Environmental Constitutionalism After Friends of the Irish Environment

 

Introduction

Friends of the Irish Environment v Government of Ireland [2020] IESC 49, was lauded as a ‘turning point for climate governance in Ireland’ and a resounding victory for environmentalists.^[1] In one sense this is true, as Friends of the Irish Environment (“FIE”) achieved their ultimate goal of having the National Mitigation Plan 2017 struck down, but the constitutional rights arguments they presented resoundingly failed.

However the Supreme Court, in their single unanimous judgement delivered by Chief Justice Frank Clarke, addressed the possibility of environmental constitutional rights. They did not rule out that such rights may exist and indeed showed a high degree of sympathy towards them. Hence this analysis shall attempt to sketch the future of such cases, in the spirit of similar articles,^[2] relying on the experience of Friends of the Irish Environment to examine the probable legal hurdles that must be overcome and potential arguments that may lead to the successful recognition of environmental constitutional rights.

Factual Context and Ratio Decidendi

In the High Court, FIE contended that the Irish Government (“Government”) had failed to adequately vindicate rights guaranteed by the Constitution and the European Convention on Human Rights (“ECHR”) through the National Mitigation Plan 2017 (“the Plan”), which is required to transition the State to a low carbon climate resilient and environmentally sustainable economy by 2050.^[3] They also submitted that the Plan was ultra vires the Climate Action and Low Carbon Development Act 2015 (“the 2015 Act”).^[4] The trial judge granted locus standi to bring these claims, found that the Plan was non-justiciable and even if justiciable it would stand.^[5] On appeal, directly to the Supreme Court, FIE’s contentions were unchanged bar further emphasis on the rights dimensions.^[6]

The Supreme Court’s central ratio was that the Plan’s measures were not sufficiently specific to meet the requirements of section 4 of the 2015 Act, therefore it was ultra vires, and should be quashed.^[7] However, the Court found FIE did not have locus standi for their rights-based claims but nonetheless issued a number of landmark statements which form the basis for this analysis.

Separation of Powers and Judicial Activism

Prior to engaging in the analysis of prospective environmental constitutional rights it is beneficial to consider the apparent shift in the court’s attitude Friends illustrates, as it contextualises the following considerations.

In response to the argument that the Plan was solely adoption of policy and therefore non-justiciable,^[8] Clarke CJ expressed scepticism that any area enjoyed total immunity from judicial review on separation of powers’ grounds, before identifying this was not at issue because the policy became law under the 2015 Act and was therefore justiciable.^[9] The court then displayed further proclivity for engaging in enhanced judicial scrutiny of legislative and indeed executive action, by observing that ‘constitutional rights and obligations and matters of policy do not fall into hermetically sealed boxes’ and the Courts must vindicate constitutional rights even in circumstances of complex matters involving policy.^[10] Interestingly the court held that policies intra vires a statute could be annulled without a collateral attack invalidating the statute itself. When discretion is afforded in the exercise of statutory power or obligation and is done in an unconstitutional manner, when constitutional courses of action were possible, then despite technical compliance with the statute and assumptions of constitutionality, the measure will be struck down.^[11] This is potentially indicative of an interventionist future judiciary. The decision regarding locus standi, which this article shall consider subsequently, was admittedly a pointed defence of qualifications to bring cases challenging legislative or executive decisions. It may have been a conservative position for the court to adopt but it demonstrates a commitment to the separation of powers with the court adopting an actively renewed role therein. With apparent past deference to the legislature and executive, for example through a pro-state application of the proportionality test,^[12] these considerations are crucial as the court appears to fiercely reassert a proactive judicial role in the constitutional order, a possible revival of judicial activism and definite shift in judicial attitude.

Derived Rights

This proactive disposition is further illustrated through the court’s observations on derived constitutional rights, which this article considers the most promising mechanism through which environmental rights will be given constitutional status, aside from referendum, and thus consider.

