Introduction

On September 19^th, Mr Justice Michael MacGrath delivered the much-anticipated ruling on Friends of the Irish Environment’s (“FIE”) action against the Irish government, in a dispute known as ‘Climate Case Ireland’. Submissions were delivered in January to a High Court chamber filled with supporters of FIE’s cause,^[1] and their legal arguments considered numerous points of law not limited to constitutional rights, separation of powers and the extent of justiciability of executive actions. FIE’s central claim was that the Government’s National Mitigation Plan 2017 failed to adequately respond to the targets set in various UN accords such as the Kyoto Protocol and 2015 Paris Agreement, and that this inaction was endangering the fundamental rights of Irish citizens.

In dismissing the judicial review claim, MacGrath J considered the National Mitigation Plan 2017 to come within the realm of policy-making, which is exclusively reserved for the executive branch of government. Furthermore, it was held that even if such governmental climate policy was found to be justiciable, it could not be held to be impermissible due to the wide margin of discretion given to the government in formulating the 2017 Plan as per the  ^[2] Over the course of his ruling MacGrath J also clarified the precedential status of locus standi for non-natural persons in environmental cases, and raised issues regarding the separation of powers doctrine and more recent developments in ECHR jurisprudence.

Background - National Mitigation Plan 2017

This judicial review application concerned the government’s implementation of the National Mitigation Plan 2017, which was enacted pursuant to s3 of the Climate Action and Low Carbon Development Act 2015. The 2015 Act, according to its Long Title, was enacted by the government for the purposes of ‘pursuing the transition to a low carbon, climate resilient and environmentally sustainable economy’^[3] – the achievement of this by the end of 2050 is referred to in this Act as the ‘National Transition Objective’.^[4] To achieve this National Transition Objective, the Minister for the Environment is empowered to formulate and submit to the Government for approval a ‘National Mitigation Plan’, and a ‘National Adaptation Framework’.^[5] The first of these measures, the National Mitigation Plan, was the focus of this case.

The National Mitigation Plan is a series of policy recommendations that are geared towards achieving the previously mentioned National Transition Objective, and its formulation is guided by s 4(7) of the 2015 Act. According to this section, the Minister, when formulating a National Mitigation Plan, must have regard to:

• State obligations under EU law;
• The promotion of sustainable development;
• Cost-effectiveness;
• Relevant scientific advice; and the
• Recommendations of an Advisory Council set up under the 2015 Act.^[6]

When the National Mitigation Plan is submitted to Government for their approval, the Government is obliged under s3(2) to have regard to the United Nations Framework Convention on Climate Change 1992, governmental policy on climate change, climate justice, relevant EU law and the Environmental Protection Agency’s projection of future greenhouse gas emissions.

Arguments of Friends of the Irish Environment

In their submissions, FIE considered the 2017 Plan enacted by the Minister to be:

• An ultra vires employment of Ministerial power under the 2015 Act;
• A breach of Constitutional and ECHR rights.^[7]

Pursuant to this, FIE submitted that the 2017 Plan be quashed, along with seeking various declaratory reliefs outlining the inadequacy of the 2017 Plan, and a declaration from the government of their intention to enact a plan under the 2015 Act that more effectively responds to the issue of greenhouse gas emissions.^[8] In support of these arguments, FIE also asserted that the 2017 Plan would fail in reducing Ireland’s greenhouse gas emissions by 25-40% by 2020, an obligation stemming from Ireland’s position as an Annex I country under the Paris Agreement 2015. The two arguments can be dealt with sequentially.

(1)   Ultra Vires the 2015 Act

FIE’s first claim came under the argument that the Minister’s enactment of the National Mitigation Plan 2017 was ultra vires the 2015 Act. The argument goes as follows – the Minister is only empowered to produce a National Mitigation Plan that conforms to the 2015 Act; if the 2017 Plan is considered to be incongruous with respect to the aims of the 2015 Act, it is therefore not a plan the Minister was empowered to make. Following this, it may be quashed.

