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

On 31 July 2020, the Supreme Court of Ireland quashed the government’s National Mitigation Plan, the centrepiece of the Irish government’s climate mitigation policy, because the Plan failed to specify the manner in which it was proposed to achieve the “national transition objective,” as required under the 2015 Climate Act. The “national transition objective” is defined by the 2015 Act as a “transition to a low carbon, climate resilient, and environmentally sustainable economy” by 2050.

The Supreme Court’s judgment has correctly been described by the UN Special Rapporteur on human rights and the environment, David R Boyd, as a “landmark decision.” The case is one of a small number of high-profile “strategic” climate cases globally, in which the highest national court of a country has found that a government’s climate mitigation policies do not comply with the law. In December 2019, the Supreme Court of the Netherlands ruled that the Netherlands has a positive obligation under the ECHR  to reduce its emissions by at least 25% by the end of 2020, compared to 1990 levels. In April 2018, the Supreme Court of Colombia ordered the formulation and implementation of action plans to address deforestation in the Amazon based on the links between fundamental rights and the environment; intergenerational equity; and the Colombian Amazon being recognised as a “subject of rights.” Systemic climate cases are also working their way through the national courts in Norway, Switzerland, Belgium, France, Germany, Poland, the United States, Canada, Peru and South Korea. The Irish Supreme Court’s judgment may offer lessons for these cases. Three aspects of the judgment are discussed here: the clear judicial guidance on the government’s climate obligations; the Court’s refusal to recognise standing for corporate bodies to raise personal constitutional and ECHR rights; and the Court’s clarification that there is no unenumerated/derived constitutional right to a healthy environment under Ireland’s Constitution.

The arguments made by the parties in the High Court

In the High Court, Friends of the Irish Environment (FIE, a non-profit company limited by guarantee and a charity) claimed that the 2017 National Mitigation Plan, adopted under the 2015 Climate Act, was ultra vires the 2015 Climate Act and violated constitutional and ECHR rights. FIE relied on the fact that the Plan envisages a significant increase (c.10%) in emissions over the period 1990 to 2020 (and an increase over the life of this Plan, which was meant to cover an initial period between 2017 and 2022), despite the fact that the government had repeatedly endorsed the Intergovernmental Panel on Climate Change’s (IPCC) advice that emissions would need to fall by at least 25 to 40% between 1990 and 2020 to help limit warming to +2°C above pre-industrial levels. FIE highlighted that the Paris Agreement’s aims of holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C now implied an even steeper reduction trajectory, as advised by the IPCC in SR15.  

The IPCC’s “25-40%” reduction advice from the Fourth Assessment Report (AR4) formed the basis for Ireland’s National Climate Policy Position of 2014, which sat outside the 2015 Climate Act.  Under this policy, the government aimed to reduce emissions by at least 80% (compared to 1990 levels) by 2050 across the electricity generation, built environment and transport sectors; and in parallel, would pursue “an approach to carbon neutrality in the agriculture and land-use sector, including forestry, which does not compromise capacity for sustainable food production.”

The government’s response to FIE’s case was to argue that the Plan was not justiciable and that FIE (as a company, rather than a natural person) did not have standing to litigate personal rights under the Constitution and the ECHR.

The High Court’s judgment

The High Court held that the Plan was intra vires the 2015 Climate Act because the government enjoys a “considerable margin of discretion” in the area of climate policy. The High Court accepted that FIE had standing to challenge the Plan on fundamental rights grounds on the basis of its “interests” and also accepted “for the purposes of the case” the existence of an unwritten constitutional right to an environment consistent with human dignity. However, the High Court held, with little analysis, that even if fundamental rights were engaged, it could not be said that the Plan itself violates these rights or puts them at risk.

In February 2020, FIE was granted permission to appeal the decision of the High Court directly to the Supreme Court (“leapfrogging” the Court of Appeal). In its determination, the Supreme Court noted that the case raised “issues of general public and legal importance” and that there was no dispute between the parties as to climate science, the adverse effects of climate change, or as to the fact that emissions are likely to increase over the lifespan of the Plan.   

In June 2020, the case was heard over two days by an exceptional seven-judge formation of the Supreme Court – a composition reserved for cases of particular importance or complexity. 