The court recharacterized unenumerated rights, those being the constitutional rights identified in Irish jurisprudence though not explicitly written in the constitutional text, as derived rights. These are rights with ‘root of title in the text or structure of the Constitution’.^[13] Clarke CJ elaborates this does not mandate a narrow textualist approach but rather follows Henchy J’s conception of rights inhered by virtue of one’s human personality established through consideration of the Constitution as a whole, which has been followed and expanded upon in subsequent case law.[^14] This appears to be an effort to establish a principled basis for recognising rights to resolve the primary failing of the unenumerated rights doctrine, its prior grounding problem, which had led to incoherence in previous judgements and jurisprudence that left cases turning on the preferences of individual judges,^[15] through locating these rights squarely within the Constitution itself. This also appears to be a clear rejection from the Supreme Court of the emergent practice in the High Court of citing rights within international human rights texts to imply their latent existence within the Irish constitutional order, which retreats from a possible ‘overly-broad foundation for finding new rights [leading] to an under-restrained judicial power’,^[16] in favour of a narrower more legitimate footing within the constitutional text.

This process of derivation from the Constitution will arguably constrain the judiciary from capriciously ‘looking into their hearts’ to identify rights and confine them to their role as interpreters of the Constitution.^[17] However this is questionable, the rebranding of unenumerated rights as derived rights may not meaningfully restrain judicial power or provide a principled basis for rights recognition, merely marginally legitimising judicial decisions regarding constitutional rights. The process of derivation outlined in Friends is incredibly forgiving. It does not bind judges to the Constitutional text, rather allowing them to possibly engage in linguistic acrobatics to identify whatever rights they see fit, provided there is passing reference to the Constitution. For example, if a derived right may stem ‘from a constitutional value such as dignity’ or freedom when taken with other express rights or obligations,^[18] it is difficult to conceive what rights cannot flow from such a construction. It is acknowledged that the term derived rights is new and may in practice require tight adherence to the constitutional text but on account of the doubts expressed this seems dubious. As formulated in Friends it may impose an illusory requirement on judges, allowing them to act beyond the confines of their interpretational constitutional role and engage in expansive rights recognition. While this would be a rather flagrant obfuscation of the separation of powers, it certainly bodes well for the constitutional environmental rights litigation this article shall now attempt to conceptualise.

Issues for Future Cases

As discussed, a proactive judiciary with a device for expansive rights recognition may bode well for environmental constitutional rights however Clarke CJ’s judgement flagged key issues which ought to be considered if they are to be recognised.

1. Standing

Standing is an obvious requisite in any constitutional rights litigation and it was this area in which FIE’s submissions were sorely lacking. FIE sought to rely on personal constitutional rights, namely to life and bodily integrity which they did not enjoy as a corporate entity. Thus they could not challenge the Plan’s constitutionality by demonstrating that ‘they have been affected in reality or as a matter of fact by virtue of the measure which they seek to challenge on the basis that it breaches rights’ as the general rule in Cahill or underlying principle in Mohan necessitates.^[19] The court therefore considered if they had standing under exceptions to this general rule, which is flexible to judicial discretion, concluding they did not. They concluded by extension that FIE could not bring ECHR claims. This was in contemplation of the belief that an overly-liberal relaxation of the general rule could blur the line indistinguishably between rights-based litigation and political or policy issues which ‘would not accord with the smooth working of the organs of State’.^[20]

On submissions from FIE this is a well justified and sound decision, as Clarke CJ stated ‘Other than a suggestion that it was desire to protect individuals from a possible exposure to the costs of unsuccessful proceedings, no real explanation was given as to why an individual or individuals could not have brought these proceedings instead of FIE [t]here does not seem to be any practical reason why FIE could not have provided support for such individuals in whatever manner it considered appropriate.’^[21] However, it ought to be considered that FIE were acting on behalf of future generations, a common refrain amongst environmentalists. In Coogan, standing was given as an exception to the general rule, because ‘there can never be a victim or potential victim who can sue’ which would be applicable to as-of-yet unborn generations threatened by climate crisis due to executive inaction.^[22] The impossibility of this group bringing a case, ought to give another party, such as FIE, standing on their behalf. The repeal of the 8th Amendment to the Constitution may lead the court to adopt a more sceptical position on this matter, but it remains a fair point that the court arguably failed to properly consider whose constitutional rights may be engaged in environmental issues.

