It is no secret that Ireland’s infrastructure is too often stalled in the courts, and Minister for Public Expenditure Jack Chambers is right that a €275 billion National Development Plan cannot be delivered if projects sit for years under the shadow of judicial review. There is an understandable feeling that the sheer extent and complexity of environmental regulation creates uncertainty and that decision-makers, unsure how a judge might rule, hedge and delay as a result. That feeling is not irrational. But the Minister’s apparent focus on Section 15 of the Climate Act, and his officials’ proposal to scrap it entirely, mistakes the nature of the problem.
Section 15 is a modest provision. It asks public bodies, in so far as is practicable, to act consistently with the State’s climate plans and objectives. It was described as a sense check, not a straitjacket, by the Supreme Court this year in the Coolglass windfarm case. In that instance, the court found that the section requires bodies to engage with climate goals but imposes no obligation beyond their existing functions. That judgment reined in an earlier, more expansive High Court reading.
The difficulties faced by infrastructure projects largely lie elsewhere. It is true that the application of EU environmental law appears to generate litigation in Ireland more readily than in many other member states, and the Government is entitled to ask why that is the case. But the surge in planning challenges since 2017 was driven by housing developments and access-to-justice rules derived from the Aarhus Convention, not by climate arguments. Most of those challenges succeed. When litigants win most of the time, the lesson may be that the original decisions were flawed, not that the right to challenge them is excessive.
Nor would removing Section 15 deliver much. The heavy machinery of environmental litigation lies in Environmental Impact and Appropriate Assessments, most of them required by European law and beyond the reach of the Oireachtas. Strip out the domestic requirement and those grounds remain.
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Since its formation, this Government has shown little inclination to regain the ground which has been lost on Ireland’s climate targets. There is, of course, a balance to be struck between meeting those targets and addressing Ireland’s glaring infrastructure deficit. The narrow carve-out in the Critical Infrastructure Bill was defensible. The proposal to revoke Section 15 for every public body is not. Chambers now says the Government should keep the section under review.
Before dismantling the central accountability mechanism of its climate law, the Government should answer one question. Which projects have actually been stopped by Section 15, rather than the European rules that will survive its removal?
