By Dena Adler

Photo Credit: Malcolm MacLeod via Wikimedia Commons

On November 21, 2017, the High Court of Ireland blocked a climate change case concerning construction of a new airport runway from moving forward, but made a groundbreaking decision in recognizing “a personal constitutional right to an environment” for the first time. In Friends of the Irish Environment CLG v. Fingal County Council, the High Court declined to grant any of the relief sought by plaintiffs after reaching several preliminary conclusions, including failure to assert a viable claim for standing. However, the High Court still issued a comprehensive review of the merits in anticipation of a future appeal. While the impact of the court’s review is limited by its preliminary findings, the court’s analysis presents important insights into how the High Court interprets the Climate Action and Low Carbon Development Act 2015 and understands the newly identified right to an environment.

Further, this newly recognized right may potentially strengthen another climate change case filed by the Friends of the Irish Environment (FIE) in October 2017. Inspired by the Dutch climate lawsuit led by Urgenda and the young people challenging the U.S. federal government for failure to address climate change, FIE filed a landmark climate change case against the Irish government.   FIE alleged that the country’s National Mitigation Plan fails to fulfill promises Ireland made under the Paris Climate Change Agreement to reduce its greenhouse gas emissions and violates the Climate Action and Low Carbon Development Act 2015, the Irish Constitution, and human rights obligations. The Irish Government will appear in the High Court on December 12 to respond to FIE’s challenge.

The case against the Fingal County Council arose when FIE challenged the Council’s decision to extend the Dublin Airport Authority’s permission to construct a new runway. Among other claims, FIE argued that the extension violated the Climate Action and Low Carbon Development Act 2015. Under Section 15, the Act creates an obligation that “A relevant body shall, in the performance of its functions, have regard to . . . the furtherance of the national transition objective, and the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.”

The High Court assessed that the Fingal Council had complied with the requirements of Section 15, and did not need to further justify its decision. The Court said that Section 15 merely requires that relevant bodies “have regard” to the objectives of the Climate Action and Low Carbon Development Act 2015.

The Court further determined that Section 15 of the Climate Action and Low Carbon Development Act 2015 does not alter the substance of Section 42 of the Planning and Development Act. The High Court found that under Section 42 of the Planning and Development Act, the Fingal Council was obligated to grant an extension for the project upon finding that it met the requisite conditions and lacked discretion to consider additional factors. Though FIE argued that new information on climate change should have been considered before granting the extension, the High Court said that extending the duration of a construction permission did not constitute the type of project extension, such as an extension of the scope of the work, that requires consideration of new inputs under either the Planning and Development Act or the EIA Directive.

Further, the High Court found that Friends of the Irish Environment failed several procedural requirements. The High Court found that the plaintiffs did not meet standing requirements under Section 42 of the Planning and Development Act 2000, Article 11 of the Consolidated EIA Directive, or the Aarhus Convention. Additionally, claims concerning the original decision to grant a planning permission in 2007 were deemed impermissible collateral attacks.

Despite declining to grant plaintiffs relief in this case, the High Court presented a potential new avenue for future environmental litigation—including, perhaps, climate change litigation—by recognizing that environmental degradation interfered with a constitutional right to an environment. The High Court declared that, “A right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfilment of all human rights. It is an indispensable existential right that is enjoyed universally, yet which is vested personally as a right that presents and can be seen always to have presented, and to enjoy protection, under Art. 40.3.1° of the Constitution.” The Court elaborated that this right was not so “Utopian” as to prevent enforcement, but would rather become enforceable once made concrete through the definition and demarcation of specific duties and obligations. The High Court explained that recognizing this previously unenumerated constitutional right was a first step in this process to define and demarcate a right to an environment.

In the case at hand, the High Court clarified that the Fingal County Council did not violate this newly recognized right to an environment by extending the planning permission for the runway. The Court explained:

“. . . even though the court accepts that members of the [Friends of Irish Environment] enjoy the contended-for constitutional right, and that the [Friends of the Irish Environment] itself has standing as a body corporate, and has a sufficient basis to contend for recognition of that existing but unenumerated constitutional right, the [Friends of the Irish Environment] nevertheless did not have a right to participate in the extension decision under [Section 42 of the Planning and Development Act 2000] (there is no such right of participation) and it has failed to establish that there is, by reference to that section and on the facts presenting, any disproportionate interference with the personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large. In truth, the court sees in [Section 42] nothing more than a proper and proportionate legislative interference with the said, ever-present and now expressly recognised personal constitutional right.”

FIE and its legal team are currently considering an appeal on the points of law related to the dismissal. As noted above this newly recognized right to the environment may also prove supportive in other ongoing climate change litigation. We will continue to monitor this case for new developments and update the case summary in the Sabin Center’s Non-U.S. Climate Litigation Chart.

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