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
C
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 Governments 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 rightor 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