THE FRIENDS OF the Irish Environment (FIE) case, decided unanimously by a seven-judge Supreme Court on Friday morning, is extremely significant, and will have real and practical effects on the State’s climate action plan.
It opens the way for people whose rights might be affected by environmental issues to vindicate these rights in court. And it signals, perhaps, the willingness of the Irish Supreme Court to engage with constitutional rights in new and interesting ways, which could have major long-term implications.
The FIE case, at its core, is a challenge to the National Mitigation Plan, the government’s strategy to tackle climate change, which FIE said was inadequate.
In general, the courts do not have a role reviewing the adequacy of government policy. They may, however, review the legality of government action, and may consider if there are breaches of constitutional or human rights in the policies adopted.
FIE made arguments on both these grounds: that the government plan did not comply with the law, and that it violated rights.
In short, FIE won on the legality point: the Court held that the Plan made by the government did not comply with the law and will have to be rewritten.
FIE did not win on their claim that the plan violated rights, but the manner in which the Court decided this point leaves the door open for future litigants making such arguments in environmental cases.
The legality argument was that the National Mitigation Plan did not meet the requirements set out in legislation, namely section 4 of Climate Action and Low Carbon Development Act 2015. This Act requires that a plan of this sort be made to set out how the State will transition to a low carbon and environmentally sustainable economy by 2050.
Section 4 required that the Plan specify how this objective would be realised over the course of this long period, though it would be subject to revision every five years.
The Court found that the purpose of this provision was to ensure that the plan is transparent and public, so that a “reasonable and interested member of the public” can form views as to whether the plan is “effective and appropriate”.
Generally, it is the job of the government to make policy as it sees fit, and the courts do not have a general power to substitute their view on the correct policy choices.
However, since this policy had to be made in accordance with the law—section 4 of the 2015 Act— the Court said “policy became law”. That is, the Court could review whether the Plan was sufficiently specific as to comply with section 4.
In then reviewing the plan, the Court found it was not specific enough. Large parts of the plan were found to be “excessively vague or aspirational”.
As a result, the Plan was ultra vires—that is, outside the powers—of the government, because it was not in conformity with the requirements of the 2015 Act. The Plan will have to be redrawn with more specificity.
This is a procedural, not a substantive objection: the Court did not say what the plan had to contain, just that it had to contain something sufficiently specific to meet the 2015 Act’s requirements.
FIE had made arguments that the substance of the Plan was also inadequate, and would not be sufficient to combat climate change. In doing this, they argued that citizens enjoyed a right to a healthy environment, and this right was not being respected by the government’s plan.
FIE did not win this argument, for several reasons. FIE is a corporate entity, not a human person, and as such could not claim to enjoy rights to life or bodily integrity that might be infringed by environmental damage.
As such, they could not raise these arguments. Secondly, the Court declined to recognise a specific right to a healthy environment, as this was too vague to be a constitutional right. It would be too hard to specify what the right might contain or require.
However, though FIE lost this point, the judgment leaves the door wide open for other litigants—people whose lives and bodies are affected by environmental issues—to bring rights claims concerning environmental policy.
The Court noted that most constitutional protection of environmental rights in other countries was done by constitutional amendment to insert such rights. But the Supreme Court said that there “may well be cases, which are environmental in nature, where constitutional rights and obligations may be engaged”. Had there been a plaintiff entitled to make such arguments in this case, these might have been relevant here.
This seems to show a willingness of the court to engage with rights and/or constitutional duties in future environmental litigation. This passage is particularly significant:
“I 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 [relating to 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 in particular circumstances.”
What such rights or state obligations would look like exactly, and what effect that this would have on environmental policy, would have to be worked out in an appropriate case.
This is a landmark judgment. It is very significant for environmental policy, as it will require a rewriting of the National Mitigation Plan.
It leaves the way open for the courts to review environmental policy on the basis of human rights. But is also may signpost something of a shift on the Irish Supreme Court.
From the early 1990s, for about 25 years, the Irish Supreme Court was very reluctant to recognise new personal rights arising from the Constitution, and extremely unwilling to review state policy, even to protect constitutional rights.
The Court felt that to do otherwise would exceed its role, and step on the toes of the legislature and government. As a result, for about 25 years, the Supreme Court had a quiet and somewhat conservative period, where it often declined to intervene in rights matters.
There have been recent signs that this is changing. I wrote in 2017 that the Supreme Court was at a crossroads: it had begun, cautiously, to recognise some new rights.
The Court was also somewhat more willing to suggest, in a non-directive way, that a change of policy was required by the government. This indicated the Court might engage with constitutional rights more robustly than it had in previous decades.
My initial impression of the FIE judgment is that it may be a watershed moment: the Court has chosen its path.
The Court in this judgment said it is willing to recognise novel rights, drawn from constitutional values such as dignity, but only when those rights can be said to clearly derive from the Constitution. This is a cautious doctrine, but it opens the way for potential new rights claims.
Moreover, the Court stated that it “can and must act to vindicate such rights and uphold the Constitution.
“That will be so even if an assessment of whether the rights have been breached or constitutional obligations not met may involve complex matters which can also involve policy.”
The Supreme Court seems to be open to intervening more actively to protect rights, even when that involves reviewing complex government policy, where this is essential to uphold core constitutional rights, values and state obligations.
This might have major consequences for many areas of law and governance. The FIE case may have significance even beyond its major implications for environmental policy.
David Kenny is an assistant professor at Law, Trinity College. He is a regular contributor to TheJournal.ie.
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