The Irish FIE climate case: scrutiny over government climate policy and climate related constitutional human rights

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This is part of our guest post series, this edition features:
Francesco Sindico

On Friday 31 July 2020 the Irish Supreme Court reached a unanimous verdict on the Friends of the Irish Environment (FIE) case.

The decision has been dubbed “extremely significant” by David Kenny, Assistant Professor of Law, Trinity College Dublin. From his analysis of the decision the case turned on two key claims: 1) that the National Mitigation Plan did not comply with the law (the Climate Action and Low Carbon Development Act) and 2) that the National Mitigation Plan violated rights (human rights in particular). The plaintiffs won on 1) and lost on 2).

The Supreme Court found that the Plan breached the law because it was not specific enough in explaining how Ireland will transition to a low carbon economy by 2050. The remedy in this case is to annul the Plan and ask the government to come up with a new Plan. The plaintiffs lost on 2) (ie the allegation that the National Mitigation Plan violated rights (human rights in particular)), but the Court made it clear that it would be open to consider a rights based claim, should a future case be brought by individuals. In fact, the reason why the rights argument was lost is because FIE is a corporate entity , but also because, according to the Court, the right to a healthy environment, not enumerated in the constitution, as argued by the plaintiffs is too vague to be considered a “derived” constitutional right. The Court, however, appears to be open in future cases to engage in “existing” constitutional rights that may be affected by environmental degradation, such as right to property. But, it must be said, the Irish Supreme Court has shied away, or so it seems, from opening a wide door to recognise a right to a clean environment per se.

The Climate Change Litigation Initiative (C2LI) will analyse the final decision in greater detail, but an initial overview does appear to indicate that the FIE case has similar traits to litigation in other countries covered by C2LI where Courts have indeed exercised scrutiny over national policy that poorly implemented the requirements present in legislation, such as the successful Leghari case in Pakistan, or the ultimately unsuccessful Thomson case in New Zealand. The trend here is a country passing a climate change law (positive development) requiring government to take action to meet the objectives of the law (positive development), but then the government taking too little (or too vague) action to actually meet the goals of the law (negative development). This case offers (new insights to tackle this kind of negative development. In the past, courts would have been reluctant to interfere with government policy, but the FIE case shows that the boundaries between National Mitigation “Plans” (policy) and Climate “Acts” (law) are not as clear-cut as one may think. Courts are now seemingly more confident in looking at the legality of climate plans. In contrast to the setting of the Urgenda case, the Irish Court was able to make clear that ‘what might once have been policy has become law by virtue of the enactment of the Act’. The extent to which the FIE case also represents a further case of a turn towards using (successfully) human rights arguments in litigation is more debatable. The Irish Supreme Court has not declared the existence of a self-standing right to a clean environment, but it has confirmed that “existing” constitutional rights may be negatively affected by climate change. Within the Irish context it appears that the constitutional and human rights dimension of climate litigation will only be clarified should individuals, and not corporate entities, take action against the government in the future. Until then, the FIE case represents indeed a step forward for climate litigation, but it may be too soon to declare it a giant leap forward.

Francesco Sindico, Kathryn McKenzie, Gaston Medici and Lennart Wegener, @C2LInitiative

About Dr Francesco Sindico

Dr Francesco Sindico is Co-Director of the Strathclyde Centre for Environmental Law and Governance (SCELG), one of the leading centres in the UK in the field of environmental law. He is also a Reader in International Environmental Law at the University of Strathclyde Law School, Glasgow. Francesco is a co-investigator on the One Ocean Hub and leads the Climate Change Litigation Initiative and the Law, Islands and Sustainable Development Initiative at SCELG. His main areas of work and research are International Climate Change Law, International Water Law and Sustainable Development. He collaborates closely with international organisations and non-governmental organisations in these fields and advises governments before international courts.

About C2LI

The Climate Change Litigation Initiative (C2LI) provides insights into effective climate action by civil society in over 30 countries, using a scenario-based methodology. C2LI also reviews countries where there is little or no climate litigation, to assess what needs to happen in those countries for civil society to bring effective action before the Courts. CL2I is led by Strathclyde Centre for Environmental Law and Governance (SCELG), the University of Geneva Law School and the National University of Singapore Asia Pacific Centre for Environmental Law. C2LI started in the framework of the 2018 biannual Conference of the International Academy of Comparative Law, but has now grown into a long-term initiative aimed at contributing to the discourse on climate change litigation and providing relevant tools to policy makers and wider stakeholders.

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