and programmes relating to the environment and
amending with regard to public participation and access to justice [2003] OJ L156/17.
48Case C-279/12 Fish Legal & Shirley v Information Commissioner, United Utilities Water plc & Ors
(GC, 19 December 2013) para 35.
49Redmond v Commissioner for Environmental Information & Coillte Teoranta [2020] IECA 83
(Collins J) [4].
50Electricity Supply Board v Commissioner for Environmental Information & McKenna [2020] IECA
190 (O’Regan J) [5].
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in the decision-making procedure has no eect on the conditions for access to
the review procedure.’51 e CJEU also established that only those who have an
interest in decision-making processes of projects falling under the scope of Article 6
of the Aarhus Convention are members from the ‘public concerned’ and can legally
challenge the outcome under Article 9(2). In any case, legal challenges to a decision
under that provision cannot be conditioned to prior public participation.52 is
right, already recognised in national law for certain planning and environmental
processes, has been seen by the Irish courts as a right purported to ‘[f]acilitate
good, fully informed decision-making, it being acknowledged that the public as a
whole is one of the greatest repositories of environmental information.’53
On the other hand, regarding the right of access to environmental justice, things
get dicult for applicants of legal challenges against environmental-related
decisions. Currently, Articles 9(3) and 9(4) of the Aarhus Convention – dealing
with national procedures to legally challenge environmental-related acts and the
provision for eective, equitable, timely, and not prohibitively expensive remedies
– are deemed by the CJEU to lack direct eect.54 is means that the eectiveness
of this environmental procedural right can be ultimately complicated by the broad
margin given to Member States to incorporate it into national law.
However, the CJEU has held that national courts, in the absence of EU legislation
on procedural rules governing proceedings for safeguarding this environmental
procedural right, have to comply with two duties of harmonious interpretation
when applying national law for proceedings commenced to that eect. First, they
have to make sure that national law will provide for those rules and will ensure that
rights are eectively protected in each case, and that they are compliant with the
right to an eective remedy and to a fair hearing enshrined in Article 47 of the
EU Charter of Fundamental Rights. ose rules must respect the EU principles
of equivalence and eectiveness as well.55 Second, they must also interpret its
national law in a way which, to the fullest extent possible, is consistent both with
the Convention’s environmental access to justice and non-prohibitive procedural
51Case C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess
marknämnd [2009] ECR I-09967, para 38.
52Case C-826/18 LB, Stichting Varkens in Nood, Stichting Dierenrecht & Stichting Leefbaar
Buitengebied v College van burgemeester en wethouders van de gemeente Echt-Susteren [2021]
EU:C:2021:7, paras 35–39 and 59–60.
53An Taisce v An Bord Pleanála, J. Mcuaid uarries Limited & Ors and An Taisce v An Bord Pleanála
& Ors and Sweetman v An Bord Pleanála & Ors [2020] IESC 39 [28] (McKechnie J); Hellre
Massy Residents Association v An Bord Pleanála & Ors [2021] IEHC 424 [96] (Humphreys J);
Dietacaron Ltd v An Bord Pleanála [2004] IEHC 332 [25] (uirke J).
54Lesoochranárske zoskupenie VLK (n 43) [45]; Case C-470/16 North East Pylon Pressure Campaign
Ltd. & Sheehy v An Bord Pleanála, e Minister for Communications, Energy and Natural Resources
& e Attorney General [2018] EU:C:2018:185, para 52.
55Lesoochranárske zoskupenie VLK (n 43) paras 47–48; Case C-243/15 Lesoochranárske zoskupenie
VLK v Obvodný úrad Trenčín [2016] EU:C:2016:838, para 65; North East Pylon (n 54), paras
54– 55.
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costs objectives, ‘and with the objective of eective judicial protection of the rights
conferred by EU law’.56
A few examples provided below would show that the Irish courts have recently
adopted positions availing themselves of the CJEU case law to provide for broader
access to justice regarding legal challenges to environmental-related decisions. is
has somewhat corrected what has been, in the view of some scholars, the course of a
very conservative trajectory of the judiciary in the matter.57 Some of the scholarship
believes, however, that despite the relaxed approach oered by the ‘sucient
interest’ test in Irish judicial review applicable to planning and environmental
matters – where general public interest is at stake – the courts have not fully carried
out the purpose of these rules – which is, basically, guaranteeing fair access to
courts seeking to uphold rule of law while controlling non-serious claims.58
Commentators have noted that part of balancing the public interest and access to
the courts within the standing requirement in environmental judicial review entails
entertaining public policy considerations. In that sense, it would be more desirable
to have permissive standing requirements since the risk of allowing non-serious
clams would be inferior to the danger of unlawful decisions remaining unchallenged
if these requirements are too stringent.59 Nevertheless, by applying that margin of
appreciation from their own moral viewpoint, these scholars observe that the Irish
judiciary has excluded the application of exceptions in standing standards made in
other cases on the basis of marginalisation and vulnerability that should have been
equally applied to those aected by climate change.60 is would have been explicit
in the Climate Case Ireland decision, should the case be read as a case subject to
a formal public consultation and one where the governmental act contravened
provisions of national law relating to the environment. ere, the Supreme Court
required NGOs to prove both a sucient interest and an impairment of rights
against what was provided for in Articles 9(2) to 9(4) of the Aarhus Convention.61
Lately, as was mentioned at the start of this section, there has been slight room
for course correction. For instance, regarding sucient interest in legal standing,
under the principle that it should not be made impossible or excessively dicult,
in practice, to exercise Aarhus access to justice rights, an applicant was deemed
56North East Pylon (n 54), para 56; Case C-752/18 Deutsche Umwelthilfe eV v Freistaat Bayern
[2019] EU:C:2019:1114, para 39.
57Áine Ryall, ‘e Aarhus Convention: A Force for Change in Irish Environmental Law and Policy?’
in Roberto Caranta and others (eds), e Making of a New European Legal Culture: the Aarhus
Convention (Europa Law Publishing 2017) 129.
58 Alison Hough and others, Report on Aarhus Convention Implementation Ireland (Irish Research
Council 2022) 29.
59Hilary Biehler, ‘e concept of sucient interest in judicial review proceedings’ (2021) 65 Irish
Jurist 1.
60Alison Hough and others (n 58).
61 Orla Kelleher, ‘Systemic climate change litigation, standing rules and the Aarhus Convention: a
purposive approach’ (2022) 34(1) Journal of Environmental Law 107.
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by the High Court to have standing considering their proximity to the proposed
development, and the fact that they also had prior participation in the permission
process.62 Moreover, under its duty to give the full extent possible to Articles 9(3)
and (4) of the Aarhus Convention to ensure consistency between these provisions
and section 50B of the Planning and Development Act 2000 (as amended), the
Supreme Court held that the provision had to be understood as meaning ‘precisely
what it says’ to give broad eect to the instrument’s non-prohibitive expenses
requirements in Irish law.63 Last but not least, the High Court has also dened
SLAPP as an unlawful conduct to disincentivise the exercise of human and
constitutional rights using a denition very much in line with Article 3(8) of the
Aarhus Convention, but without invoking directly that international provision.64
Nevertheless, as much as these interpretations regarding standing are welcome,
it is salient that they are not part of a consistent and general approach to grant
wider access to environmental justice on foot of the Aarhus Convention within
Irish case law. Such an approach, as mentioned by the cited scholarship, would have
to establish far more permissive criteria in which the public at large can eectively
contribute to enforcing environmental law.
Lack of enforcement of existing environmental law and environmental rights in
Ireland
Another issue to bear in mind regarding human rights-based environmental
protection within the Irish context is the enforcement of environmental law in
the country. e enforcement of law, and the complex problems caused by the
lack thereof, are problems not exclusive to environmental law, but also present
regarding human rights in general, and environmental procedural and substantial
rights, in particular. Human rights-based environmental protection is perceived
in Ireland, as it is seen all around the world, as a more eective and expeditious
way to treat environmental legal challenges before the authorities and the courts.
Nevertheless, there is no evidence to suggest that it will be exempt from the
same lack of enforcement issues as human rights and environmental law aer it is
enacted in this jurisdiction. is factor should be considered when proposing the
incorporation of the right to a healthy environment and the right to broad locus
standi in environmental aairs as constitutional rights in the Irish Constitution.
62Kelly & Ors v An Bord Pleanála & Ors [2022] IEHC 238 [76]–[84] (Holland J). See also Grace &
Sweetman v An Bord Pleanála [2017] IESC 10 [87]–[89] (Clarke J and O´Malley J).
63Heather Hill Management Company CLG & McGoldrick v An Bord Pleanála [2022] IESC 43
[213]–[220] (Murray J).
64Atlas GP Ltd v Kelly & Ors [2022] IEHC 443 [17]–[18] (Egan J); Save Cork City Community
Association CLG v An Bord Pleanála & Ors [2021] IEHC 509 [38] (Humphreys J); More recently,
see Glenveagh Homes Limited v Lynch & Anor [2024] IEHC 157 [42]–[45] (Humphreys J).
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Lack of enforcement of existing environmental law within the Irish context
Lack of enforcement in environmental law can be dened as the failure or refusal
to carry out the environmental protection duties set out by the law. is includes
both non-compliance with environmental law by private actors and deterrents
for authorities to institutionally ensure compliance. However, both problems are
highly complex and require more empirical data and interdisciplinary studies to be
correctly assessed.
