{"id":6543,"date":"2019-10-02T10:52:11","date_gmt":"2019-10-02T15:52:11","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=6543"},"modified":"2019-10-02T10:54:00","modified_gmt":"2019-10-02T15:54:00","slug":"the-significance-of-the-high-courts-decision-in-friends-of-the-irish-environment-v-ireland","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2019\/10\/02\/the-significance-of-the-high-courts-decision-in-friends-of-the-irish-environment-v-ireland\/","title":{"rendered":"The Significance of the High Court’s Decision in Friends of the Irish Environment v. Ireland"},"content":{"rendered":"
<\/div>

By Michael Burger and Hillary Aidun<\/em><\/p>\n

On September 19, the High Court of Ireland issued an important decision<\/a> upholding the government\u2019s national climate action plan against a legal challenge.\u00a0 Friends of the Irish Environment claims that the plan fails to set adequately ambitious short-term greenhouse gas emission reduction targets, and is inconsistent with a 2015 statute, the Irish Constitution, and the European Convention on Human Rights (ECHR).\u00a0 The court, however, concluded that the government acted within its policy making discretion under Irish law.\u00a0 The court further held that, having determined that the plan was the first of many steps towards Ireland\u2019s midcentury climate goals, it could not find that the plan violated any rights protected by the Irish Constitution or the ECHR.<\/p>\n

The decision comes at a busy moment in global climate litigation, with similar lawsuits challenging the adequacy of other governments\u2019 climate ambition pending in Canada (ENVironnement JEUnesse<\/em><\/a>), Germany (Family Farmers & Greenpeace Germany<\/em><\/a>), France (Commune de Grande-Synthe<\/em><\/a>), Norway (Greenpeace Nordic Association & Nature & Youth<\/em><\/a>), Switzerland (Union of Swiss Senior Women<\/em><\/a>), Belgium (VZW Klimaatzaak<\/em><\/a>), the European Union (Carvalho<\/em><\/a>), India (Pandey<\/em><\/a>) and Pakistan (Maria Khan<\/em><\/a>), as well as in the United States (Juliana<\/em><\/a>) and the Netherlands (Urgenda<\/em><\/a>). Greta Thunberg and fifteen other children recently filed a petition<\/a> with the United Nations Committee on the Rights of the Child claiming that five countries\u2019 failure to address climate change violates their rights under that treaty, and the Torres Strait Islanders recently filed a separate petition<\/a> with the United Nations Committee on Human Rights claiming that Australia\u2019s climate inaction violates their human rights under international law. In this context, the significance of the High Court\u2019s decision lies not only in its rationale for upholding Ireland\u2019s plan, but also in its recognition that advocacy groups may bring rights-based claims to enforce states\u2019 climate commitments, and of the science underpinning the urgent need to strengthen and meet those commitments.<\/p>\n

The Case<\/u><\/p>\n

In 2015 Ireland enacted the Climate Action and Low Carbon Development Act (\u201cthe Act\u201d).\u00a0 The Act sets Ireland\u2019s goal of transitioning to a low-carbon, climate resilient, and environmentally sustainable economy by 2050, and requires the government to issue a National Mitigation Plan to achieve that objective.\u00a0 The Act further instructs the government to take account of climate justice and of Ireland\u2019s existing commitments under Irish, European and international law.\u00a0 In 2017 the Irish government approved a National Mitigation Plan (\u201cthe Plan\u201d) pursuant to the Act.<\/p>\n

Friends of the Irish Environment (FIE) challenged the Plan, alleging that it fails to achieve short-term emissions reductions necessary to avert the risk of damage from climate change.\u00a0 FIE argued that the Plan contravenes the Act because it does not require adequate steps to achieve Ireland\u2019s 2050 national transition objective.\u00a0 FIE further contended that the Plan fails to uphold Ireland\u2019s obligations pursuant to international law and climate justice, which, in FIE\u2019s view, demand that Annex I countries reduce greenhouse gas emissions by 25-40% by 2020.\u00a0 Moreover, FIE claimed, the Plan violates the rights to life and to respect for private and family life enshrined in the ECHR, as well as rights protected by Ireland\u2019s Constitution including the rights to a reasonable environment, to intergenerational solidarity, and to vigilantly and effectively protect the environment.\u00a0 FIE asked the court to quash the Plan and, if appropriate, to order that a new plan be written; and to declare that the Plan was in violation of the ECHR and the Irish Constitution and failed a test of reasonableness.<\/p>\n

FIE\u2019s Standing to Bring Rights-Based Claims<\/u><\/p>\n

The government did not dispute that FIE had standing to challenge the Plan as inconsistent with the Act.\u00a0 However, the government contended that FIE lacked standing to enforce rights that can only be claimed by individuals, such as the right to life, and could therefore not bring claims under the ECHR and the Irish Constitution.\u00a0 The court rejected this argument.\u00a0 The court reasoned that the question of standing must be resolved by considering whether a plaintiff\u2019s interests \u2013 as opposed to its rights \u2013 will be affected by the challenged action.\u00a0 Because FIE\u2019s case concerned important issues affecting both its members and the public at large, it sufficiently established standing to brings claims against the Plan under the Constitution and the ECHR.<\/p>\n

The Court\u2019s Endorsement of Climate Science and National Responsibility<\/u><\/p>\n

Before reaching the merits of the case, the court made significant findings regarding the dangers posed by climate change and need to take swift action.\u00a0 The court explained that \u201c[t]he scientific community agrees that global warming can be prevented, mitigated or reduced by ensuring the reduction of the emission of greenhouse gases into the atmosphere but significant effort is required,\u201d and rejected the notion that a state\u2019s inability to tackle the issue on its own lessens the burden to achieve science-based targets.\u00a0 Moreover, as the Irish government laid out in the Plan\u2019s introduction, Ireland is already experiencing diverse and wide-ranging impacts and will be threatened by sea-level rise, more intense storms, water shortages, and increased risk of new pests and diseases in the future.<\/p>\n