In light of the weaknesses of an ‘unborn’ generations argument a more promising avenue would be to rely on Crotty v An Taoiseach,^[23] given the far-reaching impacts of climate change and environmental issues on the population at large. If it can be shown ‘that the Constitution is not being complied with in some matter that affects every citizen equally’ then the court will welcome one from the extensive ‘the potential class of individual plaintiffs’ they have referenced.^[24] The emphasis on the ‘equally’ aspect of Crotty may prove problematic given the inherently unequal impacts of climate change,^[25] as proponents of climate justice movements stress, but the court is unlikely to allow their legal reasoning to divorce itself from reality to the degree where it will bar a plaintiff affected by non-compliance with the Constitution to suffer without remedy. However should the courts engage in such an exercise an individual plaintiff may still simply rely on standing under the aforementioned general rule. Accordingly, if due regard is given to the reality of environmental issues by the courts in future cases where they engage constitutional rights concerns and appropriate submissions made by the plaintiff’s counsel this standing hurdle, which proved insurmountable for FIE, should be overcome.

2. Conceptualising Environmental Constitutional Rights

In Friends of the Irish Environment, the court was insistent that to recognise an environmental derived right there must be ‘some general clarity about the nature of the right so that there can be a proper analysis of whether the recognition of the asserted right can truly be derived from the Constitution itself.’^[26] Following this logic they rejected FIE’s attempts to assert the existence of a constitutional right to a healthy environment, through characterising the right to an environment recognised by Barret J, as it either did not extend beyond the right to life or bodily integrity, therefore was not itself a free-standing right, or was impermissibly vague.^[27] Hence, this article will now endeavour to hypothesise and give proper form to the nebulous rights FIE sought to argue.

Evident from the construction of the derived rights doctrine it appears that the courts have unequivocally adopted a ‘dignitarian or human personality-based conception of rights’,^[28] as its foundational jurisprudence. FIE had focused on the wellbeing aspects of Barret J’s comment that ‘it is difficult to see how the dignity and freedom of individuals is being assured if the natural environment on which their respective well-being is concerned is being progressively diminished’ through confining their arguments to life and bodily integrity, to the neglect of dignitarian argument.^[29] In a similarly inadequate manner, Barret J related ‘how an unclean environment engages already-recognised rights to bodily integrity, as well as to life, work, and property, without explaining what additional right, distinct from these recognised rights he is identifying’,^[30] and it is this deficit in reasoning we shall now attempt to bridge with dignitarian thinking.

Constitutional rights do not exist in a utopian legal vacuum entirely separate from the practical realities of life, however constitutional rights reasoning has presupposed, to varying degrees, the presence and continued existence of a natural environment conducive to human dignity. If we consider the right to life, as a starting position we assume that an individual’s right to life exists in the context of inescapable facts such as the role of genetics in one’s health, the possibility of an ‘act of God’ or hazard beyond human control, geographical conditions and certain social factors such as inequality. We assume that without interference by another entity these are the natural limitations on one’s life, which may indeed have been the case prior to the advent of climate change and pollution, artificial phenomenon stemming solely from human activity . With the warping of geographical conditions and increased frequency of extreme climate events due to the alteration of global temperatures in conjunction with the impacts of air, water, and soil pollution it becomes apparent how our starting point for conceptualising rights may assume the presence of a clean or healthy environment. Therefore it is necessary to conceive of the natural environment as the foundation upon which the protection of the right to life, bodily integrity, work, and property rests. The preservation of the natural environment is fundamental to the pursuit of human dignity given that it is inextricable from other rights or ‘an essential condition for the fulfilment of all human rights’ in Barret J’s words.^[31]