On the side of non-compliance, scholars have mentioned the issue implies engaging
with behavioural psychology – especially with the so-called ‘culture of compliance’
as an everyday way to conduct business – to study the inuence of law on human
motivations and behaviours. It also requires studying the possibility of adopting
responsive regulations to improve compliance levels of non-state social actors. It
would also entail rethinking the law as having an ‘expressive function’, whereby the
law could, if made much clearer and enabled reection and accountability, not just
reverberate but positively mould societal norms and values.65
Regarding institutional deterrents to ensure compliance, a 2019 UNEP Report
has identied several problems regarding the monitoring, investigation and
enforcement of environmental law around the world. ese are inter alia
(i)deciencies in legal design – ‘the laws themselves do not provide sucient
direction, authority, or mechanisms for implementation’, (ii) administrative
hurdles – ‘lack of resources, political will, or capacity to investigate and enforce’,
(iii) poor institutional and sectoral coordination – due to fragmented jurisdiction,
coordination not being a priority for policymakers and regulatory underlap,
(iv)corruption – particularly, through gra and bribery of public ocials, and
(v)targeting of environmental defenders – as they step in to ll a governance gap
and promote environmental rule of law, they are increasingly harassed and killed:
197 of them were murdered worldwide in 2017.66
e follow-up to that report, published in 2023, found that despite the dramatic
expansion of environmental laws and institutions, there are several enforcement
situations that have a negative impact on the environmental rule of law. Many
jurisdictions have vague or conicting laws, which ‘[o]pen the way to judicial
challenges that can delay or block’ the implementation of environmental protection
measures. Institutions and agencies are oen ‘[u]nder-resourced and public
spending is relatively low compared to other areas’ and thus lacking in authority,
capacity, will, accountability, transparency and coordination. Deciencies in
coordination and integration across multiple levels of environmental governance,
65Suzanne Kingston, Edwin Alblas, Mícheál Callaghan and Julie Foulon, ‘Magnetic law: Designing
environmental enforcement laws to encourage us to go further’ (2021) 15(51) Regulation &
Governance S143–S162.
66United Nations Environment Programme, Enironmental rule of law: First global report (UNEP
2019).
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and failure to acknowledge legal pluralism and adopt a gender perspective, can
undermine the environmental rule of law. Corruption keeps posing serious
challenges to environmental governance – notably in developing countries: it
can both be enabled by and reinforce weak institutions and inadequate expertise,
it enables some of the most serious drivers of biodiversity loss, wildlife tracking
and deforestation, and many countries have made little progress in tackling it. e
2023 UNEP Report also acknowledged that many States ‘[r]elaxed, removed or
suspended environmental protection laws, policies and/or their enforcement
activities as a direct response to COVID-19 at the national and/or subnational
level.’67
e situation in Ireland regarding the lack of enforcement of existing environmental
law would not be at all dierent from what happens everywhere else. Along with
an underwhelming trajectory in incorporating existing environmental rights,
evidence suggests that despite encouraging improvement Ireland’s areas due to
eective monitoring and enforcement, Ireland would still struggle to comply with
many existing environmental protection duties, most of them enacted by EU law.
As a 2008 Law Society of Ireland’s Law Reform Committee Report noted, ‘[a]
dministrative failures in administering environmental law, rather than a simple
failure to put legislative structures in place, can amount to failure to comply with
the obligations of a directive’.68
A few recent examples could be read as part of a body of ndings forming a
general perception of low adherence in Ireland to EU and national environmental
protection provisions. is is also paired with a general perception of the public
that further action is needed from the national and local governments regarding
climate change and environmental degradation.69 ese examples identify several
of the issues agged by the 2019 and 2023 UNEP Environmental Rule of Law
Reports aecting the monitoring, investigation and enforcement of environmental
law.
A 2021 OECD Environmental Performance Review of the country found that
despite environmental enforcement and compliance being well-coordinated, non-
compliance levels remained relatively high. In the OECD’s opinion, environmental
enforcement in Ireland was an institutional architecture problem. It was de emed to
be heavily reliant on criminal law, whereas administrative nes were only available
for minor oences. All of this imposed a substantial burden on the regulator,
67UN Environment Programme, Enironmental rule of law: Tracking Progress and Charting Future
Directions (UNEP 2023) 28–58.
68 Law Society of Ireland’s Law Reform Committee, Enforcement of Environmental Law: e case for
reform (Law Society of Ireland 2008) 34.
69According to a recent EPA survey, a signicant majority of people in the country say that many
parts of Irish society, amongst which the national government (90%), local governments (89%),
and the EPA (72%), should be doing ‘much more’ or ‘more’ to address climate change. EPA and
Yale Program on Climate Change Communication, Climate Change in the Irish Mind 2021: Wave
1, Report 1 (EPA 2021) accessed 2 July 2024.
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aggravated by the reduced deterrent impact of low-rate criminal monetary
penalties and administrative nes. at is why that organisation recommended
the country to ‘[i]ntroduce variable administrative nes to decriminalise less
serious environmental oences’ and to ‘[i]ncrease the deterrent eect of monetary
penalties by assessing and recovering economic benet of non-compliance.’70
Regarding the Climate Change Performance Index (CCPI), Ireland ranked
43rd in 2024, dropping from 37th place in 2023 and remaining a low performer.
Among the reasons for such a rating, and more specically, those related to
environmental adherence to existing legislation and policy, CCPI experts cited
lack of implementation of existing policies and the need for ‘[c]larication of
immediate measures to meet Ireland’s legally binding national and international
commitments.’71
In 2018, commenting on an RTÉ programme on agrant disregard of
environmental regulation by waste management companies, members of academia
denounced that besides the weak public pressure, there had not been any evidence
of follow-up from the Government on that issue. In further reaction, one voice
from the judiciary asked for ‘clear and well worked out legislation’ to ensure ‘timely
disposition of environmental litigation’.72 In January 2023, Collins J from the
Supreme Court raised before the Climate Bar Association the issue of the high cost
and the lack of resourcing regarding pollution and planning enforcements.73 One
recent report conducted by Dublin City University, the Irish Research Council
and Community Law & Mediation found, albeit with some research limitations,
that persistent and deeply ingrained inequalities in the country may correlate with
several environmental factors. is exposes traditionally disadvantaged groups in
society to energy poverty, isolation and restricted mobility, poor water quality and
air pollution, barriers in access to environmental information, low access to green
spaces, and unlawful waste management practices.74
e Environmental Protection Agency (EPA) published on 14 June 2023 its Water
uality Report in 2022, to provide an update on the water quality of all water
bodies in the country. e main ndings of the report were that excess nitrogen and
phosphorus levels in water bodies increased from 2021 to 2022 due to activities
such as agriculture, with no show of signicant improvement nationally in water
quality. According ‘to one EPA ocial, ‘[t]he failure to improve water quality in
70 OECD, OECD Environmental Performance Reviews: Ireland 2021 (OECD Publishing 2021).
71Climate Change Performance Index, ‘Ireland’ (Germanwatch e.V, 2024)
country/irl/> accessed 2 July 2024.
72Kevin O’Sullivan, ‘Lack of enforcement of environmental laws ‘a national scandal’’ e Irish Times
(Dublin, 16 July 2018).
73 Pádraig Hoare, ‘Enforcement of pollution laws lacking in Ireland because of costs involved in
taking action, judge warns’ e Irish Examiner (Cork, 30 January 2023).
74Sadhbh O’Neill and others, Enironmental Justice in Ireland: Key dimensions of environmental and
climate injustice experienced by vulnerable and marginalised communities (DCU and CLM 2022)
5–7.
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2022 and over the longer term is extremely disappointing. We will not meet our
water quality objectives until nutrient levels are reduced in those areas where they
are too high.’ e report mentions that local authorities and the DAFM have not
fully implemented the 5th Nitrates Action Programme (‘NAP’) 2022–2025 and
have not used, in that regard, the full range of tools from compliance promotion to
enforcement.75
at NAP was challenged by An Taisce before the High Court to be struck down
due to illegality reasons. e heritage and environmental preservation charity
deems the Programme measures aimed at mitigating potential eects of agri-
industrial runo on water quality are inadequate in light of EU environmental law
requirements.76 Based on the negative indicators of water quality in the country,
and on their continuing downward trend present in the EPA’s report, An Taisce
will strive to prove that the Prog ramme and associated Good Agricultural Practice
regulations have failed to full the objectives of the EU Nitrates Directive.77
e CJEU, in a 29 June 2023 judgment, found that regarding several conservation
sites of Community interest, Ireland had failed to designate them as required,
to provide for site-specic conservation objectives and to adopt necessary
conservation measures. is means the country, in that respect, has breached several
of its obligations under the EU Habitats Directive.78 Based on these ndings, the
Court ratied later last year that under Article 4(4) of the EU Habitats Directive,
Germany had failed to designate as special areas of conservation 88 of the 4,606
sites of Community importance at issue, and that the country had also failed
to adopt detailed conservation objectives for them.79 However, the Court also
established that the Commission did not satisfy the burden of proof to demonstrate
that Ireland did not devise conservation measures based on the site-specic
conservation objectives for some sites. It was also held that the Commission did
not provide any proof either of conservation measures placed by the country that
were repeatedly, persistently and systematically of insucient quality due to lack of
precision or ineectiveness.80
In January 2024, the CJEU found that Ireland failed to protect drinking water
from toxic chemicals linked to cancer. Under Article 4 of Directive 98/83/
75Environmental Protection Agency, ‘EPA nds no signicant improvement in the water quality of
rivers and lakes’ (EPA News Releases, 13 June 2023)
July 2023; Environmental Protection Agency, Water uality in 2022 – An Indicators Report (EPA
2023) accessed 10 July 2023.
