Whither Constitutional Environmental (Rights) Protection In Ireland After ?Climate Case Ireland'?

• Author: Jamie McLoughlin
• Position: BCL (NUI), BCL (Oxon), PhD student and Irish Research Council Government of Ireland postgraduate scholar, UCD Sutherland School of Law
• Pages: 26-46

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WHITHER CONSTITUTIONAL

ENVIRONMENTAL (RIGHTS) PROTECTION IN

IRELAND AFTER ‘CLIMATE CASE IRELAND’?

Abstract: Although the Supreme Court rejected the claim that the Irish Constitution protects an

unenumerated right to a healthy environment in Friends of the Irish Environment v The Government of

Ireland, it clearly left the door open to future environmental (rights) litigation based on the Constitution. This

article thus explores how the Constitution might be used in future to advance arguments that the State has

obligations to protect the environment, in particular from the threat posed by climate change.

Author: Jamie McLoughlin, BCL (NUI), BCL (Oxon), PhD student and Irish Research Council

Government of Ireland postgraduate scholar, UCD Sutherland School of Law.

Introduction

The unanimous decision on 31 July 2020 of a seven-judge Supreme Court in Friends of the

Irish Environment v The Government of Ireland,

1

or ‘Climate Case Ireland’,

2

to quash the State’s

plan for tackling climate change because it was insufficiently detailed in spelling out how

carbon emissions would be reduced, was hailed as a ‘landmark’ moment.

3

It was one of the

few instances (at that point) in the context of global climate/environmental litigation, where

a national apex court had found a government’s response to the threat of climate change to

be legally inadequate.

4

Since then, a number of other national courts have found government

responses to climate change to be insufficient to protect human rights,

5

and several cases

alleging that state inaction or inadequate state action on emissions reductions constitutes a

breach of human rights obligations under the ECHR have been launched before the ECtHR

in Strasbourg.

6

However, while human rights-based arguments have been crucial in

convincing courts to rule in favour of climate and environmental activist litigants in other

*The author wishes to thank Dr Mark Coen, Mr Matthew Doncel, and Ms Shan non Russell-Cowan f or their

helpful comments on an earlier draft of this article, and the anonymous reviewers for their constructive

feedback.

1

[2020] IESC 49.

2

For critical analyses of the main issues in the case, see Áine Ryall, ‘Climate Case Ireland: Implications of the

Supreme Court Judgment’ [2020] Irish Planning and Environmental Law Journal 106; Orla Kelleher, ‘The

Supreme Court of Ireland’s decision in Friends of the Irish Environment v Government of Ireland (“Climate

Case Ireland”)’ (Blog of the European Journal of International Law, 9 September 2020)<

https://www.ejiltalk.org/the-supreme-court-of-irelands-decision-in-friends-of-the-irish-environment-v-

government-of-ireland-climate-case-ireland/> accessed 21 July 2021; Orla Kelleher, ‘A Critical Appraisal of

Friends of the Irish Environment v Government of Ireland’ (2021) 30 RECIEL 138; Maeve O’Rourke, Rónán

Kennedy and Cassy Roddy-Mullineaux, ‘When is a Plan Not a Plan? The Supreme Court Decision in “Climate

Case Ireland”’ [2020] Irish Planning and Environmental Law Journal 60; and Victoria Adelmant, Philip Alston,

and Matthew Blainey, ‘Human Rights and Climate Change Litigation: One Step Forward, Two Steps Backwards

in the Irish Supreme Court’ (2021) 13 Journal of Human Rights Practice 1.

3

UN Special Rapporteur on Human Rights and the E nvironment, ‘Amidst a Climate and Biodiversity Cr isis,

Hope Emerges: Friends of the Irish Environment Win Historic “Climate C ase Ireland” in the Irish Supreme

Court’ (Climate Case Ireland, 31 July 2020) <https://www.climatecaseireland.ie/amidst-a-climate-and-

biodiversity-crisis-hope-emerges-friends-of-the-irish-environment-win-historic-climate-case-ireland-in-the-

irish-supreme-court/> accessed 22 July 2021.

