The Irish Supreme Court has quashed the Government’s National Mitigation Plan (the Plan) on the ground that it falls “well short of the level of specificity required” by the Climate Action and Low Carbon Development Act 2015 (the 2015 Act).
Under the 2015 Act, the Plan is required to enable the State to achieve the National Transitional Objective (NTO), which has the objective of “transitioning to a low carbon climate resilient and environmental sustainable economy by the end of 2050.” Friends of the Irish Environment CLG (FIE) challenged the Plan in the High Court. This challenge was rejected, and FIE was given leave to appeal directly to the Supreme Court.
On the issue of justiciability, the Government argued that the Plan involved the adoption of policy, and matters of policy are not justiciable. The Court held that where legislation stipulates that a plan required under its provisions does certain things, the question of whether a plan “does what it says on the statutory tin” is a matter of law and is justiciable. The Court held that “It becomes a matter of law because the Oireachtas has chosen to legislate for at least some aspects of a compliant plan while leaving other elements up to policy decisions by the government of the day”.
The Court held that the 2015 Act “requires a sufficient level of specificity” as to how the Plan will achieve the NTO by 2050 “so that a reasonable and interested person could make a judgement both as to whether the plan in question is realistic and as to whether they agree with the policy options for achieving the NTO”. The Court noted that the 2015 Act involves both public participation in the process leading to the adoption of the Plan and transparency as to the formal government policy for achieving the NTO by 2050. It was held that “The level of specificity for the latter years may legitimately be less but there must be, nonetheless, a policy identified which does specify in some reasonable detail the kind of measures that will be required up to 2050.” The Court concluded that the Plan falls “a long way short of the sort of specificity” which the 2015 Act requires. The reasonable and interested observer would not know in sufficient detail how it is intended to achieve the NTO by 2050 from the information contained in the Plan.
On the issue of standing, the Court held that FIE, as a corporate entity, did not have standing to argue that the Government infringed the right to life and the right to bodily integrity under the Constitution and the European Convention on Human Rights (ECHR). The Court held that the basic principle remains that a plaintiff must show they have been personally affected by the law which they seek to challenge. Standing may be given outside this basic principle only where there is a “real risk that important rights would not be vindicated”. The Court noted that other than a suggestion that it was desirable to protect individuals from exposure to costs, no explanation was given as to why individuals could not have brought these proceedings instead of FIE.
The Court also expressed a view as to whether a constitutional right to a healthy environment existed. The Court held that constitutional rights may be engaged in the environmental field in an appropriate case. However, the right to a healthy environment “is either superfluous (if it does not extend beyond the right to life and the right to bodily integrity) or is excessively vague and ill-defined (if it does go beyond those rights).”
Click here to read the full judgment in Friends of the Irish Environment v Government of Ireland & Ors.
Click here and here for previous PILA Bulletin articles on the case.