76Ellen O’Riordan, ‘State’s nitrates plan beaches environmental laws and should be struck down, An
Taisce tells court’ e Irish Times (Dublin, 12 December 2023).
77An Taisce, ‘Statement from An Ta isce re legal action in respect of Nitrates Action Programme’ (An
Taisce, 30 June 2022)
in-respect-of-nitrates-action-programme> accessed 23 January 2024.
78 Case C-444/21 Commission v Ireland [2023] EU:C:2023:524, paras 44–57, 64–70, 136–154.
79Case C-116/22 Commission v Germany [2023] EU:2023:687, paras 27, 35–36, 105–107, 149.
80Commission v Ireland (n 78) paras 155–175.
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CE on the quality of water intended for human consumption, the country ‘had
obligations to keep’ trihalomethane levels in drinking water at a safe level, due to
their harmful character to humans and the environment despite its use in water
treatment systems. e country was also obliged to restore the quality of drinking
water ‘as quickly as possible.’ Yet Ireland did not adopt any measure to full such
commitments regarding twenty-one public water supplies and nine private water
group schemes, which had been ongoing since at least 2012, while the compliance
deadline had been 2003.81
According to the EPA Focus on Local Authority Environmental Enforcement
Performance Report 2022, ‘[w]hile the scale of environmental enforcement work
carried out by local authorities is signicant, in many areas it is not delivering
the necessary environmental outcomes such as improved water and air quality
and waste segregation.’ Despite an overall improvement in Local Authority
Performance Framework scores in comparison with 2021, many key environmental
indicators have remained static or initiated a negative trend. e EPA documents
possible weak leadership within local authorities in that regard. In relation to waste
segregation, local authorities have performed poorly in enforcing the roll-out and
use of 3-bin systems in both household and commercial waste, resulting in not
achieving the national municipal recycling targets. Concerning water enforcement,
even though local authorities have generally completed their water monitoring
programmes, water quality is still not good enough, with only half of the water
bodies in satisfactory condition. e number of risk-based farm inspections to
tackle issues of soiled water, slurry and fertiliser management to reduce impact is
still too low.82
One last example seeks to portray that the practical eectiveness of the few
established procedural environmental rights in Ireland would be curtailed by a lack
of enforcement on behalf of the authorities. ere would be, it seems, a culture of
non-compliance within the Irish Government when it comes to upholding the
public’s right of access to environmental information guaranteed by all applicable
laws.
81Case C-481/22 Commission v Ireland [2024] EU:C:2024:85, paras 93–95, 105–121. See also
Seán McCárthaigh, ‘Ireland found guilty of failing to ensure safe drinking water by EU court’
e Journal (Dublin, 25 January 2024)
6281471-Jan2024/> accessed 25 January 2024; Tony Connolly, ‘Court rules some chemicals
in Irish water exceed EU safety levels’ (RTÉ, 25 January 2024)
ireland/2024/0125/1428534-water-eu/> accessed 25 January 2024; BBC, ‘Irish water does not
meet EU standards, court rules’ (BBC News Europe, 25 January 2024) .bb c.com/
news/articles/c4n3zj3g8e4o> accessed 25 January 2024.
82Environmental Protection Agency, Focus on Local Authority Environmental Enforcement –
Performance Report 2022 (EPA 2023)
public-authorities/Focus-on-Local-Authority-Environmental-Enforcement---Performance-
Report-2022.pdf> accessed 2 July 2024.
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e Commissioner for Environmental Information, in the oce’s Annual Review
for 2022 published on 24 May 2023, criticised local authorities and state agencies
systematically engaged in hiding environmental information from the public.83 An
Bord Pleanála, Coillte, the Land Development Agency, the National Transport
Authority, county council and government departments – such as the Department
of Agriculture, Food and the Marine (DAFM) – were among those entities that
wrongly refused to release information in a year that saw the highest number of
appeals ever made to the Commissioner. With 369 cases received in 2022, the
oce registered an increase of 151% in 2021, 69% of which were appeals related
to forestry information involving Coillte and the DAFM. Only 3.1% of the
appeals (4cases) armed the decision of the public authority.84 In view of the
Commissioner, this behaviour indicated the existence of an ‘unacceptable’ situation
that revealed a lack of understanding and engagement of these authorities with this
fundamental right.85
However, Irish authorities are actively trying to improve environmental law
enforcement, and several positive results have been achieved in areas such as drinking
and bathing water and waste management, even though there is still more to be
done. So, the bundle of dynamic phenomena that form the general perception of
low adherence in Ireland to environmental legislation and policy should be subject
to constant and objective scrutiny. For example, according to the EPA Drinking
Water uality in Public Supplies 2022 Report, water in Irish public water supplies
is safe to drink, as ‘[c]ompliance with the microbiological and chemical standards
for drinking water remains at greater than 99.7%’.86 In relation to bathing water
quality, the EPA Bathing Water uality in Ireland 2023 Report found that the
majority of bathing waters have excellent or good quality. According to the report,
‘97% of the 148 identied bathing waters met or exceeded the minimum required
standard’, with only ve poor bathing waters with a swimming restriction for the
2024 season.87 Concerning industrial and waste license enforcement activities,
a 2023 EPA Summary has recorded a decrease in inspections to licensed sites, an
increase in the percentage of unannounced inspections – 91% in that year against
87% in 2022 – and a decrease in complaints due to enforcement activities – a 29%
decrease when compared to 2022.88
83 Commissioner for Environmental Information, Annual Review 2022: Commissioner criticises
public authorities’ compliance with Access to Information laws
press-releases/annual-review-2022-commis/> accessed 12 July 2023.
84Commissioner for Environmental Information, Annual Review 2022 (n 83) 8, 12, 26.
85 ibid; Caroline O’Doherty, ‘Commissioner criticises state bodies and councils for failures to
disclose information on environment’ e Irish Independent (Dublin, 24 May 2023).
86Environmental Protection Agency, Drinking Water uality in Public Supplies 2022 (EPA 2023).
87Environmental Protection Agency, EPA Bathing Water uality in Ireland – A report for the year
2023 (EPA 2024).
88 Environmental Protection Agency, Industrial and Waste Licence Enforcement Summary 2023
(EPA 2024).
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e lack of enforcement of human rights that would mirror itself in environmental
rights
Lack of enforcement is not an exclusive problem of environmental law. It is a
problem present within international human rights law as well. It has to do, as is the
case with environmental law, with the nature of human rights themselves, with the
way human rights are applied and with the institutional capacity to enforce them.
If environmental rights follow a human rights-based approach, then this problem
equally reects on environmental rights.
In general, human rights share the same characteristics as any kind of right. From
a legal philosophy perspective – and without pretending to deal extensively with
the question here – in rights-based claims to seek relief for injuries or breaches of
law, rights are understood as correlative legal protections from interference or to
be provided assistance for something, for certain reasons.89 e underlying interest
in upholding human dignity through human rights would thus preclude being at
the mercy of utilitarian or majoritarian reasons that denigrate or express contempt
for certain members or sections of the community.90 But from a political point of
view, there is also a performative side to claiming rights: classifying the entitlement
which society should defend as such entails stating ‘[i]n a shorthand way that
such defence is normatively required but without explaining that requirement’s
normative underpinnings’. Rights are, in that sense, the product of a linguistically
constituted social practice, and right can only be rights if they are invoked
according to the rules of the relevant political discourse. New circumstances and
new political commitments beget new rights and, exceptionally, new terminologies
for describing those rights generally. Such was the process at work with ‘civil’, ‘social
and ‘political’ rights and the rise of human rights.91
However, as powerful as the assertion of claims in the language of rights may
seem, human rights enforcement is said to be hindered by several shortcomings
in the existing regime. As some scholars mention, even though the number of
international human rights treaties, as well as the number of participating States,
has increased drastically, ‘weak and inecient enforcement mechanisms’ are the
Achilles heel of international human rights law.’ ey add, consequently, that
the ratication of human rights treaties does not guarantee per se an improved
human rights protection, and that ‘the enforcement mechanisms prescribed by the
core human rights treaties are not conducive to better compliance.’ Indeed, there
is evidence that State parties to international human rights treaties frequently
neglect their reporting obligation or submit their reports with signicant delays.
89 Nikolai Lazarev, ‘Hohfeld’s analysis of rights: An essential approach to a conceptual and practical
understanding of the nature of rights’ [2005] Murdoch University Electronic Journal of Law 9
90Jeremy Waldron, ‘Pildes on Dworkin’s theory of rights’ (2000) 29(1) e Journal of Legal Studies
301–307.
91Richard A. Primus, e American language of rights (CUP 1999) 234–247.
