Supreme Court ruling a turning-point for climate governance in Ireland

The Supreme Court’s landmark ruling in Friends of the Irish Environment v Government of Ireland is a significant victory for climate action. The unanimous judgment of the seven-judge court was delivered by the Chief Justice, Mr Justice Frank Clarke.

The court determined that the National Mitigation Plan was unlawful and should be quashed. In adopting the plan the Government had failed to comply with the requirements of the Climate Action and Low Carbon Development Act 2015. It must now make a new plan.

Crucially in this case, the Supreme Court determined that the plan was subject to review by the courts. Judicial review of the plan did not amount to an impermissible venture by the courts into areas of policy, as the Government had argued. As the Chief Justice observed: “What might once have been policy has become law by virtue of the enactment of the 2015 Act”.

Following careful analysis of the content of the plan, the court concluded that it fell “well short” of the level of detail required under the 2015 Act. A reasonable and interested member of the public must be able to know, by reading the plan, how the Government intends to meet the National Transition Objective by 2050.

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The Supreme Court provided important guidance on the level of detail that must be included in the plan if it is to comply with the 2015 Act. This is a significant development in the law to compel more robust climate action by the Government. It really gives teeth to the 2015 Act.

Detailed policy measures must be specified in the plan, demonstrating how the Government intends to deliver on its climate obligations. Setting out vague or aspirational policies will not suffice.

Any alleged failure to provide the necessary level of detail in a new plan may be subject to further review by the courts.

The judgment is strong on public participation and transparency in the formation and publication of climate policy. This is very welcome. It underpins the core values that should inform all environmental decision-making – participation, transparency and accountability.

The judgment is also timely. The Programme for Government pledges to deliver new draft climate legislation (the Climate Action Bill) within the first 100 days in office.

The Bill will set out how five-year carbon budgets are to be determined. It will also provide for a more robust Climate Action Council. It is notable here that, when scrutinising the National Mitigation Plan, the Supreme Court placed “significant weight” on the views of the current Climate Change Advisory Council. For example, the council in its 2018 annual report stated that Ireland is “completely off course” as regards its commitments to address climate change. A powerful Climate Action Council is vital for accountability in climate governance.

The Supreme Court determined that Friends of the Irish Environment as a corporate entity, did not have standing to bring the various rights-based claims it had put forward in the case.

Important observations

In 2017, in a different case that was also brought by FIE, the High Court had recognised an “unenumerated” constitutional right to an environment that is consistent with the dignity and well-being of citizens.

The challenge to the National Mitigation Plan provided the Supreme Court with its first opportunity to consider whether such a right is indeed recognised in the Constitution.

The Supreme Court considered that “the asserted right to a healthy environment is either superfluous (if it does not extend beyond the right to life and the right to bodily integrity) or is excessively vague and ill-defined (if it does go beyond those rights)”. The court took the view that such a right could not be “derived” from the Constitution.

The Chief Justice did, however, make a number of important observations on future possibilities here. In a key passage of the judgment he remarked that:

There “may well be cases, which are environmental in nature, where constitutional rights and obligations may be engaged”. For example, if FIE had established that it had standing to assert the rights-based claims in this case, then it would have been necessary for the court “to consider the circumstances in which climate change measures (or the lack of them) might be said to interfere with the right to life or the right to bodily integrity”.

The Supreme Court judgment confirms that where policy has been incorporated into law (as was the case here with the 2015 Act), or where policy impinges on the rights guaranteed under the Constitution, the courts have a key role to play.

Looking to the future, the Chief Justice mentioned the “interplay” between existing constitutional rights and the values found in the text of the Constitution, and other provisions such as those in Article 10 (concerning natural resources), the right to property and “the special position of the home”. These constitutional provisions might, in particular circumstances, give rise to specific obligations on the State.

It remains to be seen how any such rights or obligations may evolve in future environmental litigation.

There is enormous interest globally in the role of courts in driving more ambitious and more urgent climate action and holding governments to account for breach of climate obligations.

The Supreme Court judgment is a turning-point for climate governance in Ireland.

Attention turns now to the forthcoming climate legislation and how the Government will go about delivering a new, compliant National Mitigation Plan.

Áine Ryall is Co-Director of the Centre for Law & the Environment at UCC