Case name:    Friends of the Irish Environment CLG v. The Government of Ireland, Ireland and the Attorney General

Jurisdiction:        Ireland

Type of claim:        Challenge of federal government’s insufficient climate policy

Summary of result:    Court orders the National Mitigation Plan to be quashed for failure to comply with the Climate Action and Low Carbon Development Act, 2015. The Court finds that the applicant does not have standing to challenge violations of constitutional rights or rights under the European Convention on Human Rights.

Judgment final:        Yes

Court instances

Source of claims

Violation of higher ranking national law (Climate Action and Low Carbon Development Act, 2015).

Fundamental Rights: Violation of constitutional rights and rights under the European Convention on Human Rights (ECHR) to life, liberty and security, integrity of the person, respect for family and private life and home, property, the rights of the child, the rights of the elderly, equality between men and women, environmental protection and/or the unenumerated constitutional right to a reasonable environment, as well as the unenumerated constitutional commitment to intergenerational solidarity and/or unenumerated constitutional obligation to vigilantly and effectively protect the environment.

Summary of Judgment

Facts and claims of the parties

The applicant Friends of the Irish Environment CLG is an environmental non-governmental organization.

The applicant challenges the Irish federal government’s National Mitigation Plan (“the Plan”) published on 19 July 2017 and approved by the government under the Climate Action and Low Carbon Development Act, 2015 (“the 2015 Act”). S. 3 of the 2015 Act provides for the so called National Transition Objective, which is the transition to a low carbon, climate resilient and environmentally sustainable economy by the end of the year 2050. For this purpose, the Minister shall make a National Mitigation Plan and submit it to the government for approval. S. 4 of the 2015 Act imposes an obligation on the Minister to make and submit such a plan to the government not less than once every five-year period. The Plan shall, inter alia, specify the manner in which it is supposed to achieve the National Transition Objective, and specify the policy measures that would be required in order to manage greenhouse gas emissions at a level that is appropriate for furthering the achievement of the National Transition Objective, as well as take into account any existing obligations of the State under European Union law or any international agreement.

The 2017 Plan includes over 100 individual actions for various ministers and public bodies to take forward. It is described as a living document which does not provide a complete roadmap to achieve the 2050 National Transition Objective, but begins the process of development of medium to long-term mitigation choices for the next and future decades.

The applicant challenges that the Plan is ultra vires the powers of the Minister under the 2015 Act because it does not specify any adequate measures to achieve a reduction of greenhouse gas emissions in order to attain emission levels appropriate for furthering the National Transition Objective. The Plan envisages an increase, rather than a decrease, in emissions over the initial period. The applicant further maintains that the Plan fails to comply with the obligations under s. 3(2)(a)-(d) of the 2015 Act, which require the government to have regard to, inter alia, the objectives specified in Art. 2 of the United Nations Framework Convention on Climate Change, the policy of the government on climate change, climate justice, and any existing obligation of the State under European Union law.

The applicant further challenges that the Plan fails to adopt any or any adequate means to reduce greenhouse gas emissions as required to contribute to meeting the objectives of the UNFCCC, the Kyoto Protocol and the Paris Agreement. It thereby violates constitutional rights to life, liberty and security, integrity of the person, respect for family and private life and home, property, the rights of the child, the rights of the elderly, equality between men and women, environmental protection and/or the unenumerated constitutional right to a reasonable environment, as well as the unenumerated constitutional commitment to intergenerational solidarity and/or unenumerated constitutional obligation to vigilantly and effectively protect the environment. The Plan is also in violation of the State’s obligations under the European Convention on Human Rights (ECHR).

Finally, the applicant seeks a declaration that it was unreasonable for the respondent to approve the Plan and that the Plan fails a test of reasonableness.

The 2015 Act also establishes the Climate Change Advisory Council, which in its first report published in 2016, as well as in correspondence and its periodic review in 2017, criticizes the content of the Plan. The Council observes that Ireland is unlikely to meet its 2020 targets for reducing greenhouse gas emissions by a substantial margin, which will also have implications for compliance with 2030 targets. The Council considers it urgent that additional and enhanced measures be identified to address the emissions gap. (See High Court Judgment of 19 Sept 2019 at para 14).