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It has also been proven that states do not frequently rely upon interstate complaint
mechanisms provided by those treaties. Furthermore, the additional protection
guaranteed to human rights that have ius cogens/obligation erga omnes status is
undermined by the denitional ambiguity of both concepts, and only a small
number of disputes before the International Court of Justice consist of violations of
international human rig hts conventions.92
In that sense, according to commentators, the appeal of human rights-based
approaches to legislation where States are the main – though not the only – duty-
bearers, despite the complications as to what roles the State plays regarding those
rights,93 can be partially explained by the post-WWII public belief that they could
be forced upon countries as a matter of international or constitutional law. ere is,
however, little proof of this belief’s reality. More so, at a moment in history when
there are more countries that have ratied international human rights instruments
or that have fundamental rights in their Constitutions but also a growing number
of human rights violations.94 Reports in 2023 registered a grim balance, with
several organisations evidencing continuity in the trend of persistent deterioration
of r espect for human rights and the rule of law, mainly at a national level but also
at an international level. at is, with new or renewed conicts breaking out and
with protracted ones persisting.95 Ireland itself is by no means a stranger to this
paradox.96 erefore, to some of these organisations, the magnitude, scale, and
frequency of human rights crises – including those related to climate change – call
for an urgent new framing and model for action.97 Needless to say, this situation
did not change as 2024 loomed on the horizon.98
92Iryna Bog danova, Unilateral Sanctions in International Law and the Enforcement of Human Rights
(Brill Nijho 2022) 164, 200, 202, 222.
93 Jeremy Waldron, ‘Duty-bearers for positive rights’ (2014) 14–58 Public Law & Legal eory
Research Paper Series 9–10.
94Eric Posner, ‘e case against human rights’ e Guardian (London, 4 December 2014).
95Amnesty International, Amnesty International Report 2022/23 (2023) 14.
96Amnesty International (n 95) 205–206
97 Tirana Hassan, ‘A new mo del for global leadership on Human Rights’ in Tirana Hassan, World
Report 2023 (Human Rights Watch 2023) 13.
98For instance, regarding environmental defenders and climate activists during 2023, it has been
noted by Human Rights Watch that ‘[e]nhanced civic engagement to meet the urgency of the
climate crisis has triggered the nefarious use of vague laws to target activists to make it harder to
express dissent. Across Europe, in the US, Australia, and Vietnam, governments are imposing harsh
and disproportionate measures to punish activists and deter the climate movement. e United
Arab Emirates (UAE), one of the world’s largest oil producers, hosted the UN Climate Conference
COP28 in 2023, an apparent attempt to burnish its image while pushing the expansion of fossil
fuels and undermining eorts to confront the climate crisis. People trying to speak out about the
UAE’s record face risks of unlawful surveillance, arbitrary arrest, detention, and ill-treatment.’ Se e
Tirana Hassan, ‘e human rights system is under threat: a call to action’ in Human Rights Watch,
World Report 2024 (Human Rights Watch 2024) 1.
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136
Possible Pathways for the Incorporation of the Right to a Healthy
Environment and Broader Standing for Nature In Ireland
e previous considerations allow, at least at a theoretical level, to dra a sort of
blueprint of what would be the content of a right to a healthy environment and a
right to broad legal standing for nature were both to be incorporated within the
Irish jurisdiction by constitutional amendment. Given the particularities of the
legal treatment of environmental human rights in Ireland and the current panorama
lack of enforcement of both environmental and international human rights law, any
future referendum eorts in that sense should attempt to carefully establish the
content of these rights as to ensure, to the fullest extent possible, their clarity, their
legal eectiveness and their enforcement. Seeing that this endeavour would seem
to have not been carried out by the CABL’s report, this paper will try to oer some
clues as to where those possible pathways should lead.
e content of a right to a healthy environment embedded in the Irish
Constitution
Some general principles applicable to this right
e rst thing would be to establish several general principles that the content of
the right to a healthy environment should entail. ese general principles touch
with all three elements described above, but mostly with the general scope and
protection oered in practice by this right.
e right to a healthy environment should be endowed with some specic content.
e right should create duties where the State and individuals are both duty-bearers
– in dierent degrees and regarding dierent obligations – and where these duties
are clear, conditional, unambiguous and automatically applicable – i.e. without the
need for further statutory development or implementation. is relates to what is
known as direct eect in EU case law.99 A similar approach is what in continental
law is known as subjective rights. A subjective right is a power given by a rule of law,
under certain conditions, to a right-holder over goods or duty performances that
are the object of the right itself to satisfy their interest, which includes the power to
impose its respect to third parties even, if necessary, by recourse to judicial action.100
99See Case C-26/62 Van Gend en Loos v Nede rlandse Administratie der Belastingen [1963] ECR
I-1, paras 11–13; Case C-41/74 Van Duyn v Home Oce [1974] ECR 1337, paras 12, 13; Case
C-43/75 Deenne v Sabena [1976] ECR 455, paras 31–34, 39, 40; Case C-189/89 Foster v
British Gas [1990] ECR I-3313, paras 20.
100In Belgian law, see ierry Léonard, Conits entre droits subjectifs, libertés civiles et intérêts légitimes
(Larcier 2005); Renate Barbaix and Nicolas Carette, Privaat (vermogens)recht (2nd edn, Larcier
Intersentia 2023). In French law, see Jean Dabin, Le droit subjectif (23rd edn, Dalloz 2007); Paul
Roubier, Droits subjectifs et situations juridiques (Bibliothèque Dalloz 2005).
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Specic Content could Substantial and Procedural Environmental Rights 137
Another general principle would be that related to the realisation of the right. e
draing would have to expressly mention that the State shall immediately realise
the right to a healthy environment wherever it is breached and that the State has
the duty to use the maximum available State resources to realise it. It would also
be recommended to expressly mention that this duty is cognisable before the Irish
courts, contrary to the clause in Article 45 of the Constitution. ese provisions
would allow the counter to several concerns traditionally manifested by the
judiciary about the separation of powers and claims of so-called ‘distributive justice’.
Irish case law shows, with plenty of examples, that courts will not uphold and render
eective socio-economic rights that might aect economic resource allocation.101
In landmark cases, such as TD v Minister for Education and Sinnot v Minister for
Education,102 the Supreme Court has shown reluctance to intervene in such matters
which it sees as part of policy – and as such, attributed to the executive power and
the legislature. is view starkly contrasts with the contemporary role of judicial
review judges, as pointed out by scholars, ‘[t]o step in when faced with ‘egregious
neglect’ of rights.’ At the international level, strict approaches such as the one
taken by the Supreme Court regarding the justiciability of socio-economic rights
have been deemed as curtailing their justiciable dimensions, a situation which
would be in breach of international law.103 In any case, there are recent case law
developments, such as the one in Burke v Minister for Education,104 that, according
to commentators, seem to be going in the direction of ‘[a]n increased willingness to
intervene in the grey areas of the separation of powers where rights are at issue.’105
101 See O’Reilly v Limerick Corporation [1989] ILRM 181 [195] (Costello J); Sinnott v Minister for
Education [2001] 2 IR 545 [634] (Hardiman J); T.D. v Minister for Education [2001] 4 IR 259
[288] (Keane CJ); Doherty & Anor v South Dublin County Council & Ors [2007] IEHC 4 [46]
(Charleton J).
102Sinnott v Minister for Education [2001] IESC 63 [695], [699–702] (Hardiman J).
103Reg arding the substantive issues arising in the implementation of the International Covenant on
Economic, Social and Cultural Rights (ICESCR), the UN Committee on Economic, Social and
Cultural Rights has stated that ‘While the general approach of each legal system needs to be taken
into account, there is no Covenant right which could not, in the great majority of systems, be
considered to possess at least some signicant justiciable dimensions. It is sometimes suggested
that matters involving the allocation of resources should be le to the political authorities rather
than the courts. While the respective competences of the various branches of government must
be respected, it is appropriate to acknowledge that courts are generally already involved in a
considerable range of matters which have important resource implications. e adoption of a rigid
classication of economic, social and cultural rights which puts them, by denition, beyond the
reach of the courts would thus be arbitrary and incompatible with the principle that the two sets
of human rights are indivisible and interdependent. It would also drastically curtail the capacity of
the courts to protect the rights of the most vulnerable and disadvantaged groups in society.’ UN
CESCR, ‘Dra general comment No. 9: e domestic application of the Covenant’ (3 December
1998) UN Doc E/C.12/1998/24.
104Burke v Minister for Education [2022] IESC 1 [61] (O’Donnell CJ).
105Laura Cahillane, ‘e TD case and approaches to the separation of powers in Ireland’ (2022) 20
IJSJ 10.
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138
One more aspect to consider here is that the executive and the legislature
themselves might express reservations towards budgeting for the realisation of a
right to a healthy environment were it to be enshrined in the Constitution. Some
controversy has arisen with respect to the costs that constitutional reform can entail
for the State. For instance, in the aermath of the failed care referendum, the Irish
press reported that members of the Interdepartmental Group on Referendums
on Gender Equality criticised previous versions of the referendum wording ‘[f]or
exposing the State to a substantially higher level of risk, and making it likely the
judiciary potentially becoming involved in matters of resource distribution.’106
A right to a healthy environment would not be a stranger to this conjuncture, as
remedies for its breach would require orders regarding environmental governance
implementation and even compensation for harm to nature’s contributions to
people.
