Planet litigation - Village Magazine

72 October/November 2023 October/November 2023 73

‘Climate Case Ireland’ was taken by FIE and

supported by more than 22,000 citizens,

ending in the Supreme Court striking down

Ireland’s ﬁrst National Mitigation Plan in 2021

limate litigation is a whole new

world that has ﬁrmly established

itself as an activist strategy with

more than 2,000 cases taken

across the planet in the last seven

years. And that ﬁgure is solely for ‘framework

challenges’ – direct assaults on governments’

failures to meet international and national

reduction targets since the Paris Agreement in

2015.

Ireland was responsible for one of the ﬁrst.

‘Climate Case Ireland’ was taken by Friends of

the Irish Environment [FIE] in October 2017.

Supported by more than 22,000 citizens, that

case ended in the Supreme Court striking down

Ireland’s ﬁrst National Mitigation Plan in July

2021.

The problem with holding Governments to

account for their failure to address our

civilisation’s destabilised climate and its ‘age

of precarity’ is that, as the High Court ﬁrst ruled

in that case, “measures of policy are for elected

representatives”.

High Court Judge Michael McGrath ﬁrmly

backed judicial restraint. The challenge was

deemed an “impermissible impingement by

the courts into areas of policy discretion”. A

“margin of appreciation” must be aorded to

the State. There must be no “unwarranted

interference by the judiciary in the work of the

executive”.

That argument was fatally holed by a

unanimous decision of the Supreme Court,

written by then Chief Justice Frank Clarke:

“What might once have been policy has

become law by virtue of the enactment of the

2015 Climate Act”, he wrote in the now oft-

quoted judgment. The National Mitigation Plan

failed to “specify the manner in which [the

government] proposed to achieve the national

transition objective”, breaching section 4(2)(a)

of the Climate Action and Low Carbon

Development Act 2015. “Whether the Plan does

what it says on the statutory tin is a matter of

law and is clearly justiciable”, he wrote in the

judgment.

A similar case taken in the Netherlands by

Urgenda — which supported FIE in the Irish

Planet litigation

A survey of Irish

climate litigation

as temperature

changes, and

government failures,

make it imperative

By Tony Lowes

challenge — resulted in a Court-mandated

planned reduction of the national herd by 30%

over seven years - and a violent political

response which is the envy of the ‘lurch-to-the-

right’ wing of the Irish farming community.

There too the Irish plea of Ireland’s

insignificance – the ‘drop in the ocean’

argument - was rebutted: “The Court concludes

that the mere circumstance that the Dutch

emissions make up a small share of the

worldwide emissions does not aect the care

to be exercised by the State vis-à-vis third

parties”.

The Irish Government’s response to Climate

Case Ireland had initially been to strategically,

if cynically, ignore the rights of ‘third parties’,

but it was now kicking legal sand in the face of

environmentalists, waiting not months but

three years before providing the EU with the

required long-term plan to 2050 while playing

ducks and drakes with the Climate Action Plan

2023, the immediate carbon budgets, sectorial

allocations, and an Annex of Actions.

And they also shifted those sands. The 2018

constitutional right to an environment

“consistent with human dignity and the well-

being of citizens at large” declared by Judge

Max Barrett of the High Court in the Airport

Runway Case was, following an appeal by the

State despite a Green component in

government, ironically struck down by the

otherwise successful Supreme Court Climate

Case Ireland in 2021.

The Supreme Court found that such a

fundamental right could not be an

“‘unenumerated Constitutional right’ or as I

The water temperature o Ireland’s south

west coast this June was measured at

17.4°C, almost 4°C higher than the

average June temperature, according to

Ireland’s Climate Change Advisory Council.

Lowes with tem climte

ENVIRONMENT

72 October/November 2023 October/November 2023 73

RedC survey on consiuionl mendmen. Source: Friends of he Irish Environmen

would prefer to put it”, Clarke wrote, “a ‘derived

right’ but must be subject to a referendum. The

advantage of express incorporation is that the

precise type of constitutional right to the

environment which is to be recognised can be

the subject of debate and democratic approval”

and not imposed by the Courts.