The first issue to be decided is if the 2017 Plan is even reviewable by the court in the first instance. This question of justiciability – that being, whether or not the 2017 Plan is amenable to judicial review - stems from considerations of the separation of powers doctrine. MacGrath J explained this simply as, ‘The Government and the Government alone may exercise the executive powers of Government’.^[9] The powers conferred to the Government are numerous and often ill-defined, but it is enough to say that the most relevant executive power to consider in this case is that of policy-making. Policy-making is considered one of the core functions of the executive branch of government, and cannot be exercised by any other branch. This was illustrated clearly by Hogan J in the case of Moore v Minister for Arts, Heritage and the Gaeltacht:

‘The system of separation of powers provided by the Constitution is quite clear, namely, that matters involving policy and political choices of this nature are matters for elected representatives and must therefore by definition be either executive or legislative powers which cannot appropriately be discharged by an unelected judiciary’.^[10]

This principle is even more appropriate in cases that consider the appropriation of public funds in relation to the national interest; MacGrath J points to the ruling of Charleton J in the case of Garda Representative Association v Minister for Finance on this point:

‘The Government has the power to set policy on areas of national interest and to disperse funds in accordance with that policy. These decisions are, in my view, in a category beyond the scope of judicial review’.^[11]

What this means for the 2015 Act and subsequent 2017 Plan is that if such documents are found to be an extension of Governmental policy-making as opposed to more regular executive function, they may be non-justiciable. Furthermore, the fact that the 2017 Plan also considers disbursement of public funds may put it out of reach of judicial review regardless, according to the judgment of Charleton J in Garda Representative Association. As a result, the exact wording of the 2015 Act and 2017 Plan was considered by MacGrath J.

In reference to the reduction of emissions by 2050 (the National Transition Objective), the Government’s duty according to the 2015 Act is to ‘endeavour to achieve’ it, not just ‘achieve’ it. Similarly, the purpose of the 2017 Plan according to the 2015 Act was merely to provide ‘policy measures’ that ‘in the opinion of the Government’ may manage greenhouse emissions.^[12] As a result, this appears to amount prima facie to deal with issues of policy and public funds – categories of Governmental activity which are traditionally all but out of reach from judicial review. Stemming from this, it would seem that the 2017 Plan was prima facie non-justiciable. However, MacGrath J did not formally state this, instead opting in the interests of comprehensiveness to analyse the legitimacy of the 2017 Plan as if it were justiciable.

If justiciability is assumed, the difficulty in FIE convincing the court to intervene in the enactment of 2017 Plan is still considerable. To warrant judicial interference in the policy-making sphere of the executive, there would have to be a ‘clear disregard’ shown by the executive for the Constitution in its actions. This was noted in the case of TD v Minister for Education,^[13] where Murray CJ ruled that actions taken by the executive are presumed to be compatible with the Constitution, unless a litigant can show that the Government acted in ‘clear disregard’ of its constitutional obligations.^[14] According to Murray CJ, ‘clear disregard’ meant a ‘conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness’.^[15]

Following this, it is clear that the policy considerations of the 2017 Plan were unlikely to have ever reached this high watermark. As a result, MacGrath J rejected this line of argument from the applicant without needing to determine definitively if the 2017 Plan was even justiciable to begin with.

(2)   Breach of Constitutional and ECHR Rights

The other line of argument pursued by FIE came in the form of alleging a direct breach to the Constitutional and ECHR rights of Irish citizens. Firstly, the court had to consider the locus standi of Friends of the Irish Environment in this case. Normally, the inability of a non-personal body such as Friends of the Irish Environment to be interested in rights such as bodily integrity and life would have precluded them from taking this challenge. However, following the rulings of Merriman v Fingal County Council^[16] and Digital Rights Ireland v Minister for Communications,^[17] this rule has been relaxed in cases relating to environmental issues and those where the body corporate has a bona fide interest in its members and the public at large. On this basis, MacGrath J noted that he was ‘satisfied to accept… that the applicant has established that it has locus standi’.^[18]

Turning firstly to the Irish Constitutional rights – FIE alleged ‘an infringement to the right to life, right to bodily integrity, and right to an environment consistent with human dignity’.^[19] These were all quickly dismissed by MacGrath J, with the judge noting that ‘it cannot be concluded that it is the plan which places these rights at risk.’ It would appear that the lack of specificity in the 2015 Act and 2017 Plan which precluded it from constituting an ultra vires policy also ensures its inability to be considered causative in infringing constitutional rights. In the words of MacGrath J, the 2017 Plan is ‘but one, albeit extremely important, piece of the jigsaw’.^[20]