Nevertheless, the Irish State is obliged by Article 40.3 of the Constitution
to vindicate the personal rights of the citizen, which, interpreted through an
eectiveness lens, also entails a duty of budgeting for realising fundamental rights.
is duty also covers socio-economic rights since the State has the international
obligation to incorporate international covenants on socio-economic rights
into domestic law, to which it is a contracting party.107 Consequently, to mitigate
concerns about the encroachment of attributions by the judiciary within the
separation of powers through distributive justice regarding the realisation of the
right to a healthy environment, the executive and the legislature must prioritise
integrating environmental rights into social and economic policy nanced by public
resource allocations. ese budgetary choices would reect the real commitment of
the Irish State to the implementation of the environmental rule of law as part of
its international and EU obligations. One path forward to overcome this hurdle, as
previously mentioned, is to explicitly provide for a State duty to use the maximum
available resources in public budgets to realise the right to a healthy environment.108
Moreover, a non-regression principle clause regarding environmental human rights
would certainly be most welcome. According to scholars, the non-regression
principle in environmental law conveys the idea ‘[t]hat governments and other
institutions must not reduce the level of protection aorded by laws, regulations
and standards.’ is principle ‘is intended to avoid removing or weakening norms
106Harry McGee, ‘Ocial records show costs row over care referendum wording’ e Irish Times
(Dublin,17 April 2024).
107Even though the Government has argued to UN Committee on Economic, Social and Cultural
Rights the that it has not fully incorporated into domestic law due to the State’s dualist legal
system, the Oireachtas is in default to enact it as legislation. Back in 2015, the Irish Human
Rights and Equality Commission took note of the examination undertaken by the Law Reform
Commission regarding the best way to ensure the adequate and full incorporation into Irish law
of all relevant articles of the ICESCR.
108Hien Bui, ‘Human Rights Budgeting: Making Governments Accountable for Economic, Social
and Cultural Rights’ (2015) 2(1) QMHRR 109.
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Specic Content could Substantial and Procedural Environmental Rights 139
in favour of interests that have not been demonstrated to be higher in importance
than the public interest in the environment, given that, in many circumstances,
backsliding can lead to environmental consequences that are irreversible or dicult
to repair.’ It represents the strong link between the healthy environment and human
rights, where the rst is a precondition for the eective exercise of the latter, and it
calls for the progressive realisation of human rights, in the way that once norms
have secured the rights, the State has then the duty to maintain their enjoyment.109
One last principle that this right would have to take into account would be intra-
and intergenerational justice.110 Since no human rights instrument contains
a temporal limitation or limits rights to the present time, a right to a healthy
environment consistent with a human-rights based approach would seek to
establish a clause where rights of present and future generations are ‘interpreted
and applied in light of humanity’s dependence on and responsibility to Earth’s
natural systems’. It would also involve understanding, interpreting and integrating
the rights of future generations ‘within the evolving legal context recognising
humanity’s relationships with the natural world, and the best available science.’111
Two kinds of duties (and interests) regarding healthy environments
As a foreword, a mere express reference to the right in the Irish Constitution is no
guarantee of this right being upheld as such by the authorities or by the Courts. is
means that a certain degree of detail would have to go into the constitutional reform
bill to have an eective and enforceable provision. For instance, in the Norwegian
People v Arctic Oil case, that country’s Supreme Court held that even though the
right to a healthy environment in Article 112 of the Constitution established an
obligation for the State, it did not recognise ‘a corresponding fundamental right
inter alia because of the absence of an internationally recognised human right to a
healthy environment.’ e Norwegian Supreme Court also held that although this
provision protects citizens from environmental and climate harms, it only allows
for judicial review in very limited conditions: only when the legal duty of the
Government to adopt adequate and necessary environmental measures is ‘grossly
neglected’.112
109 Nicholas S Bryner, ‘Never Look Back: Non-Regression in Environmental Law’ (2022) 43(3)
University of Pennsylvania Journal of International Law 555.
110In the Neubauer case, the German Constitutional Court held that Article 20a of the Constitution
also protects the ‘natural foundations of life’ for future generations. is means there is a duty
of the State to treat these natural foundations of life ‘[w]ith such care and to leave them in such
conditions that future generations who wish to carry on preserving these foundations are not
forced to engage in radical abstinence.’ Neubauer et al v Germany Case nos BvR 2656/18/1,
BvR 78/20/1, BvR 96/20/1, BvR 288/20 (Bundesverfassungsgericht (BVerfG) (Federal
Constitutional Court), 24 March 2021), [193].
111Maastricht Principles on the Human Rights of Future Generations (2023)
outuregenerations.org/the-principles> accessed 12 July 2023.
112 Christina Voigt, ‘e First Climate Judgment before the Norwegian Supreme Court: Aligning
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140
In regard to the specic content that the right to a healthy environment should have,
and picking up on what was held by the Supreme Court in Climate Case Ireland,
draers of the referendum bill should create two dierent kinds of duties. One
would be entirely owed by the State, and it would concern existing environmental
law enforcement and guarantee the overarching protection regarding a safe,
clean and healthy environment to ensure the enjoyment of other constitutional
rights. e other, owed by public authorities and individuals alike, would entail
environmental liability for environmental harm with special reparation measures to
injured ecosystems or species beyond damages.
On the one hand, the rst obligation would impose upon the State, in favour of
individuals, the duty to facilitate, provide universal access to, and protect (i)
breathable clean air, (ii) quality fresh water, (iii) adequate and aordable housing,
(iv) healthy and sustainably produced food, (v) adequate housing, (vi) non-toxic
environments in which to live, work, study, and play, (vii) a safe climate, and (viii)
healthy biodiversity and ecosystems, as an essential part of the enjoyment of all
constitutional rights provided for in the Constitution. Such content would align
the Irish Constitution with the current developments of the subjective dimension
of the right in international environmental (so) law.113 is duty should also
expressly impose that it must be fullled by the State considering discrimination
against and vulnerabilities related to gender and disadvantaged groups.114 On
the other hand, this rst obligation would create a duty of care upon the State to
exercise its powers with reasonable care to enforce existing environmental law. is
should include the duty of the State to regulate and adjudicate abuse by business
enterprises as well.115 It should also be added that any public body with powers
Law with Politics’ (2021) 33(3) Journal of Environmental Law 697; Greenpeace Nordic Association
v Ministry of Petroleum and Energy (2020) Case no 20-051052SIV-HRET (Norwegian Supreme
Court) (People v Arctic Oil), para 92. Unocial translation asøksmål.no/wp-content/
uploads/2021/01/judgement_translated.pdf> accessed 16 February 2021.
113e UN has formally declared, albeit through a non-binding instrument, the existence of a human
right to a safe, clean, healthy and sustainable environment. See UNHRC Res 48/13 (5 October
2021) UN Doc A/HRC/48/L.23/Rev1, and UNGA Res 76/300 (26 July 2022) UN Doc
A/76/L.75.
114John H Knox, ‘Report of the Independent Expert on the Issue of Human Rights Obligations
Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: preliminary
report’ (24 December 2012) UN Doc A/HRC/22/43; John H Knox and UNHRC, ‘Report
of the Independent Expert on the issue of human rights obligations relating to the enjoyment
of a safe, clean, healthy and sustainable environment, John H. Knox: mapping report’ (30
December 2013) UN Doc A/HRC/25/53; John H Knox and David R Boyd, ‘Report of the
Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment’ (19 July 2018) UN Doc A/73/188; David R
Boyd ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the
enjoyment of a safe, clean, healthy and sustainable environment’ (8 January 2019) UN Doc A/
HRC/40/55; Scottish Environmental LINK, e substantive right to a healthy environment: A
review of denitions, standards and enforcement mechanisms (ERCS 2023)
v3hxd8cv> accessed 12 July 2023.
115 ibid.
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Specic Content could Substantial and Procedural Environmental Rights 141
to adopt environmental protection duties should aim to ensure the highest level
of protection possible, act under the best scientic knowledge available and have
regard in the exercise of those powers, among others, to the precautionary principle,
the prevention principle, the polluter-pays principle,116 and the in dubio pro natura
principle.117
Once these environmental duties are entrenched in the Constitution, it would
be the judiciary’s task to determine their scope in every case. e courts would
have to distinguish the events where the right to a healthy environment, in its
subjective and objective dimensions, would be applicable from those events where
environmental harm interferes with other constitutional rights – such as the right
to life or the right to bodily integrity. However, as case law settles, the need to use
the expansive interpretation of constitutional personal rights to cover the impact of
environmental harm on human interests will make way for the full application of
the subjective dimension of the right to a healthy environment.
e second type of obligation would impose strict liability upon the State,
individuals and body corporates for objective environmental harm. is liability
wishes to highlight the value creation of nature’s contributions to people or
ecosystem services as legal interests in themselves.118 ese interests could and
should be protected by the right to a healthy environment given the complexity
and indivisibility of human, ecological, individual/singular, collective/universal,
general and individual interests at play when environmental degradation arises.119
116 See Climate Bar Comhshaol and e Bar of Ireland, Towards a Model Environmental Law
(Climate Bar Symposium, Dublin, January 2022)
e2_814e7418417f4f1c9d92e6e97c3fb9d4.pdf> accessed 10 July 2023.