Admittedly conceiving of the right in this diginitarian vein leaves it vulnerable in failing to extend pre-existing rights and being impermissibly vague, however Clarke CJ’s commentary provides a useful scaffolding to give constitutional environmental rights a distinct nature. Barret J’s passing references to human dignity stopped short of elaborating any environmental constitutional right beyond pre-existing rights ‘capable of supporting individual claims in particular environmental situations.’^[32] Clarke CJ in contrast concretely suggested that environmental constitutional rights could be derived through interplay with the natural resource provision alongside the ‘right to property and the special status of the home’ within the Constitution.^[33] The author would see Article 10 (1) thereof, which states that ‘all natural resources...belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body’, as a vehicle through which one could argue that there was a duty on the State to protect the environment, conceived as a natural resource, in so far as their failures to do so negatively impact one’s ability to hold property and indeed the property itself. Given the special status of the home as property, in a hypothetical situation it is being negatively impacted due to environmental issues the court is likely to insist on a higher standard of protection than fungible property owned by a corporate entity. Thereby being conducive to the recognition of an environmental constitutional right enforceable against the State in cases of action or failure to act where in so doing they fail to adequately protect the environment resulting in damage to property. This would enable a potential environmental constitutional right to be of a suitably definite form and distinct character to extend it beyond pre-existing rights.

Therefore, this article would submit that arguments founded in dignitarian thinking developing Clarke CJ’s obiter comments are promising avenues for establishing an environmental constitutional right, without insertion by amendment as in other jurisdictions,^[34] as it fulfils the requirements of the derived rights doctrine and exists as a free-standing right with a potential operational scope.

3. Appropriate Circumstances and Democratic Approval

The court touched on two lingering issues which may become relevant in future constitutional environmental litigation, those being submissions from the Government regarding factual patterns in ECtHR environmental litigation and recognition of democratic principles in this area. There were minor issues which the court touched on and did not appear to strongly motivate their commentary or conclusions however they ought to be considered as they will be relevant for strategic litigation.

While the submissions referenced in the judgement were confined to the ECtHR they do provide an illustrative example of considerations for locating an appropriate set of circumstances to engage in strategic environmental litigation. The Government argued that ‘the jurisprudence of the ECtHR in environmental pollution cases is confined to situations where the pollution concerned ‘directly and seriously’ creates an imminent and immediate risk to guaranteed rights’ and on that basis it did not provide guidance on the application of the European Convention on Human Rights in circumstances where the environmental issue possesses ‘global reach rather than relating to an immediate pollutant with direct effects’.^[35] While engaging in a substantive analysis of the ECtHR jurisprudence on this matter is beyond the scope of this article, it is beneficial to consider that there will likely be greater ease for a litigant who can demonstrate an immediate, direct, serious and negative impact due to an environmental issue. This is not to rule out the possibility of a case such as The State of the Netherlands v. Urgenda Foundation,^[36] but to highlight what this article sees as a potentially more straightforward path for litigation in this area.

Clarke CJ alluded to the criticism of past rights-recognition by the judiciary on account of the democratic deficit therein. In discussing that ‘where a constitutional right in the environmental field has been recognised [it] has been achieved by the inclusion of express wording in the constitutional instruments of the state concerned’ the clear advantage of ‘democratic approval’ was referenced.^[37] While issues of democracy, legitimacy, and judicial review are widely known and discussed in these fields it is important to note the radical move judicial recognition of environmental constitutional rights would constitute. While this article has outlined a proactive shift in judicial attitude there may be a lingering conservatism or reluctance within the courts to engage in this exercise as a result. The judiciary is committed and confined to ‘identifying the true legal position and providing appropriate remedies in circumstances which the Constitution and the laws require’,^[38] but these considerations reinforce the earlier suggestion that the selection of an appropriate and compelling case for strategic litigation would be intensely beneficial.

Conclusion

Friends of the Irish Environment is more than a solitary success in demanding concrete measures for a particular environmental strategy, it is a blueprint for a potential path to hold the Irish Government to account for their failures combatting the climate and ecological crisis. As has been argued this judgement illustrates a distinct move from continued judicial deference towards a significantly more proactive disposition and this dynamic judicial attitude is coupled with a new doctrine for expansive rights recognition. Collectively this bodes well for the future of constitutional environmental rights litigation in Ireland. Provided that future submissions on behalf of plaintiffs appropriately address issues related to standing, the nature of the rights themselves, and are cognisant of the lingering judicial concerns in this sphere, environmental rights may be introduced to the corpus of Irish constitutional law.