Following this, MacGrath J considered the alleged breaches to Articles 2 and 8 of the European Convention on Human Rights – the right to life and the right to respect for family and private life. On this point, MacGrath J was invited to consider the recent ruling in the Dutch case of Urgenda.^[21] In Urgenda, the Dutch Court of Appeal found the State to have acted breached Articles 2 and 8 of the ECHR. The ruling in Urgenda was especially surprising due to the active role the Court appeared to take in intervening in government function, and its invocation of scientific literature in reaching its conclusion. In Urgenda, the Court noted that the Dutch government’s failure to put in measures to ensure it was likely to reach a 25% reduction in greenhouse gas emissions by 2020. What was especially notable about this ruling was that even though the government had submitted that they estimated greenhouse gas emissions to fall by 19-27%, this wide ‘margin of uncertainty’ was considered unacceptable by the Court.^[22]

However, MacGrath J did not consider such a ruling to be applicable to the case at hand. Noting that ‘This court knows little of the duty of care under Dutch tort law’, MacGrath J noted that the separation of powers in the Dutch constitutional order may be different to that of Ireland’s and that causality was not a major factor in the ruling of Urgenda. As a result, it was found that there was nothing in Urgenda that made the ruling binding in this case. Furthermore, one of the factors that determines a violation of Article 8 ECHR rights is the legality of the impugned legislation. As a result, with MacGrath J having already considered the 2017 Plan to be prima facie lawful, an appeal to ECHR rights on this point was unlikely to ever be fruitful.

MacGrath J noted further that because the case of Urgenda considered an issue relating to articles of the ECHR that have not directly addressed by the European Court of Human Rights itself, Irish courts are not necessarily obliged to follow it. This principle was enunciated in McD v L & M^[23] with Fennelly J noting that:

‘It is vital to point out that the European Court has the prime responsibility of interpreting the Convention… The courts of the individual states should not adopt interpretations of the Convention at variance with the current Strasbourg jurisprudence’.^[24]

Following this, MacGrath J noted that wider arguments such as general national policy in relation to climate change were not made by FIE – after all, this case was merely a judicial review application concerning the executive’s action of adopting the 2017 Plan. In this case, the purpose of the 2015 Act itself was not called into question for its efficacy, nor was there an argument made that the Irish government was failing its citizens in general in relation to its perceived nonfeasance in the issue of climate change. According to MacGrath J, this is all to say that in relation to the issues that FIE’s judicial review application could raise, the Government could not be compelled to quash or alter its current climate change policy as enunciated in the 2017 National Mitigation Plan.

Discussion – What Next?

On the face of it, this ruling is a heavy blow to Irish climate activism, and  a reinforcement of the deferential attitude of the judiciary towards actions of the executive that has been a constant in recent Irish jurisprudence. Climate activists may find some solace in the fact that the Court seemed to explicitly recognise the issue of climate change in a manner not yet seen in the Irish courts, with MacGrath J going as far as to say in the first page of his ruling that ‘The threat to the earth, its inhabitants and ecosystems, posed by the effects of climate change is well documented. The need for action is undoubted’.^[25] That being said, it does appear that if the Government is to be held to task on its climate change policy, it does not seem likely that the Irish Courts are going to be arena in which this fight is won.

However, all is not lost for Irish environmental activism. Firstly, MacGrath J’s endorsement of the idea that it is a party’s interests – not necessarily its enjoyed rights – that gives it locus standi suggests that environmental interest groups such as FIE will have little issue in having their legal standing recognised in future cases. This is a welcome advancement in the Irish judiciary’s appreciation of the concept, and may open the door for future cases to be taken by representative groups.

Secondly, implicit in the judgement is the suggestion that a constitutional challenge to the 2015 Act itself may be a possible avenue of litigation.  While the scope of this judicial review limited the Court’s focus to the 2017 Plan in relation to the goals of the 2015 Act, there is nothing stopping an interest group challenging the 2015 Act in relation to its inadequacy in dealing with the climate crisis. However, this approach may run into numerous issues, such as nonfeasance on a policy level being a difficult ground for a court to reach a finding of unconstitutionality. There is also the further issue that it could be argued by the State that the 2015 Act is not the extent of the Government’s policy in relation to tackling climate change, and as a result this may be a difficult route to take.