117 With a backdrop in international law, the in dubio pro natura principle implies that ‘[i]n case of
doubt, all matters before courts, administrative agencies, and other decision-makers shall be resolved
in a way most likely to favour the protection and conservation of the environment, with preference
to be given to alternatives that are least harmful to the environment. Actions shall not be undertaken
when their potential adverse impacts on the environment are disproportionate or excessive in
relation to the benets derived therefrom (Principle 5).’ World Commission on Environmental Law,
IUCN World Declaration on the Environmental Rule of Law (IUCN 2016); However, it must be
dierentiated from the precautionary principle: the latter is a management strategy for serious or
irreversible risks of damage to nature, where ‘scientic uncertainty precludes a full assessment of
the risk and when decision-makers consider that the chosen level of environmental protection or
of human, animal and plant health may be in jeopardy.’ Commission ‘Communication from the
Commission on the precautionary principle’ (Communication) COM (2000) 1 nal, 12; See also
Serena Baldin and Sara de Vido, ‘e in dubio pro natura principle: An attempt of a comprehensive
legal reconstruction’ (2022) 32 Revista General de Derecho Público Comparado 168.
118Ecosystem services, or nature’s contributions to people, are dened as the positive and negative
oerings or additions of living nature – broadly dened – to people’s quality of life. See Andrew
N Kadykalo and others, ‘Disentangling ‘ecosystem services’ and ‘nature’s contributions to people’
(2019) 15(1) Ecosystems and People 269.
119Natalia Kobylarz, ‘Balancing its way out of strong anthropocentrism: Integration of ‘ecological
minimum standards’ in the European Court of Human Rights ‘fair balance’ review’ (2022) 13(0)
Journal of Human Rights and the Environment 16; Tilo Wesche, ‘ Who owns nature? About the
rights of nature’ (2022) 65 Estudios de Filosofía 49.
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142
In this case, it could be provided that either public bodies or private persons
found liable for causing environmental harm, without having to prove intent or
carelessness on the defendant, are forced to restorethe degraded ecosystem up
to a favourable ecological condition determined by the best scientic knowledge
available.120 It could be proposed that compensations for ecological and societal
losses resulting from harm inicted to species and ecosystems could be valued
using a methodology that abandons market-based instrumental values and instead
considers species extinction or ecosystem destruction risks, ecological and cultural
signicance of nature harmed and its contribution to welfare.121 Furthermore, it
could also be established that the courts are allowed to use methods of establishing
causation that are adequate to the particularities of environmental harm, such as
attribution science.122
For instance, the amended section 1247 of the French Civil Code has incorporated
the notion of ‘objective environmental harm’ (préjudice écologique pur). Dened as
non-negligible damage to the elements or functions of ecosystems or to its collective
benets for mankind, the notion allows for awarding compensation without having
to prove any personal injury, since harm is caused directly to nature and suered
by society, collectively. French scholars have dubbed it a ‘victimless injury’, a harm
‘[w]hich is everyone’s and also no one’s.’123 e Constitutional Council established
120Some science scholars note that restoration is a complex activity from both a scientic and social
point of view. Scientically, nature restoration should go beyond ensuring simple ecological
restoration, and include broader goals such as improved aesthetic and recreational value. ere
is also concern that current monitoring of restoration projects would be unable to demonstrate
the overall benet to ecology and biodiversity. From a social perspective, on the other hand,
nature restoration projects required enhanced public participation, such as community-building,
environmental education or re-engaging inhabitants with their local environment. Benjamin
Smith, Nicholas J Cliord and Jenny Mant, ‘e changing nature of river restoration’ (2014) 1
WIREs Water 249.
121e B IOVAL Project, led jointly by the EU Forum of Judges for the Environment, the European
Network of Prosecutors for the Environment, KU Leuven and the EU Network for the
Implementation and Enforcement of Environmental Law (IMPEL), is aiming to create a non-
binding, practical instrument to value ecological damages. is proposal works under the IPBES
Central Framework and Values Assessment 2022. It proposes three values of nature that currently
get lost in the way damages to nature are valued at the moment: (i) non-market instrumental
values, (ii) relational values and (iii) intrinsic values. Although imperfect – because it has a certain
degree of subjectivity even though it is based on scientically grounded criteria –, this initiative
seeks to include previously unused multiple values of nature (e.g. cultural value, contribution
to welfare), to include an independent use of criteria through addition of values instead of
multiplication of them. IMPEL, BIOVAL – Ecosystems Recovery Calculation (2022)
www.impel.eu/en/projects/bioval-ecosystems-recovery-calculation> accessed 12 July 2023.
122Attribution science has introduced probabilistic approaches to link multi-dimensional, complex,
non-linear environmental problems caused by the eect of human agency on the biosphere to one
or multiple human actors. See Tobias Pfrommer and others, ‘Establishing causation in climate
litigation: admissibility and reliability’ (2019) 152 Climatic Change 67; Sophie Marjanac and
Lindene Patton, ‘Extreme weather event attribution science and climate change litigation: an
essential step in the causal chain?’ (2018) 36(3) Journal of Energy & Natural Resources 265.
123Charlotte Dubois, ‘La responsabilité civile pourrait-elle voler au secours de la culture?’ [2020]
Revue trimestrielle de droit civil, 275.
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Specic Content could Substantial and Procedural Environmental Rights 143
that the non-negligible harm at the core of the objective environmental harm is
a exible and malleable notion that would have to be adopted by the judiciary in
the course of the sociological and ecological challenges of time. Moreover, it is a
notion limited to signicant injuries, excluding very minimal ones, that in no way
limits the damages that could be awarded to an individual personally injured by an
objective environmental harm.124
Dealing with the objective dimension of the right to a healthy environment, in the
form of ecosystem or species restoration from environmental harm, is no doubt
one of the hardest tasks that the courts would have to face. But such a task is not
an impossible one. It simply demands a more technical and complex operation
in which all economic, social and environmental costs associated with nature
degradation are included to award restoration measures in lieu or in addition to
damages. Furthermore, the operation to calculate restoration will be one where
nature-based solutions, grounded in scientic evidence and devised by experts in
aid of the courts, are used to rebuild and sustainably manage degraded coastal,
marine, wetland, wildlife reserve, industrial and agricultural areas.
e content of a right to broad legal standing for nature embedded in the Irish
Constitution
roughout European jurisdictions, there exists the ‘boogieman’ of broad legal
standing to protect the commons as a matter of public interest. However, this fear
of popular actions as an encroachment of the separation of powers might be proven
to be irrational. Historical and practical arguments support an action by any
member of the public to protect such matters not oending separation of powers
that can be applicable to environmental litigation. Moreover, control mechanisms
can be introduced to eectively exclude busybodies and abusive litigation from the
courts.
International and EU law have irted with ‘the idea of environmental popular
actions but not yet to a point where it becomes an obligation to incorporate it
into domestic jurisdictions. Advocate General Sharpton at the CJEU understood
the provision in Article 9(3) of the Aarhus Convention as its ‘actio popularis
provision’. erefore, Member States were at liberty to incorporate such broad
standing for nature in their domestic legislations, given that it authorises a ‘member
of the public’ to legally challenge breaches of environmental law.125 However, this
124Decision no 2020–881 QP C, (Conseil constitutionnel, 5 February 2021) ECLI:FR: CC:2021:
2021.881.QPC; Henri Conte, ‘La portée de la réparation du préjudice écologique pur’ Dalloz
Actualité (Paris, 10 March 2021)
du-prejudice-ecologique-pur> accessed 25 January 2024.
125 Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-
Westfalen eV v Bezirksregierung Arnsberg & Trianel Kohlekrawerk Lünen (intervening) [2011]
ECR I-03673 Opinion of Advocate General Sharpton, para 42.
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144
provision has no direct eect, and very few European countries have proceeded
to its incorporation in such a fashion. e ACCC acknowledges the margin of
determination of States when determining how broad standing for nature can
be within national law, as long as it is consistent with the objective of ensuring
the objective of wide access to justice. In that sense, even though parties cannot
introduce such strict criteria to eectively bar all or almost all members of the
public, including environmental NGOs, from access to environmental justice,
‘[t] he Parties are not obliged to establish a system of popular action (actio popularis)
in their national laws to the eect that anyone can challenge any decision, act or
omission relating to the environment.’126
European jurisdictions have been traditionally reluctant to provide for popular
actions in the protection of public interest. ere are three main arguments at play
to ercely oppose enshrining environmental popular actions. e two rst ones are
interrelated and would suggest that environmental popular actions are damaging
to the rule of law in the way of encroaching on the separation of powers and the
essence of judicial action as a means to protect individual rights. e third one
would be related to the ‘oodgates’ public policy argument, so popular in common
law systems.
Regarding the rst argument, the fear of an actio popularis encroaching on the
separation of powers nds an explanation in liberal democracies of the 19th ce ntur y.
Drawing from a Montesquieuian vision of democracy curbing the excesses of
absolutist rule, judges were very careful not to interfere in areas of the Legislative
and Executive by stumbling upon an area – acting on behalf of public interest
– which is exclusive to the other branches of power.127 For some scholars, this
argument could be reasonably countered by observing that nowadays all European
jurisdictions allow for judicial review of administrative decisions, thus evidencing
the change in the role of courts since the rst developments of administrative law.