One of the main contested issues of the case is whether the applicant as a non-governmental organization has standing to maintain this challenge, particularly to challenge a violation of human rights under the Irish Constitution and the ECHR.

Besides, the respondent claims that the Plan constitutes a pure statement of government policy and does not grant rights or impose obligations on third parties, therefore not being subject to judicial review. Even if it were reviewable, a very wide measure of discretion and considerable deference must be shown to the decision maker. The Plan is required to specify each of its objectives in a variety of subject matters including national economy, society, environment, climate, science, technology and legal context, all of which are complex, difficult to quantify and are constantly evolving and interacting with each other in unpredictable ways.

High Court Judgment

The High Court first considers whether the Plan is inconsistent with the requirements of the 2015 Act and thereby ultra vires. The first question in this regard is whether the Plan as a policy statement is reviewable by the judiciary at all. Central to the argument of justiciability is the doctrine of separation of powers. No one of the three organs of government is paramount in the exercise of State power, but each must respect the powers and functions of the other. (High Court Judgment at para. 88).

The Court here differentiates between adopting a policy or program, which is a core function of the Executive, and determining whether such policy or program is compatible with the law or the Constitution (High Court Judgment at para. 89). Courts have the right and duty to interfere with the activities of the Executive in order to protect or secure the constitutional rights of individual litigants. If it is established that the Executive has acted in a manner which is in contravention of the Constitution, then the exclusive role afforded it in the exercise of Executive state power will not prevent the court from intervening with a view to securing compliance with the Constitution. (High Court Judgment at para. 88).

The Court then holds that even if the Plan were deemed justiciable, a considerable margin of discretion is conferred on the government as to how it should achieve the National Transition Objective (High Court Judgment at para. 97). The Plan was established by the whole of government with input from a number of different sectors. It is the function of the government to take into account and balance relevant factors, particularly those which have cost implications for the State and thus for each citizen. (High Court Judgment at para. 98). The 2015 Act is concerned with matters which have a significant policy content and confers upon the government considerable latitude as to how best to achieve the objects of the Act (High Court Judgment at para. 111). The Court can therefore not conclude that the government has been in breach of the provisions of the 2015 Act (High Court Judgment at para. 112).

The Court next considers whether the applicant may claim a breach of the constitutional rights or rights under the ECHR. As a corporate entity, the applicant cannot rely on those rights. While in exceptional cases, associations may be granted locus standi to bring a case if there are significant obstacles for affected individual rights holders to do so, there are no reasons in the present case why affected individuals could not have brought the claim themselves (High Court Judgment at para. 122). Nevertheless, the High Court accepts the applicant’s locus standi due to the importance of the issue which affects the applicant’s members and the public at large, and the significant issues in relation to environmental concerns the case raises (High Court Judgment at para. 131).

However, the Court does not find that the making or approval of the Plan has the effect of breaching fundamental rights. Accepting for the purpose of argument that an unenumerated right to an environment consistent with human dignity exists, it would not be the Plan which breaches this right. The Plan is in accordance with the 2015 Act and with national policy on climate change and constitutes just one piece of the jigsaw, and neither the 2015 Act nor other national policy is challenged in these proceedings. (High Court Judgment at para. 132).

The Court therefore dismisses the appeal.

Irish Supreme Court Judgment

By decision of 13 February 2020, the Irish Supreme Court permitted a so called leapfrog appeal, allowing the applicants to skip the second instance Court of Appeal and proceed directly to the Supreme Court.

In its 31 July 2020 opinion, the Supreme Court overturns the decision by the High Court regarding the Plan’s compliance with the provisions of the 2015 Act. While it is true, the Court holds, that the 2015 Act requires there to be a new plan at least every five years, this does not mean that there should be a series of independent five year plans. Rather, the legislation contemplates a series of rolling plans each of which must be designed to specify how the National Transition Objective is to be achieved. (Supreme Court Judgment at para. 6.20). The Court also points out that key objectives of the 2015 Act are to achieve public participation and transparency (Supreme Court Judgment at para. 6.22). The level of specificity required of a compliant plan is that it allows an interested member of the public to know how the government intends to meet the National Transition Objective (Supreme Court Judgment at para. 6.38).