 

 

[1] Áine Ryall, ‘Supreme Court ruling a turning-point for climate governance in Ireland’ The Irish Times (7 August 2020).

[2] Eoin Forde, ‘The Future of Climate Litigation in Ireland: An Appraisal of Climate Case Ireland’, Trinity College Law Review Online <https://trinitycollegelawreview.org/the-future-of-climate-litigation-in-ireland-an-appraisal-of-climate-case-ireland/>> accessed 10 March 2021.

[3] Friends of the Irish Environment v Government of Ireland [2019] IEHC 747.

[4] Ibid.

[5] (n 3).

[6] Friends of the Irish Environment v Government of Ireland [2020] IESC 49 Friends of the Irish Environment v Government of Ireland [2020] IESC 49.

[7] 6.48 (n 6).

[8] Garda Representative Association v. Minister for Finance [2010] IEHC 78.

[9] 6.24 (n 6).

[10] 8.16 (n 6).

[11] 6.30 (n 6).

[12] Rachael Walsh, ‘The Constitution, Property Rights and Proportionality: A Reappraisal’ [2009] 31 DULJ 1.

[13] 8.6 (n 6).

[14] McGee v. The Attorney General [1973] IR 284; Norris v. The Attorney General [1984] IR 36; Fleming v. Ireland [2013] 2 IR 417; NHV v Minister for Justice & Equality [2017] IESC 35.

[15] O'T. v B [1998] 2 IR 321.

[16] James Rooney, ‘International Human Rights as a Source of Unenumerated Rights: Lessons from the Natural Law’ (2018) 41 (1) DULJ.

[17] (n 13).

[18] ibid.

[19] Cahill v Sutton [1972] IR 269; Mohan v. Ireland and the Attorney General [2019] IESC 18.

[20] 7.11 (n 6).

[21] 7.22 (n 6)

[22] SPUC Ltd v. Coogan (No 1) [1989] I.R. 734.

[23] [1987] I.R. 713.

[24] (n 10).

[25] S. Nazrul Islam and John Winkel, ‘Climate Change and Social Inequality’, DESA Working Paper (October 2017) ST/ESA/2017/DWP/152.

[26] 8.9 (n 6).

[27] 8.11 (n 6).

[28] James Rooney, ‘International Human Rights as a Source of Unenumerated Rights: Lessons from the Natural Law’ (2018) 41 (1) DULJ; David Kenny, ‘Recent Developments in the Right of the Person in Article 40.3: Fleming v Ireland and the Spectre of Unenumerated Rights’ (2013) 36(1) DULJ 3 22; Conor O’ Mahony, ‘The Dignity of the Individual in Irish Constitutional Law’ in Grimm et al. Human Dignity in Context (Hart, 2016); Gerard Hogan, ‘Harkening to the Tristan Chords: The Constitution at 80’ (2017) 40(2) DULJ 7 1; David Kenny, ‘Remedial Innovation, Constitutional Culture, and the Supreme Court at a Crossroads’ (2017) 40(2) DULJ 8 5; Conor O’ Mahony, ‘Unenumerated Rights: Possible Future Directions after NHV’ (2017) 40(2) DULJ 1 71; Dáire McCormack-George, ‘Asylum Seekers and the Right to Work in Irish Law: NVH v Minister for Justice and Equality’ (2019) 61 Ir Jur 1 74.

[29] Merriman v Fingal County Council; Friends of the Irish Environment v Fingal County Council [2017] IEHC 695.

[30] (n 16).

[31] (n 29).

[32] ibid.

[33] 8.17 (n 6).

[34] 8.12 (n 6).

[35] 5.11 (n 6).

[36] ECLI:NL:HR:2019:2007, Judgment (Sup. Ct. Neth. Dec. 20, 2019) (Neth.).

[37] 8.12 (n 6).

[38] 1.1 (n 6).