There is also the suggestion in this ruling of the possibility of taking a free-standing challenge to the constitutionality of the Government’s action by means of a proportionality analysis, notwithstanding any particular legislative developments. Such an approach may force the judiciary to consider more seriously the ruling in Urgenda, but the nature of the Irish separation of powers may yet again persuade the judiciary to grant enough deference to the executive on this point, notwithstanding ECHR considerations.

This is all to say that the Court may be effectively hamstrung in dealing with an issue as multi-faceted and policy-oriented as climate change, according to the Irish constitutional order – if the Supreme Court could not be persuaded to intervene in the case of TD which brought with it clear alleged impingements of fundamental rights by the Government and a cost to the state of (mere) millions, it is unlikely that the an Irish court could be convinced to intervene in an issue which less clearly affects fundamental rights, and would cost at least hundreds of millions. Such issues, it would seem to the court, should be left to the Dáil.

Conclusion – Right Words, Wrong Place

In summation, it appears that the efforts of climate activists in Ireland may not have garnered such judicial support as to trigger a High Court rebellion against the executive. Nor, it should be stated, would such a response have been particularly welcomed. If there is a silver lining to be taken from the ruling in this case, it is that Irish interest groups may be better informed that the Dáil itself might be more responsive to a reformulation of Ireland’s climate change policy. After all, it is the elected representatives in the legislature and executive that the Irish citizenry have given this power to, to be checked by the judiciary in situations of the most ‘clear disregard’ for our Constitution.

The ruling of MacGrath J in this case was noted by Suryapratim Roy to be ‘clearly articulated and accessible’,^[26] an observation with which this commentator agrees. While FIE have indicated their dissatisfaction with the ruling and mooted the possibility of an appeal,^[27] it would seem that a more successful result would come from a separate case against the 2015 Act itself, a freestanding proportionality challenge against the executive, or at the very least a rephrasing of the arguments in this case with more weight being placed on the decision in Urgenda and its ECHR implications.

As our constitutional order matures and our branches of State settle into a more fixed division of power, it may be seen that the avenue in which social concern expresses itself becomes just as, if not more, important than the prominence of the social concern itself. Taking this to its logical conclusion, the argument could be made that the petitioning of the government for a policy change, or even a citizens’ assembly on climate issues with the possibility of a constitutional referendum, may be the best avenues for Irish environmental activism.

[1] Mary Carolan, ‘Ireland ‘completely off course’ in meeting carbon reduction targets – court told’ The Irish Times (Dublin, 22 January 2019).

[2] Climate Action and Low Carbon Development Act 2015.

[3] Climate Action and Low Carbon Development Act 2015, Long Title.

[4] Climate Action and Low Carbon Development Act 2015, S 3(1).

[5] Climate Action and Low Carbon Development Act 2015, S 3(1).

[6] Climate Action and Low Carbon Development Act 2015, S 4(7).

[7] Friends of the Irish Environment v Ireland [2019] JR 793, [12].

[8] ibid.

[9] Friends of the Irish Environment (n 6), [88].

[10] [2018] IECA 28, [55].

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

[12] Friends of the Irish Environment (n 6) [112].

[13] TD v Minister for Education [2001] 4 IR 259.

[14] ibid, 337.

[15] ibid.

[16] [2017] IEHC 695.

[17] [2010] 3 IR 251.

[18] Friends of the Irish Environment v Ireland (n 6) [131].

[19] ibid, [132].

[20] ibid.

[21] State of the Netherlands vs Urgenda Foundation [2018] ECLI:NL:GHDHA:2018:2610.

[22] ibid, [73].

[23] [2009] IESC 81.

[24] ibid, [104].

[25] Friends of the Irish Environment (n 6) [2].

[26] Suryapratim Roy, ‘Is climate change an issue of human rights?’ The Irish Times (Dublin, 15 October 2019).

[27] Tony Lowes, ‘Friends of the Irish Environment to consider grounds for appealing High Court ruling in historic climate case’ https://www.friendsoftheirishenvironment.org/climate-case/17703-friends-of-the-irish-environment-to-consider-grounds-for-appealing-high-court-ruling-in-historic-climate-case Accessed 17 October 2019.