With regard to justiciability, the Court holds that the question whether the Plan complies with the requirements of the 2015 Act is one of law and not of policy. While it is possible that legislation leaves certain decisions to the policy choice of the government of the day, the question at issue here is not one of them. (Supreme Court Judgment at para. 6.27).

Considering the transparency objective of the 2015 Act, the Court finds significant parts of the policies contained in the Plan to be excessively vague and aspirational. To support its opinion, the Court cites various excerpts from the Plan mentioning, for example, that “we are endeavouring to improve our understanding” or “further investigation will be necessary”. (Supreme Court Judgment at para. 6.43). While the Court accepts that knowledge will evolve and details of the Plan will become more fixed as time moves on, that does not prevent there being a clear present statutory obligation on the government to at least give some realistic level of detail about how it intends to meet the National Transition Objective (Supreme Court Judgment at para. 6.45).

The Court also accords significant weight to the views of the Advisory Council, which in its 2018 annual report stated that Ireland was completely off course in terms of its commitments to addressing the challenge of climate change (Supreme Court Judgment at paras. 6.41 f.).

On this basis, the Court holds that the Plan fails to comply with the requirements of the 2015 Act, in particular its s. 4 (Supreme Court Judgment at para. 6.48).

The Court then turns to the question whether constitutional rights or rights under the ECHR are violated. While the outcome of this assessment is no longer relevant for the current case, the Court finds it appropriate to consider these questions as at least the matter of locus standi will become relevant in any future rights based claim brought by any corporate NGO in the environmental field in respect of any future Plan (Supreme Court Judgment at para. 6.49).

The fundamental rights relied on by the applicant, especially the right to life and bodily integrity, cannot be enjoyed by the applicant as a corporate entity (Supreme Court Judgment at para. 7.2). Irish constitutional law does not recognize a so-called actio popularis where an action is brought on behalf of the public as a whole (Supreme Court Judgment at para. 7.4). In exceptional cases, entities may be granted standing to bring such claims if justice so requires, for example if those persons particularly affected by a statute are not in a position to adequately assert their constitutional rights. Examples are the rights of the unborn in abortion legislation, or the rights of prisoners. (Supreme Court Judgment at paras. 7.8-7.17). The Court does not, however, see such an exception applicable here, as it was not explained why individual plaintiffs would not be able to bring similar proceedings (Supreme Court Judgment at para. 7.18). The Court stresses that rules of standing have the purpose of distinguishing between rights based litigation and political or policy issues. This distinction is threatened to become blurred by an over-liberal relaxation of standing rules in cases such as the present. (Supreme Court Judgment at para. 7.12).

The Court finally addresses the question whether a derived constitutional right to a healthy environment exists under Irish law (Supreme Court Judgment at paras. 8.1-8.14). While it is possible that such a right may be derived from those rights explicitly guarded by the Constitution, the Court councils against judges simply inventing new rights because they consider them a “good thing” (Supreme Court Judgment at para. 8.9). In the present case, it is not shown how a right to a healthy environment, if it was accepted, would add anything beyond the enumerated rights to life and to bodily integrity already recognized. That very fact seems to demonstrate the difficulty of asserting what a right to healthy environment should exactly mean and how it would fit into the constitutional order. (Supreme Court Judgment at para. 8.10). In the present case, the Court therefore holds, no cogent case has been made out for the identification of a derived right to a healthy environment (Supreme Court Judgment at para. 8.14).

The Court emphasizes, however, that there may well be cases, which are environmental in nature, where constitutional rights and obligations may be engaged. Indeed, the present case provides a good example. Had the case been brought by persons who undoubtedly had standing, 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. (Supreme Court Judgment at para. 8.14).