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RollingNews.ie

Opinion The Supreme Court's ruling on the government's climate plan is a watershed moment

David Kenny, Assistant Professor of Law at Trinity College, says the Supreme Court’s ruling has major implications for environmental policy and the court.

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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    Mute Uncle Bobby
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    Aug 1st 2020, 12:11 AM

    We pay enough tax as it is without bringing in new “climate” taxes.

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    Mute Thomas Meaney
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    Aug 1st 2020, 12:50 AM

    @Uncle Bobby: Bob my friend you pay little tax. Until you pay scandanavian tax you don’t pay much. Then again you get very little “bang for buck” for what you do pay. Look at how the Swedish Danes and Norwegians pay large taxes and look at what they get in return then you’ll understand my point of view.

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    Mute Greg Daniel
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    Aug 1st 2020, 2:29 AM

    @Thomas Meaney: Middle income earners in Ireland pay some of the highest tax rates in the OECD and more than their equivalents in Sweden. Look it up.

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    Mute Thomas Sheridan
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    Aug 1st 2020, 5:57 AM

    How about the rights for average income earners to afford to be able to keep warm in their own homes

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    Mute Brendan Cooney
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    Aug 1st 2020, 6:51 AM

    @Thomas Sheridan: then insulate your existing house or if a new build then build to passive house or NZeb standard and reduce your heating energy needs to zero.

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    Mute Thomas Sheridan
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    Aug 1st 2020, 7:27 AM

    @Brendan Cooney: typical eletist arrogance and disregard for average workers. Do you know anyone who would chose to burn coal instead of living in a passive home. Most people cannot afford the enormous cost of building or buying a passive home

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    Mute Michael Patrick Newell
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    Aug 1st 2020, 9:40 AM

    @Brendan Cooney: and you think these magic grants that are suppose to help with this will remotely cover the costs……what planet are you living on

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    Mute NotMyIreland
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    Aug 1st 2020, 11:25 AM

    @Michael Patrick Newell: Sure you literally throw money on the fire burning coal.

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    Mute Daniel Kelly
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    Aug 1st 2020, 12:40 AM

    Imagine a government plan being “excessively vague or aspirational”. Well I never!

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    Mute Jamie Murphy
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    Aug 1st 2020, 2:03 AM

    Remove vat and vrt on all EV’s. Watch the sales increase

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    Mute Garreth mc mahon
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    Aug 1st 2020, 6:10 AM

    @Jamie Murphy: the problem with ev’s not including the range issues is that at the moment we don’t generate enough power from our grid as it is for the national requirements and all the vehicles will add extra load to a grid that is poor in term of clean energy. Fix the grid before pushing for ev’s. Also does someone have a link to how much environmental damage is done mining for the lithium needed for the cells

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    Mute Brendan Cooney
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    Aug 1st 2020, 6:50 AM

    @Garreth mc mahon: prob a lot less than the mining and use of oil, gas, coal, peat. And it is also recycled Into new batteries.

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    Mute Muiris (don't touch your face)
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    Aug 1st 2020, 7:16 AM

    @Brendan Cooney: weren’t the Swedes experimenting with putting a contactless recharging strip down main roads (I know, I know digging up the roads all over again), that would reduce ‘range anxiety’ & battery size both?

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    Mute Joe
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    Aug 1st 2020, 8:03 AM

    @Muiris (don’t touch your face): yeah and sure don’t worry about the costs either. We have a money tree of course!

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    Mute Dan
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    Aug 1st 2020, 1:21 AM

    We pay for report
    We pay for the lawyers
    Both sides
    We pay for new report
    Rinse and repeat—– we pay our taxes and they spend it…. boy do they spend it…what a fecking joke

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    Mute Tom Mullally
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    Aug 1st 2020, 6:40 AM

    I think the court is wrong to be specific in this. Science and technology is changing the way we tackle climate change so anything the government specifies will be out of date before it becomes law.

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    Mute Greg
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    Aug 1st 2020, 7:33 AM

    What a waste of time and tax payers money ,

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    Mute Thomas McGrath
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    Aug 1st 2020, 7:21 AM

    So why do we need a government when a few wigs unelected by anyone can decide what way the economy and country must be run. First remove the obscene tax free alowences and massive salaries of these fat cats and let them try and live on the average wage of ordinary working people.

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    Mute MentalAsAnything
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    Aug 1st 2020, 9:01 AM

    My head hurts after reading that article

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    Mute Donal Desmond
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    Aug 1st 2020, 3:18 AM

    Eamon Ryan now has a poker hand … A nightmare for FFG.

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    Mute Thomas McGrath
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    Aug 1st 2020, 12:04 PM

    If we lived in a real democracy, carbon taxes would be optional and people like you could donate 90% of your earnings to dubious cults and die in poverty. Dont push this lie on people who make the effort to distinguish between facts and propaganda. Pollution yes, climate warming definately no.

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    Mute Brian Ó Dálaigh
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    Aug 1st 2020, 2:17 PM

    @Thomas McGrath: extend that logically, and everyone should be able to decide if they want to pay any tax or not and to what causes they would pay if they did. The entire education system, health system, roads, railways, airports, policing, judiciary, etc. would all collapse into non-existence. Democracy is the name given to a system of governance. It is not the name given to deciding what taxes, if any, that you pay. Open a dictionary, and while you’re at it, look up the spelling of the word “definitely”. It’s hard to take any sort of advice from someone who cannot spell simple words.

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    Mute DCforChange
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    Aug 1st 2020, 11:12 AM

    What if we just tax the oil & gas companies operating in Ireland to pay for any new green initiatives. That way people can’t use the I’m poor card. Green is the way forward. The planet is being destroyed. Time to give it a break. All 7 +billion of us.

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    Mute Peter Cuthbert
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    Aug 1st 2020, 9:31 PM

    Whats a win for some can be a loss for others.More stringent climate change requirements will impose costs on everyone .Just thinking peat extraction has stopped ,so will peat based fuels become a scarse and costly items. Don’t get me wrong ,agree things have to change but would like honesty on the true costs which society and the individual will incur

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