However, this is a dierent problem regarding the discretion of states and the
design of legal challenge proceedings a gainst administrative decisions, which raises
no actual concern about the separation of powers.128
is leads to engaging with the second argument. Another hurdle to environmental
popular actions is that all proceedings are tted for legally challenging
126 Forty-h meeting of the Compliance Committee to the Aarhus Convention, Findings and
recommendations with regard to communication ACCC/C/2008/31 regarding compliance by
Germany (UNECE 2014) para 92.
127In fact, some scholars have argued today for a conception of the separation of powers that goes
beyond the mere ‘checking and balancing function’, ‘[w]herein dierent organs of State act
collaboratively to ensure both that fundamental rights are protected and that the State can pursue
goals which help to further the common good.’ See Michael Foran, ‘Rights, common good, and
the separation of powers’ (2023) 86(3) Modern Law Review 599.
128 Žaneta Mikosa, ‘Implementation of the Aarhus Convention through actio popularis: Article
9(3) of the Aarhus Convention and Actio Popularis’ in Jerzy Jendroska and Magdalena Bar (eds),
Procedural Environmental Rights: Principle X in eory and Practice (Intersentia 2018) 261.
06 Suarez.indd 14406 Suarez.indd 14414/11/2024 13:2014/11/2024 13:20
Specic Content could Substantial and Procedural Environmental Rights 145
administrative decisions or acts or omissions causing environmental harm that are
in breach of individual rights – not public interest. is would be simply solved by
constitutional or statutory provisions expressly providing for broader standing for
nature upon any member of the public, as a political choice, having regard to the
constitutional framework of each country.129 e solution would entail, of course,
a constitutional recognition that all people have standing to uphold the public
interest pertaining to environmental matters, as a dierent type of interest but of
equal entitlement as standing to act in their own personal interest.130
Finally, concerning the third argument, it would be accurate to say that the
‘oodgates’ argument to preclude busybodies from accessing en masse to
environmental justice has no documented reasonable basis. Although with
certain limitations, common law countries are no strangers to actio popularis. For
instance, research done on the 17th and 18th-century case law of the Scottish
Court of Session showed that the defence of the commons was allowed under
certain circumstances, allowing the seriousness of the claim to be ltered. Popular
actions were sought to remedy generalised grievances against the commons, with
public bodies as defenders, ‘[i]n the nature of declaratory-judgement proceedings
that would clarify contested public rights.’ Furthermore, this public action was
given some preclusive eect, ‘[b]ut only as to suits brought by persons with the
same interest in the matter as the original pursuer and only when it was equitable
to do so.’131 Some commentators also cite, to that eect, the decision in Gouriet v
Union of Postal Workers132by the English and Wales Court of Appeal, before it was
ultimately overturned by the House of Lords. In that case, there was a short-lived
recognition of a remedy similar to the popular action, in which it has held that if
the Attorney-General declined to grant a relator action to a person wishing to sue
in the public interest, who would not otherwise be able to bring that proceeding
before the courts, the courts could grant that person a right to sue in their own
name.133
Some European countries have already enacted environmental actio popularis in
their constitutions or in statute for the protection of environmental rights, the
redress of environmental wrongs or breach of environmental law. For example, the
Portuguese Grundgesetz expressly states that, besides a damages award, judges in
popular action proceedings can issue injunction orders to promote prevention,
cease and prosecutions of infractions against public health, consumer rights, quality
129Ž aneta Mikosa (n 128) 270–272.
130 Bede Harris and Elizabeth Harris, ‘Interfering busybody or public-minded citizen? e actio
popularis as a model for reform of the rules of standing in constitutional cases in Australia’ (2018)
11(1) Journal of Politics and Law 62.
131James E Pfander, ‘Standing to sue: Lessons from Scotland’s actio popularis’ (2017) 66 Duke Law
Journal 1493.
132Gouriet v Union of Post Oce Workers [1977] 1 All ER 696, [1977] 3 All ER 70, [1978] AC 435.
133 Bede Harris and Elizabeth Harris (n 130) 65.
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146
of life, and environmental and cultural heritage conservation.134 It has nonetheless
established statutory controls of abuse of process for discarding manifestly
improbable lawsuits and preliminary enquiries conducted by the courts to establish
the seriousness of the claim.135 Latvian law, for instance, allows any member of the
public to legally challenge administrative decisions in breach of environmental
law, or that create threats of damage or environmental damage.136 is country’s
Supreme Administrative Court construes that actio popularis provision as an
exception to the general rule requiring a breach of an individual right to legally
challenge environmental decisions, which allows for broad standing provided
that the applicant proves the seriousness of the claim and an aim to protect public
common interests.137
In the case of Portugal, claimants have used popular actions for environmental
matters in relatively very low numbers when compared to its main use: consumer
protection. Only in 2023, 84 consumer protection popular actions against major
corporations made their way to the Portuguese courts, at a total value of around
€2 billion.138 Yet scholars have found, from petitioning the Portuguese judiciary
and looking into the Judiciary Statistics Information System, that only two popular
actions had been brought to rst-instance courts between 2007 and 2010, and
that there was no specic data available for any environmental popular actions up
to 2019. ey have attributed the underwhelming use of environmental popular
actions to several procedural hurdles cumbersome to citizen claimants.139 is
would show, at least at a preliminary stage, that popular actions are eective
in protecting the public interest, but that they would require coherent reform
and reasonable procedural streamlining to make them accessible as well for the
protection of collective environmental legal interests.
e data available in English for Latvia comes from the country’s 2019 OECD
Environmental Performance Review. During the period between 2005 and 2017,
the Environmental State Board – an environmental governmental authority –
received 668 appeals from various physical and legal persons and associations
against environmental-related actions of public authorities. e Board resolved
three-quarters of them, and the rest were brought to the Supreme Administrative
Court.140 ese numbers would allow reasonable deduction that controls for
abuse of judicial proceedings in environmental popular actions work, and that
134Constitution of the Portuguese Republic, s 52(3); Portuguese Law 83/95 (31 August 1995).
135 Alexandra Aragão, ‘Les intérêts dius, instruments pour la justice et la démocratie
environnementale’ (2015) 22 VertigO (Hors-série).
136Lat vian Environmental Protection Law 2006 (as amended), s 9.
137Ž aneta Mikosa (n 128) 261–283.
138Elisabete Miranda, ‘Portugal é um dos países europeus onde as ações populares mais crescem nos
tribunais’ El Expresso (Lisbon, 27 September 2023); Cristina Ferreira, ‘Acções populares contra
gigantes mobilizam milhões sem benefício para consumidores’ Público (Madrid, 10 June 2023).
139Fabiana Costa e Silva, ‘A invisibilidade da ação popular cível portuguesa em defensa do ambiente’
(LLM thesis, Universidade de Coimbra 2021) 60.
140 OECD, OECD Environmental Performance Reviews: Latvia (OECD 2019) 99.
06 Suarez.indd 14606 Suarez.indd 14614/11/2024 13:2014/11/2024 13:20
Specic Content could Substantial and Procedural Environmental Rights 147
environmental popular action litigation could further decrease when institutional
bodies provide the public with quality administrative decisions.
Other countries have also allowed for certain forms of broad standing for nature
to recover damages for environmental harm. For example, France amended its
Code civil (Articles 1246 to 1252) to allow recovery of environmental damages
against any person who would become liable due to their acts or omissions and to
grant standing to any person with sucient interest. at interest can be upheld,
in principle, by anyone with territorial proximity to the place where the damage
happened and with a stake in the legitimate collective interest of redressing an
‘appreciable attack to ecosystem elements or functions or to collective benets for
mankind from the environment’.141 Besides these people, deemed with sucient
interest in environmental harm redress are the French State, the French Biodiversity
Agency, regional and local authorities, and environmental NGOs recognised or
created ve months prior to the ling of the lawsuit and that have within their
objects clause nature protection and environmental defence.142
Consequently, policy-based arguments such as the ‘oodgates argument’, in this
paper’s view, would lack any empirical basis. ese types of arguments are used to
protect courts from excessive workload in common law jurisdictions by means of
altering interpretations of substantive law.143 A reason why popular actions have not
been adopted in common law jurisdictions is one of eciency: were environmental
actio popularis to be adopted, courts would be inundated with lawsuits because the
rule of legal standing for nature would be overly broad.144 However, they do so as
a ‘blanket ban’, without providing for a method to discerning claims with little or
no merit from those that do actually have it, or actually giving factual or statistical
evidence to reasonably foresee the supposed ood of litigation.
In any case, the ood of litigation phenomena must be analysed in context. High
numbers in litigation do not necessarily mean that the courts are inundated with
environmental lawsuits. It requires, by all means, qualitative and quantitive analysis
141Some French scholars perceive this standing granted to any person with sucient interest (qualité
et intérêt d’agir) as an enlargement of standing for the environment. ey state that in this case
French law from ‘an action requiring a specic personal interest as it exist today in France to a
universal or popular action as it exists in Latin American countries.’ Marie-Pierre Camproux-
Dufrenne, ‘L’accès au juge civil français en cas d’atteintes à l’environnement: une diversité d’actions
pour répondre à la diversité des préjudices’, in Julien Bétaille (ed), Le droit d’accès à la justice en
matière d’environnement (Presses de l’Université Toulouse Capitole 2016) 203, para 44.
142French Civil Code, ss 1246–1252.