The Supreme Court’s judgment

Judicial guidance on the state’s obligations

The Supreme Court’s judgment focused on section 4 of the 2015 Climate Act, which stipulates that a Plan must “specify” the manner in which it is proposed to achieve the national transition objective and the policy measures required to achieve same. The Supreme Court held that a National Mitigation Plan must be “sufficiently specific” as to how the National Transition Objective would be realised over the whole period to 2050, even though the Plan itself would be subject to revision every five years. The Supreme Court explained that the purpose of requiring the Plan to be specific is transparency such that any “interested member of the public” can decide whether the Plan is “effective and appropriate” for meeting the National Transition Objective by 2050.

Unlike the High Court, the Supreme Court attached “significant weight” to the views of Ireland’s Climate Change Advisory Council, an expert body established under the 2015 Climate Act, which had described Ireland’s emissions projections to 2035 in its 2018 Annual Report as “disturbing.” On the thorny issue of justiciability, the Supreme Court found that whether the Plan meets the specificity requirements of section 4 is a matter of law and is justiciable. By enacting the 2015 Climate Act, what might once have been “policy became law” and the Supreme Court was entitled to review the Plan for compliance with the requirements of the 2015 Climate Act.

In reviewing the Plan, the Supreme Court found that it fell “well short of the level of specificity required” to provide transparency and comply with section 4 of the 2015 Climate Act. The Supreme Court characterised the policies contained in the Plan as “excessively vague” and “aspirational,” leaving “too much… to further study or investigation,” citing examples from the agriculture chapter. At the hearing, the Supreme Court considered the below chart from the Plan, which showed projections of emissions out to 2035 and the precipice between 2035 and 2050, requiring an extremely steep trajectory of emission reductions over this 15-year period. The Court ultimately concluded that “a reasonable and interested observer” would not know from the information in the Plan how the government is intending to achieve the National Transition Objective by 2050. The Supreme Court therefore quashed the Plan for non-compliance with the 2015 Climate Act and a new Plan will now need to be drawn up. Significantly, in doing so the Supreme Court noted that the Plan was being quashed “on grounds which are substantive rather than purely procedural.”

These strong judicial statements from the Supreme Court on the government’s statutory obligations should be welcomed as – to quote Dr Áine Ryall – they  “give teeth to the 2015 Climate Act.” The 2015 Climate Act was disparaged as “aspirational” by many when it was enacted in 2015 and strongly criticised for its lack of binding targets. The Supreme Court has made clear that a compliant Plan should have in fact been a 33-year mitigation plan rather than just a five-year one, albeit one which is likely to be adjusted periodically in light of developments in knowledge, data and technology. Alignment with the National Transition Objective (or any revised version thereof arising from amendments to the Climate Act that are to be proposed later this year) will therefore be an important yardstick for assessing the adequacy of any new plan.

Denying standing to corporate bodies to litigate personal constitutional and ECHR rights

Having decided the case on the basis that the Plan was ultra vires the 2015 Climate Act, the Supreme Court did not, strictly speaking, need to address the alleged constitutional and human rights breaches arising from the adoption of the Plan. However, the Supreme Court made some obiter remarks on two issues which it indicated could have significant implications for future cases: standing for corporate bodies to litigate personal constitutional and ECHR rights and whether there is a constitutional right to a healthy environment.

A commendable aspect of the High Court’s judgment was its common-sense approach to standing. The High Court found that FIE enjoyed standing to challenge the Plan because the case raised important issues of environmental concern and of a constitutional nature that impact both the NGO’s members and the public at large. In Irish law, the traditional test for standing in a constitutional challenge is that a plaintiff’s rights or interests had been adversely affected or were in imminent danger of being adversely affected. However, it is also well recognised that a more relaxed approach may be in order in certain cases where there are “weighty countervailing considerations” particularly where constitutional, European and ECHR rights are at issue. The Supreme Court used this opportunity to further clarify standing rules for corporate bodies – distinguishing the present case from cases in which the superior courts have previously recognised the entitlement of NGOs to litigate on behalf of others. The Supreme Court stated that standing rules are “flexible but not infinitely so.”

The Court found that in circumstances where FIE did not itself enjoy personal rights to life and bodily integrity it did not have standing to maintain this aspect of the case and did not come within any of the exceptions to the standing rules. The Supreme Court queried why an individual plaintiff, who would have undoubtedly enjoyed such rights, was not joined to the proceedings to overcome the standing hurdle. The Court said that the risk of exposure to costs for an individual from unsuccessful proceedings (which could be several hundred thousand euros) was “no real explanation” for the case not being brought by an individual rather than an NGO. These obiter remarks are hard to reconcile with the prohibitive legal costs regime in Ireland.

A derived constitutional right to a healthy environment?