4

Kelleher (n 2).

5

Selected examples include Germany, France, and Belgium. Details of these cases and others can be found at

the database of climate cases maintained by the Sabin Centre for Climate Change Law at Columbia University,

available at: <http://climatecasechart.com/climate-change-litigation/> accessed 22 July 2021.

6

For example, Duarte Agostinho and Others vs. Portugal and Others (Application no. 29371/20) and Union of Swiss

Senior Women for Climate Protection v. Swiss Federal Council and Others (Application no. 53600/ 20).

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jurisdictions, this was not the case in Ireland. The judgment in ‘Climate Case Ireland’

essentially turned on statutory interpretation and not on the issue of whether insufficient

State action in responding to climate change amounted to a breach of constitutional or

human rights. Indeed, the Supreme Court rejected the argument that the Irish Constitution

protects a right to a healthy environment. Nonetheless, the Court made a number of

intriguing comments about the potential for the Constitution and human rights to form part

of future environmental litigation.

Whereas previous literature has provided critical analysis of ‘Climate Case Ireland’ as a whole,

this article homes in on the under-scrutinised dicta of the Supreme Court which signal the

potential for the Constitution to be a source of State environmental protection obligations.

7

For context, the first half of this article reviews the Supreme Court’s judgment in ‘Climate

Case Ireland’, paying close attention to the constitutional rights arguments made in the case.

It will also critique the Court’s (strictly speaking, obiter) finding regarding the claimed

unenumerated constitutional right to a healthy environment. The second half will then

explore the jurisprudence concerning those constitutional provisions which the Supreme

Court suggested may have a role to play in future environmental/climate litigation in order

to understand how they might provide a basis for advocating for a State duty of

environmental protection. In doing so, the article paints a picture of where constitutional

environmental (rights) protection in Ireland may go in the future.

‘Climate Case Ireland’

Background to the case and arguments of the parties

In 2017, the Irish Government adopted a National Mitigation Plan (NMP) pursuant to

section 4 of the Climate Action and Low Carbon Development Act 2015 (‘2015 Act’). The

function of this plan was to set out how the State would seek to achieve its National

Transition Objective (NTO) of creating a ‘low carbon, climate resilient, and environmentally

sustainable economy’ as defined in section 3 of the 2015 Act, by the year 2050.

8

The

fundamental issue in ‘Climate Case Ireland’ was the adequacy of the NMP. Also in 2017,

Barrett J declared in a case involving a challenge to the granting of an extension of planning

permission for the construction of a runway at Dublin Airport that Article 40.3 of the

Constitution guaranteed an unenumerated personal constitutional ‘right to an environment

consistent with the dignity and wellbeing of citizens at large’.

9

The High Court’s

acknowledgement of this right, coupled with the historic decision in the Urgenda climate case

in the Netherlands,

10

provided the impetus for Friends of the Irish Environment (‘FIE’) –

an NGO with a track-record of environmental public interest litigation – to take the

Government to court over its climate mitigation plan.

11

In January 2019, FIE’s judicial review challenge to the adoption of the NMP – ‘Climate Case

Ireland’ – was heard in the High Court. FIE claimed that the NMP was unlawful and ultra

vires the Climate Action and Low Carbon Development Act 2015 because it did not detail

how the NTO would be achieved. It was also alleged that the plan was in breach of both

7

(n 2).

8

Climate Action and Low Carbon Development Act 2015, s 3.

9

Friends of the Irish Environment v Fingal County Council [2017] IEHC 695 [261].

10

Orla Kelleher, ‘The Revival of the Unenumerated Rights Doctrine: A Right to an Environment and its

Implications for Future Climate Change Litigation in Ireland’ (2018) 25(3) Irish Planning and Environmental

Law Journal 97.

11

For more information on the background to the case, see generally Climate Case Ireland’s website:

<https://www.climatecaseireland.ie/> accessed 22 July 2021.