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Irish Supreme Court ruling on FIE vs. Ireland – increasing pressure for European governments to bolster climate ambitions

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07 August 2020

On 31 July 31 2020, the Irish Supreme Court quashed the national plan for tackling climate change adopted by the Irish Government in 2017. In the wake of the December 2019 Urgenda landmark ruling in the Netherlands, this is only the second time a European Government has been ordered by national Courts to do more to reduce national greenhouse gas emissions. While grounded in Irish law, this ruling raises key questions for similar on-going proceedings in Europe and beyond.

Background - A reversal of fortune for Friends of the Irish Environment

An Irish advocacy group, Friends of the Irish Environment (FIE) filed a claim in 2017 against that the “National Mitigation Plan” adopted in July 2017 (the “Plan”) by the Irish Government. That Plan, as in many countries, aims at achieving the objective of “transitioning to a low carbon climate resilient and environmental sustainable economy by the end of 2050”, including by achieving reductions of at least 80% in greenhouse gas (GHG) emissions by 2050.

A key criticism made by FIE was that the Plan envisaged an increase, rather than a decrease, in emissions over the initial period of the Plan. According to FIE, that Plan violated not only a national 2015 law (Climate Action and Low Carbon Development Act 2015, the “Act”) but also the Irish Constitution as well as several obligations under Articles 2 and 8 of the European Convention on Human Rights (ECHR) protecting the right to life and the right to private and family life. FIE asked that the decision to approve Plan be quashed and that the Government be ordered to draft a new, more stringent, plan.

In September 2019, the High Court dismissed FIE’s claim on the ground that the 2015 Act does not require the Plan to achieve specific intermediate targets, as this Plan was just an initial step for achieving the overall objective. It also ruled that FIE – although a corporate entity – had standing to bring claims based on personal rights (Constitutional and ECHR). However, the High Court dismissed these arguments on the ground that potential violations could not result from the Plan itself, as it is only a "piece of the jigsaw" and “it cannot be concluded that it is the plan which places these rights at risk”.

 

A Supreme Court’s decision firmly grounded in Irish law

The July 31 ruling reaches opposite conclusions compared to the earlier High Court dismissal.

First, the Court found that the Plan was ultra vires (i.e. it exceeded the Government’s powers) because it falls short of the degree of “specificity” requirement set by that the 2015 Act (see 6.33, p. 42), in the sense that the Plan should allow a reasonable and interested member of the public to know how the government intends to meet the transition objective. By contrast, the ruling found several policies as “being excessively vague or aspirational” and was not sufficiently specific as to policy over the whole period to 2050, not just for the first five years.

Second, the Court found that FIE lacks standing for bringing claims under the Constitution or ECHR, because Irish standing rules require claimants to enjoy the rights they rely on. This was not the case for personal rights invoked by FIE, such as the right to life or the right to bodily integrity. Although Irish case-law allows corporate entities to raise personal rights in exceptional circumstances, the ruling found this was not justified in the present case.

In the short term, the ruling means that the new coalition government formed in June 2020 will need to adopt a new plan implementing the 2015 Act, noting that at the end of June it had already announced its willingness to set annual emissions goals in order to reach so-called “carbon neutrality” by 2050. The press reported that the Irish government welcomed the ruling and said it would "carefully examine the decision".

 

Beyond Irish borders: The potential impact of the decision for climate litigation against States

Several similar claims are on-going in Europe, in particular in France, Belgium and Germany, and it is likely these will become a common feature of the evolving climate policy landscape in Europe. While claims may differ, the common rationale is the alleged “climate inaction” i.e. the fact that Governments are not taking sufficiently stringent measures to reach the goals set by the 2015 Paris Agreement. The FIE vs. Ireland case, despite being firmly grounded in Irish law, will be analysed in details by climate activists and the legal community alike.

We outline below three areas of particular interest.

  1. First, there is an obvious parallel to be made with the December 2019 Urgenda ruling since, in effect, this Irish Supreme Court’s ruling will likely result in more stringent national ambitions. However, it would be too simple to view this decision as similar to the Urgenda case as, in fact, there are significant differences. The most obvious difference is the Court’s refusal to hear arguments based on the ECHR (right to life and the right to private and family life). These were at the heart of the Urgenda ruling which highlighted potentially strong interactions between human rights and States’ duties for tackling climate change, on top of environment-related international treaties such as the Paris Agreement. The Irish Supreme Court’s ruling nevertheless did not close the door to such human rights-based arguments: The 73-page ruling actually ends by hinting this is likely to be a crucial question in future environmental litigation. Another key difference is that the very motive for quashing the Plan (i.e. for not being specific enough) means the Court did not decide what the level of GHG reductions should be at specific intermediate milestones on the road to 2050: In the Netherlands, by contrast, the Supreme Court upheld that – as requested by claimants – that GHG emissions be reduced by 25% below 1990 levels by 2020, with a detailed analysis of emission sources and the effort required to achieve those reductions (although leaving to the Government the responsibility to identify the actual measures, on the ground of the separation of powers).
  2. Second, similar to the Dutch Supreme Court, the Irish Supreme Court takes a position regarding the debate on the “justiciability” of climate change policy. This is an important point since Governments tend to argue, as both Dutch and Irish Government did, that having regard to the separation of powers these issues should be considered matters of policy which are within the exclusive remit of the legislative and executive branches, and not within the scope of questions which can properly be the subject of litigation. The Supreme Court found that, by enacting the 2015 Law, the Irish Oireachtas (legislature) established a set of legal obligations: “What might once have been policy has become law” (conclusions, p. 71). However, the Court also acknowledges that – again in a manner similar to that of the Dutch Supreme Court – choices as to how the objective shall be reached “may well be policy choices and real questions might arise at to the extent to which those choices might be justiciable.” (see 6.17, p. 40). Still, European Courts so far seem more open to climate lawsuits against Governments than their US counterparts, as shown by the recent dismissal of the U.S. Court of Appeals for the 9th Circuit of the so-called Juliana case on the ground, notably, that the claims for increased Government action must be made before the “political” (executive and legislative) branches, rather than the judiciary.
  3. Finally, the ruling contains interesting considerations regarding the “right to a healthy environment” (which, although many definitions exist, relies on the idea that the enjoyment of many fundamental rights is dependent on the existence of a healthy environment). FIE viewed such right as resulting from the Irish Constitution and more precisely from the rights to life and to bodily integrity. The Court responded by stating that such right does not currently exist under the Irish Constitution and is either an unnecessary addition or excessively vague and ill-defined. In that respect, Ireland stands in contrast with the more than 100 countries which have recognised this right at the Constitutional level, according to a 2019 UN global report on environmental law. This right is also gaining traction in ECHR case-law, as the European Court itself acknowledges, and NGOs have recently called the UN to include it in the Universal Declaration of Human Rights.

Allen & Overy’s International Environment, Climate and Regulatory Law Group has deep experience advising on climate change regulatory matters. Please reach out to any member of the Group or your usual contact at A&O if you would like any further information or have an issue that you would like to discuss.