FIE had claimed that a Plan not calculated to achieve emission reductions in the short term, and that allowed emissions to rise, violated the rights to life, bodily integrity and an environment consistent with human dignity under the Irish Constitution and Articles 2 (the right to life) and 8 (the right to respect for private and family life and home) of the ECHR.

The Supreme Court only dealt with the right to an environment consistent with human dignity (or a right to a healthy environment, as the Supreme Court described it). A right to an environment consistent with human dignity was previously recognised as an unwritten, latent personal constitutional right by the High Court in a case in 2017 and affirmed by the High Court in the present case. The government strongly contested the existence of such a right in both the High Court and the Supreme Court, arguing that the High Court’s decision was obiter, amongst other things.

The Supreme Court found that “as thus formulated” a right to a healthy environment could not be “derived from” the text or structure of the Constitution. The Supreme Court stated that the right to a healthy environment was “superfluous” if it could be encompassed within the right to life or bodily integrity – a long-established unwritten constitutional right not to have one’s health endangered by the actions of the State. Or in the alternative, the right to a healthy environment was “excessively vague and ill-defined” if it did extend beyond these existing rights.  

The problem with “greening” existing rights like the right to life and bodily integrity is that there are many situations where the impacts of environmental harm on humans are scientifically uncertain or the impacts are confined to nature. Existing rights, like the right to life or bodily integrity, cannot be stretched to deal with these kinds of environmental harm. That said, the right recognised by the High Court was quintessentially anthropocentric in nature (a right to an environment consistent with human dignity), making it perhaps a stretch to argue that the right thus formulated could embrace environmental harm beyond harm to humans.

The Supreme Court’s objection that a right to a healthy environment is too vague might be contested on the basis that fundamental rights are by their nature vague and subject to evolution in light of prevailing ideas (these arguments, and a number of other compelling arguments in favour of constitutionalising a right to healthy environment have been documented by Dr David Boyd, details of which can be found here.) A close reading of the judgment reveals, however, that the Supreme Court’s opposition to such a right may be confined to the recognition by the judiciary of such a right by way of the unenumerated or derived rights doctrines. The Supreme Court stressed that in most countries that have a constitutional right to a healthy environment, this has been enshrined through formal constitutional amendments, signalling that a popular referendum would be a more appropriate method for adding such a right to the Constitution.

The proposed Citizens’ Assembly on Biodiversity Loss could provide a platform for a public conversation on constitutionalising the right to a healthy environment, perhaps embracing environmental harms beyond harms to humans – building on the successes of progressive environmental initiatives such as the Citizens’ Assembly on Climate Change and “Right2Water,” a grassroots anti-privatisation of water campaign. In the long run, this could result in the enshrining of a more considered right to a healthy environment in the Constitution that enjoys greater popular legitimacy and understanding.

Of course, a campaign to insert a right to a healthy environment in the Constitution will not be achieved overnight. Importantly, the Supreme Court has indicated that “there may well be cases, which are of an environmental nature, where [existing] constitutional rights and obligations may be engaged.” The Supreme Court noted that had the case been brought by an individual with standing, it would have had to consider the circumstances in which climate mitigation measures (or the lack of them) might be said to encroach upon the rights to life or bodily integrity. The Supreme Court went on to give clues as to other kinds of constitutional rights-based arguments it might be willing to entertain in future, noting that:

“[It] would not rule out the possibility that the interplay of existing constitutional rights with the constitutional values to be found in the constitutional text and other provisions, such as those to be found in Art. 10 [on the ownership of natural resources and state property] and also the right to property and the special position of the home, might give rise to specific obligations on the part of the State.”

This passage makes clear that the Supreme Court is not closing the door to the use of rights-based arguments, in future climate litigation.

Conclusion

As a country with the third highest per capita emissions in the EU, Ireland has been notoriously slow to move in the direction of decisive and ambitious climate action. Against this backdrop, the Supreme Court’s willingness to hold the government to account and to quash a Plan not designed to achieve emission reductions is seismic for Irish climate law and policy. The government will now have to prepare a compliant plan in the knowledge that it could be subject to judicial scrutiny in the future if the new Plan does not come up to scratch. Reflection is also needed on the implications of the refusal to recognise a derived right to a healthy environment – but the doors of the courtroom have importantly been left wide open for individuals to litigate existing constitutional rights and state obligations. If brave individuals are to take up the baton and vindicate their rights through court, the costs barriers to environmental public interest litigation will have to be addressed as a matter of urgency.