Ireland: Ireland's Climate Mitigation Plan Upheld In Landmark Challenge

Last Updated: 5 November 2019
Article by Rhoda Jennings and Helena Murphy

Friends of the Irish Environment v The Government of Ireland

The High Court has ruled in favour of the Irish government following a challenge taken by Friends of the Irish Environment (FIE) over the former's alleged failure to tackle climate change.1 Mr Justice Michael MacGrath, delivering the judgment on 21 September 2019, refused to quash Ireland's National Mitigation Plan and remit it to the government for redrafting, as demanded. The case forms an important part of a growing body of recent litigation in which courts throughout the world have had to grapple with the science of climate change.2 It is the first of this kind in Ireland and its progress has attracted an overwhelming amount of public interest at a time when there is ever-greater evidence of the need to tackle climate change. The case itself was heard in January 2019 and an account of the proceedings can be found in a previous Insights by the same authors.3

The National Mitigation Objective

The High Court was asked to judicially review Ireland's National Mitigation Plan ('the Plan').  FIE argued that the Plan breaches the Climate Change and Low Carbon Development Act 2015 4 ('the 2015 Act') and, in failing to set Ireland on a course of necessary decarbonisation in order to prevent the worst effects of climate change, violates human rights. The Act requires the Government to approve a mitigation plan which will enable Ireland to transition to a "low carbon, climate resilient and environmentally sustainable economy" by 2050. The Act does not define these objectives in substantive terms, a point which was noted in the court's judgment. However, in considering the Plan, the Government must have regard to Ireland's climate change obligations under EU and international law.

Inadequacies of the National Mitigation Plan

In January, the court heard that Ireland has the third highest per-capita greenhouse gas (GHG) emissions in the EU and is set to miss its 2020 reduction targets by a considerable margin. In fact, its emissions are projected to increase between 1990 and 2020 by at least 7.5-10%. FIE highlighted the weaknesses of the Plan and concluded that it is not calculated to achieve emissions reductions required for the transition to a low-carbon economy by 2050. It noted that the Paris Agreement requires developed countries, including Ireland, to achieve emission reductions of 25-40% by 2020 and 80-95% by 2050 in order to avoid the worst effects of climate change.5 In the absence of robust measures in the Plan to achieve its 2020 and 2030 targets, there is virtually no prospect of transitioning to a low-carbon economy by 2050, according to FIE. Accordingly, it sought a declaration from the court that the Plan is illegal. The Government responded that FIE was asking the court to rule upon specific policy decisions and thereby usurp the executive's function and breach the separation of powers.

Human Rights Breaches

FIE submitted that fundamental human rights are threatened as a result of the Government's failure to adopt an adequate climate mitigation plan. Reports presented from Ireland's Environmental Protection Agency and elsewhere indicate potentially devastating impacts in Ireland of global warming in excess of 1.5°C including extensive coastal flooding and increased morbidity. The right to life is protected under the Constitution and the European Convention on Human Rights and FIE recalled that the state is duty-bound to take all practicable steps to protect this right 6, including mitigating climate change. FIE also invoked the unenumerated constitutional right to a reasonable environment 7, the right to bodily integrity and the right to respect for family and private life and home, as well as the "unenumerated constitutional commitment of inter-generational solidarity".

Government Acted Within Policy-Making Discretion

MacGrath J stressed that there was no dispute between the parties regarding the grave risks posed by climate change nor of the need for urgent action. He noted the unique complexity of this case which involved an "uneasy interaction" of law and science, and he stated that the separation of powers constrained him from carrying out a substantive review of the Plan. The Government had provided evidence of its decarbonisation efforts and MacGrath J was not convinced that the Plan did not contain "any or any adequate measures to achieve the national transition objective". He noted that the Act itself is couched in non-prescriptive language which leaves the Government with considerable policy-making discretion regarding its chosen mitigation measures. The Plan is but an initial step along the path towards the 2050 goal and MacGrath J concluded that it is "but one, albeit extremely important, piece of the jigsaw".

Locus Standi and Human Rights

MacGrath had no difficulty in finding that FIE had standing to challenge the Plan as being in breach of the Act. He then considered whether FIE had standing to plead that the Plan undermined human rights. He was satisfied that this was the case as FIE had a bona fide concern in seeking to protect the rights of others in matters of significant constitutional importance. However, he had difficulty in establishing a sufficient causal link between the approval of the Plan and the alleged breach of fundamental rights. The Government had presented evidence of its various mitigation efforts and MacGrath J was not convinced that the Plan ran counter to Ireland's climate change policy. 

Commentary

At a time when climate change looms ever larger in the public consciousness, this decision will no doubt be viewed with disappointment by those advocating more timely action in light of the limited global "carbon budget". MacGrath J refrained from ruling on Ireland's failure to achieve its interim GHG emission reductions, noting that the Act does not prescribe any such targets. Nonetheless, he acknowledged that delayed mitigation now would result in exponentially greater costs later.

This case is significant as it was the first occasion on which an Irish court has extensively engaged with climate science. MacGrath J underlined the urgent need to tackle climate change and he re-affirmed the existence of a right to a reasonable environment. Crucially, in recognising that FIE had the required standing to take the case, MacGrath J was swayed by the importance of the environmental issues raised. It is therefore very likely that we will see further such changes come before the Irish courts.

Footnotes

1. Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General 2017 793 JR. The approved written judgment is still awaited and FIE is currently considering next steps, including a possible appeal.

2. For example, in Urgenda the Dutch Court of Appeal upheld earlier judicial decisions ordering the Dutch government  to cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). This case was extensively discussed in MacGrath J's judgment.

https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:PHR:2019:1026.

3.  insights/landmark-legal-challenge-against-irish-government-on-climate-change-?s=0.315445164888

4. Climate Action and Low Carbon Development Act 2015, no. 46 of 2015. Available at http://www.irishstatutebook.ie/eli/2015/act/46/enacted/en/html.

5 The Paris Agreement was adopted by 12 December 2015 at the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change held in Paris from 30 November to 13 December 2015. Its aim is to hold the "increase in the global average temperature to well below 2°C above pre-industrial levels" and pursue "efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change". Available at https://unfccc.int/sites/default/files/english_paris_agreement.pdf.

6 See e.g. Re a Ward of Court (withholding medical treatment) (No. 2) 1996 2 IR 123.

7 Friends of the Irish Environment CLG v Fingal County Council & ors 2017/244 JR.

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