143 For example, in Fletcher v Commissioners of Public Works [2003] IESC 13 [54], Keane CJ
recognised the ‘oodgates’ argument as a valid policy argument to deny recovery of damages for
mental anguish or grief resulting other than a recognisable psychiatric disorder. He described the
factors related to that argument as ‘the possibility of the courts being swamped with trivial and
unmeritorious claims, imposing particular strains on the legal system and making severe demands
on judges who have to segregate serious claims from the trivial or even fraudulent.’
144Ellie Margolis, ‘Closing the oodgates: Making persuasive policy arguments in appellate briefs’
(2001) 62(1) Montana Law Review 59.
06 Suarez.indd 14706 Suarez.indd 14714/11/2024 13:2014/11/2024 13:20
148
that would exceed the scope of this paper. For instance, in Colombia, a South
American jurisdiction with the collective right to a healthy environment and an
environmental actio popularis – besides having a rights of nature protection regime
through constitutional writs – the Administrative Courts received a number of
1099 environmental popular actions during 2023.145 is statistic has to be read
considering several factors – e.g. that the Colombian legal system provides for
gratuity of costs to popular action plaintis, that Colombia has problems of illegal
extracting activities such as mining or forestry in several regions aecting vulnerable
communities, or that the country has a population of over 50 million inhabitants,
and a geographical extension of 1,142,748 km2.
A relatively recent study about the quality of Ecuadorian justice in environmental
matters, over a small sample of 52 judgements issued between 2009 and 2021,
found that the majority of the claims – a total of 22 constitutional writs – were
related to the Indigenous Peoples’ right to previous consultation on environmental
matters paired with the constitutional substantive rights of nature.146 is study is
certainly inconclusive in regard to massive environmental litigation in Ecuador due
to the meagre size of the sample. Moreover, it would not portray the actual number
of rights of nature claims for that year – in 2021, a total of 8,444 constitutional
writs aecting dierent constitutional rights were brought before the Ecuadorian
courts.147 However, the same study shows that in those sampled cases rst instance
courts were eager to dismiss rights of nature constitutional writ claims at the
admissibility stage, on grounds of lack of constitutional relevance or existence of
other more eective ordinary proceedings to protect these rights.148
As a nal remark on this subject, the idea of broader standing for nature in Ireland
is anything but new. Back in 2008, the Law Society of Ireland’s Law Reform
Committee had already proposed the enactment of ‘[a]n umbrella environmental
regulatory instrument for citizen enforcement of environmental law.’ e
Committee took note of relevant statutes in other common law countries that
allowed members of the public and e-NGOs to enforce environmental law if
the breach was likely to cause environmental harm, but was also cognisant of the
need to qualify standing ‘[t]o minimise duplication of enforcement and vexatious
claims.’149
145Consejo Superior de la Judicatura, Informe de la Rama Judicial al Congreso de la República 2023
(Imprenta Nacional de Colombia 2024) 67 accessed 3 July
2024.
146HIVOS, Obser vatorio de Derechos y Justicia, Informe sobre la calidad de justicia en materia de
derechos ambientales (2021)
CALIDAD-DE-LA-JUSTICIA-EN-MATERIA-AMBIENTAL-FINAL.pdf> accessed 4 July
2024.
147 Portal de Estadística Judicial, ‘Causas – Constitucional’ (Consejo de la Judicatura del Ecuador
2024).
148H IVOS, Observatorio de Derechos y Justicia (n 146).
149Law So ciety of Ireland’s Law Reform Committee (n 68) 62–63.
06 Suarez.indd 14806 Suarez.indd 14814/11/2024 13:2014/11/2024 13:20
Specic Content could Substantial and Procedural Environmental Rights 149
It transpires from these considerations that there is a public interest in the
protection of the Irish commons. But for the avoidance of any doubt, as a proposal
for a new provision in Bunreacht na hÉireann, the referendum bill should outline
a provision whereby there is a public interest of any member of the public in
environmental protection, dierent to individual interests of any person, that has
an equal entitlement to standing to legally challenge environmental decisions, to
seek enforcement of existing environmental law or to seek objective environmental
harm redress. Following this declaration, it should also be expressly mentioned
that while statute or court orders should determine the way this broader standing
for nature will operate in practice, any member of the Irish will be deemed to have
sucient interest concerning any of these legal challenges related to environmental
aairs. is duty could be complemented with an interpretation clause imposing
upon the courts the duty to interpret this broad environmental access to justice to
the fullest extent possible, striking a balance between the need for judicial review of
environmental decisions and access to environmental justice, and in respect of the
principle of non-prohibitive expenses.
Conclusion
Point 1.3 of the CABL’s Recommendations, which deals inter alia with
entrenching environmental human rights in the Irish Constitution, would certainly
call for further improvement before a dra for a bill for constitutional reform
could be submitted to the Oireachtas and to the Irish people. Despite its lack of
specic content and brevity, the proposal is a giant leap forward in incorporating
substantive and procedural environmental human rights in this jurisdiction. From
a wider perspective, it is also very encouraging that, from a bottoms-up approach
rooted in litigation, the Irish jurisdiction is – slowly but surely – coming to
terms with the need to ensure eective environmental protection in the key of
constitutional rights with rooting in EU law, despite the present legal limitations
for their full recognition.
However, this does not mean that constitutional reform eorts, if attained,
will immediately be a catalyst for change. As this paper attempted to show, in
order to avoid giving a mere aspirational character to150 or devoiding of any
150Aspirational legislation has been dened as ‘[l ]aws which despite their oen ambitious ocially
declared objectives are designed to remain ineective’. According to some scholars, this type
of legislation is ‘[p]redominantly perceived as failing legislation and as a problem to modern
societies.’ is makes aspirational or symbolic legislation more of a way to manage than resolve
environmental problems: ‘[s]ymbolic legislation may be very eective in achieving political-
strategic goals such as removing ‘hot’ issues form the public agenda, whilst being very ineective
in terms of a substantive solution for the respective issues at stake.’ Several factors, such as ‘[a] high
level of public attention, high regulatory costs vis-à-vis low regulatory benets, acute and value-
laden conict constellations, an asymmetrical distribution of information and a high level of issue
complexity’, provide favourable conditions for this type of legislation to emerge. Jens Newig,
06 Suarez.indd 14906 Suarez.indd 14914/11/2024 13:2014/11/2024 13:20
150
eectiveness151the right to a healthy environment and broader standing for nature,
some specic content must be endowed to the rst and the protection upon any
person of a new, dierentiated public interest in the environment to the latter.
e constitutional reform bill can draw inspiration from a wide array of European
and international experiences that have had both successes and mistakes to be
duly considered. It can also leave room for statutory provisions and regulation to
determine the extent of the environmental governance framework overhaul these
new constitutional rights could imply for Irish law.
Furthermore, taking into account that there is a generalised lack of enforcement
of existing environmental law and of international human rights, draers of the
proposed constitutional reform bill should take into account the need for clear,
well-designed provisions that unequivocally establish positive or negative duties
upon the State and private persons. Overcoming non-compliance and institutional
deterrents to ensure compliance with environmental rights also entails an explicit
commitment to materialise these constitutional rights as more than mere directives
of social policy. ey should be seen as political choices of the State translating
into exigible duties in the face of a planetary environmental crisis aecting Ireland,
the enforcement of which cannot be hampered by institutional apathy, abstract
budgetary demands or unchecked administration eciency arguments.
‘Symbolic environmental legislation and societal self-deception’ (2007) 16(2) Environmental
Politics 276.
151is happened with the Nature Restoration Regulation Bill at the EU Parliament during July
2023. Most of its concrete and clear restoration targets were amended to be deleted in full. e
democratic process was tainted by disinformation and false claims about the scope of the proposal,
and it also witnessed political polarisation ‘an anti-ecological centre-right alliance and a coalition
of le/green parties.’ At the time, there was a generalised feeling that the amendments gutted
the proposal from its most ambitious conservation measures, leaving it without teeth. Some
venture into characterising it more like a defeat rather than a victory for environmental rule of
law. Kevin O’Sullivan, ‘What is the EU’s nature restoration law and why was it controversial?’ e
Irish Times (Dublin, 15 July 2023); Lorna Bogue, ‘We’ve just had the hottest week on record and
we’re cheering a gutted EU Nature bill?’ (e Journal, 13 July 2023) <https://www.thejournal.ie/
readme/nature-restoraton-law-6117454-Jul2023/> accessed 17 July 2023. By November 2023,
the nal negotiations on the bill had achieved targets to restore 20% of EU land and seas by 2030,
and 90% of degraded habitats by 2050 – which were deemed to fall short of the 30% target agreed
in the Kunming-Montreal Protocol to the UN Convention on Biological Diversity. However,
the right-wing groups managed to secure ‘several carveouts for farmers’, such as an ‘emergency
brake’ to freeze environmental targets were food production to be threatened, or the removal of
a requirement to ensure 10% of farmland had landscape elements – e.g. hedgerows, ower strips.
Fortunately, the bill was nally passed by June 2024 with a wafer-thin majority aer a last-minute
change of heart by the Austrian delegate, despite political backlash, erce opposition from the
agri-industrial lobby in that country and serious questions about clear and consistent funding for
future EU ecosystem restoration endeavours. Ajit Niranjan, ‘EU strikes landmark deal on law to
restore and protect nature’ e Guardian (London, 10 November 2023).
06 Suarez.indd 15006 Suarez.indd 15014/11/2024 13:2014/11/2024 13:20
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