Additionally, the court adopted the summary of the climate problem, and the acceptance of the reality of a carbon budget, contained in the landmark decision Urgenda Foundation v. State of the Netherlands<\/em><\/a>.\u00a0 The court explained that \u201cif the concentration of greenhouse gases has not exceeded 450ppm in the year 2100, there is a reasonable chance that the 2o<\/sup> C target will be achieved,\u201d but 1.5o<\/sup> C is the only \u201csafe temperature rise target,\u201d and therefore, \u201cthere is now limited room, or budget, known as a carbon budget, for greenhouse gas emissions.\u201d<\/p>\n

The court\u2019s ultimate conclusion, in other words, did not stem from any skepticism regarding the scientific consensus on the urgent need to make deep emissions cuts, the threats to Ireland posed by climate change, or Ireland\u2019s responsibility to do its part.\u00a0 In fact, the court\u2019s decision makes plain the authoritative nature of climate science, and that \u201c[t]he need for action is undoubted.\u201d<\/p>\n

Separation of Powers<\/u><\/p>\n

As discussed, FIE first claimed that the Plan violates the Act by failing to achieve sufficient short-term emissions reductions.\u00a0 The government argued that the Plan is a non-justiciable statement of policy and thus not subject to judicial review. \u00a0Warning that \u201cthe court should . . . be slow to determine that an issue is not justiciable and therefore excluded from review,\u201d the court avoided expressly reaching the question, determining that even if the Plan is reviewable it is not in contravention of the Act.\u00a0 The court reasoned that the Act provides considerable discretion to the government with respect to how to achieve the 2050 national transition objective, and that to invade the government\u2019s policy making function would violate the separate of powers.<\/p>\n

However, the court did not find that the Act gives the government carte blanche.\u00a0 Rather, in the court\u2019s assessment, the Plan is valid because it does contain a proposal to reach the national transition objective and makes adequate reference to Ireland\u2019s existing European and international obligations, as the Act requires.\u00a0 Moreover, the Plan must be reviewed every five years, and therefore is not Ireland\u2019s final response to climate change.\u00a0 The court further explained that if the Plan is insufficient, the ultimate deficiency lies with the Act, which was not challenged.\u00a0 Because the Plan could not be said to represent an inadequate response to climate change pursuant to the Act, the Court concluded, it does not violate Ireland\u2019s human rights obligations under the ECHR or the Constitution, and is not unreasonable.<\/p>\n

The court distinguished Urgenda<\/em> on a number of grounds.\u00a0 In Urgenda<\/em>, a Dutch appellate court ruled that the Netherlands had violated the rights to life and to respect for private and family life provided by the ECHR by not aiming to reduce its greenhouse gas emissions by 25% by 2020.\u00a0 As the High Court explained, in Urgenda<\/em> the Dutch government had initially set an emissions reduction target of 30% for 2020 and then downsized its goal without a stated reason.\u00a0 Moreover, the High Court reasoned, in Urgenda<\/em> the plaintiffs had challenged a standalone policy as violating human rights.\u00a0 Here, by contrast, FIE sought to block a measure that represented merely the first of many steps towards achieving a policy goal pursuant to a statute that afforded broad discretion.<\/p>\n

The High Court\u2019s decision is readily distinguishable from Leghari<\/em> v. Federation of Pakistan<\/em><\/a>. In Leghari<\/em>, the Lahore High Court ordered the government to take action pursuant to the National Climate Change Policy of 2012 and the Framework for Implementation of Climate Change Policy (2014-2030), which had simply not been implemented. \u00a0The Irish case is also distinct from lawsuits such as Juliana v. United States<\/em><\/a>, in which plaintiffs seek to compel government action in the absence of any framework climate change legislation.\u00a0 It is also distinguishable from cases such as Carvalho et al v. European Union<\/em><\/a> and ENVironment JEUnesse v. Canada<\/em><\/a>, which challenge the adequacy of climate legislation.\u00a0 FIE did not challenge the Act, but rather, argued that the government\u2019s plan to meet the goals set forth in the Act was inadequate.<\/p>\n

Importantly, the Irish court did not conclude that it was utterly without power to hold the government to account, clarifying that \u201c[t]here may be circumstances in which a court may make a mandatory order against an organ of state, but only when there is a clear disregard by the State for its constitutional obligations.\u201d\u00a0 Ireland, as the court described at length, is taking significant steps towards a mid-century goal adopted by the national legislature. It is possible that those steps are not ambitious enough, but the court appeared persuaded that the government was acting deliberately and reasonably.<\/p>\n

FIE is considering<\/a> grounds for appealing the decision.\u00a0 In the meantime, the court\u2019s conclusion that it is restrained by the separation of powers, in these particular circumstances, offers another data point in the growing universe of rights-based climate litigation.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Michael Burger and Hillary Aidun On September 19, the High Court of Ireland issued an important decision upholding the government\u2019s national climate action plan against a legal challenge.\u00a0 Friends of the Irish Environment claims that the plan fails to set adequately ambitious short-term greenhouse gas emission reduction targets, and is inconsistent with a 2015 […]<\/p>\n","protected":false},"author":1962,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[5673,4781,5671],"tags":[],"class_list":{"0":"post-6543","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-litigation","7":"category-human-rights","8":"category-international","9":"czr-hentry"},"yoast_head":"\nThe Significance of the High Court's Decision in Friends of the Irish Environment v. 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