Climate Case Ireland: Paving the way for improved environmental rights?
22nd April 2021
Summer 2020 saw the emergence of a “landmark judgment”, Climate Case Ireland, which highlighted the flaws in Ireland’s National Mitigation Plan. In adopting the Plan, the Irish government were failing to meet the requirements of the Climate Action and Low Carbon Development Act 2015, and it was determined that the plan ought to be quashed. Of course, this was the primary result of the influential case but what of a more secondary issue, the constitutional right to a healthy environment?
It was recognised in the High Court in Friends of the Irish Environment (FIE)’s 2017 case that the unwritten constitutional right to an environment consistent with human dignity exists.
“On the other hand, in Climate Case Ireland, the judiciary claimed that the right to a healthy environment could not be “derived from” the constitution. Such an unenumerated right under the constitutional right to life and bodily integrity would be “superfluous”, and simply too “vague” if it failed to extend beyond rights previously established.”
That noted, learned academics argue that the Supreme Court has left the doors open for further rights-based arguments in litigation. The European Convention on Human Rights Act 2003 has given the European Convention on Human Rights (ECHR) a certain legal weight in Ireland. While there is regrettably no explicit right to a healthy environment under the ECHR, FIE claimed that the National Mitigation Plan, by allowing emissions to rise, breached Articles 2 and 8 of the ECHR by breaching their right to life, their right to bodily integrity and their right to an environment consistent with human dignity respectively in Climate Case Ireland. This argument did not come to fruition as FIE did not meet the criteria to classify as a victim under Article 34 of the ECHR.
Similarly, Non-Governmental Organisations in other European countries have failed to classify as victims under Article 34. In the Urgenda case, it was established that the government of the Netherlands had an obligation to reduce carbon emissions by 25% by the end of 2020, in comparison with 1990 levels. Urgenda utilised Articles 2 and 8 of the ECHR to raise the issue of their government failing to meet their environmental obligations. However, they were not able to rely on the ECHR, as they did not classify as a victim under the ECHR, but were instead able to rely on the Dutch Civil Code.
Perhaps further litigation with a private person (a victim under Article 34, ECHR), as suggested in Climate Case Ireland, may lead to the recognition of a constitutional right to a healthy environment. This begs the question, what would be the benefits to recognition of such a right?
“By 2013, over 100 countries had constitutionally ratified the right to a healthy environment. In a European context, better environmental protection has ensued.”
In a European context, better environmental protection has ensued. For example, in Taskin v. Turkey, the plaintiff’s Turkish constitutional right to a healthy environment, coupled with Articles 2 and 8 of the ECHR allowed the plaintiff to succeed in showing that their right to a healthy environment had been breached.
There have been Irish examples of situations where such a constitutional right might have led to better environmental protection. In 2019, a terrible act of ecocide occurred, destroying the Tallaght Wetlands in Dublin. If such a right were in existence, and the public possessed knowledge of their right, would the pouring of silt over the wetlands even have been considered? Would the Tallaght locals have had legal standing or locus standi to make a case for breach of a fundamental right? Similarly, in the 1988 case of Hanrahan v. Merck Sharp and Dohme Limited, Hanrahan was awarded damages for injury suffered from the respondent’s factory emissions. The Supreme Court determined that too much weight had been given to scientific evidence in the High Court and not enough to the locals’ direct evidence of the pollution. Could this case have been more easily resolved with a constitutional right or would the pollution have even occurred?
Climate Case Ireland has paved the way for further climate-based litigation in Ireland and there is the opportunity for us to see stronger, more renowned environmental protection than before, should we ratify the constitutional right to a healthy environment. Articles 2 and 8 of the ECHR provide a strong argument for enforcing the right, but only where a victim, under Article 34, is a litigant. Other European countries are experiencing improved protection and there have been examples in Ireland where such a constitutional right would have been instrumental in preserving our environment. There is only one remaining question, will Ireland join over 100 countries worldwide in amending our constitution, Bunreacht na hÉireann, to ratify improved environmental rights?
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