The Citizen Assembly on Biodiversity made

this its top recommendation, which the IFA said

had “the potential to signiﬁ cantly increase on

the already overburdened legal and planning

systems as well as infringe farmers’ property

rights”. Nor has the State an appetite for such

a referendum when it has little public support

compared to housing or health, according to a

RedC survey commissioned by FIE.

As to climate budgets for the period until

2030, a delay in allocating the emissions

attributable to land-use and a provision for

“unallocated savings” of 8% of emissions

undermine the objectives. For ‘land use’ read

‘rewetting’ (and the failure of forestry) and

you see why government has kicked the tin

down the road.

The term ‘unallocated savings’ is not

contemplated by, or mentioned in, the Climate

Act or its implementing Regulations and is not

a category in the Common Reporting Guidelines

or in the UN Reporting Guidelines. These

absences fail the ‘speciﬁ city test’ and bring

into question the ceilings for the other sectors,

since the missing savings may a ect the share

of the carbon budget other sectors can emit in

order to stay collectively within the overall

budget for 2025 and 2030.

These ‘framework’ challenges to Government

policy are supported by Ireland’s increasingly

ignored Climate Change Advisory Council,

which has valiantly crunched the numbers and

this summer expressed the signiﬁ cant fear that

“clarity may arrive too late”. Even given the

1.9% reduction in emissions in 2022, annual

emissions reductions of 12.4% will be required

from 2023-2025 if we are to stay within this

‘legally binding’ carbon budget. Nor is it

possible to create realistic ﬁ ve-year budgets

when the overall budget until 2050 remains

unknown. The credibility of the Green Party, if

not the Government itself, will at least be

tested in open court.

FIE is also challenging omissions in the

sectoral allowances, and inadequacies in the

2023 Annex of Actions.

Climate litigation can also be targeted at

speciﬁ c projects (and hopefully individual

companies), but these are ﬁ ercely resisted.

FIE has successfully delayed, if not stopped,

projects like the proposed Shannon LNG

terminal or the Galway Ring Road. An Taisce

succeeded in linking unsustainable peat

extraction to planning permission for a Bord

na Mona peat powered electric plant but it

failed more recently in a brave attempt to stop

a joint venture agreement with Glanbia’s

Dutch partner Royal-A-Ware from using Ireland

as a ‘milk haven’. The Supreme Court rejected

any (legally) “signiﬁ cant indirect e ects” of

the expansion of milk production to supply the

plant with 450 million litres of milk a year.

And litigation is expensive. FIE’s pioneering

case for legal aid for its challenge to the

National Development Plan was rejected by

the High Court and the Court of Appeal as,

being an NGO, it was not a “person”; to add

salt to the wound, the case seeking the costs

of the appeal on the grounds of (legal) “public

importance” was also unsuccessful.

Climate litigation in Ireland depends on the

goodwill of the legal profession and the

willingness of a few lawyers to act ‘pro bono’

- receiving what in fact is generally only a

portion of their fees, even if the case is won.

The collective costs to all the litigants and

the defendants and the Notice Parties in the

challenge to the extension of Dublin Airport in

2018 was estimated by one barrister to be

€100,000 per day in appearance costs and

€100,000 for each day in research. The case

ran for 10 days.

To bring FIE’s case against overﬁ shing

through the national courts to the European

Court of Justice – where it awaits judgment as

this is written – cost €220,000 in legal fees.

And still FIE must meet ‘out of pocket’

expenses as solicitors and barristers cannot

be asked to reach into their pockets for outlays

like Court fees. FIE spent more than €7,000

upfront in photocopying for the Supreme

Court Climate Case hearing alone!

The Government’s proposed legislative

changes, in the current Planning Bill, restrict

access to the Courts and limit cost recovery

even when a case is won. It may well be that

all our futures rely on the e ectiveness of

judicial systems worldwide. The jury is still

out.

Tony Lowes is one of the Directors of Friends of

the Irish Environment.

You can follow FIE’s litigation at https://www.

friendsoftheirishenvironment.org/court-

cases/court-cases-information