Eco policy 'cannot drift into judicial sphere'

William Fry partner Conor Linehan told the Irish Centre for European Law (ICEL) virtual conference last week (11 November) that a proliferation of climate litigation reflects citizens’ desire for leadership from Government on the issues.

The environment law specialist pointed out, however, that, while there had been cases to compel Government to take action, there had also been challenges when the State had taken action.  

Presented jointly with the Environmental Protection Agency (EPA), the ICEL conference, convened by Dr Tom Ryan (EPA) and Dr Áine Ryall (ICEL), considered contemporary themes relating to environmental law.

The William Fry partner said that the recent Friends of the Irish Environment case hinged on the difference between actionable policy and the ambition and efficacy of any response to climate issues.

Questions

The climate action roadmap is prompting questions about the relationship between citizens and the State as a regulator of the environment, in terms of environmental rights, he said.

Linehan said the publication last month of the Climate Action and Low Carbon Amendment Bill  suggests that the model here will continue to be one of climate planning, policy and strategy, and with a roadmap of actions being required, mandated and shaped by statute.

In many countries, citizens are looking to constitutions and other sources of rights as part of wider environmental litigation strategies.

The Supreme Court judgment commented on FIE’s lack of locus standi to assert rights that the court said were “quintessentially personal in nature”.

Lenihan said this would be seen as important in FIE’s challenge to the validity of the National Mitigation Plan for a transition to a low-carbon economy.

Validity

FIE’s challenge to the validity of the National Mitigation Plan drew a response from Chief Justice Frank Clarke that too much is left to further study and investigation in the mitigation plan. 

“In my judgment, the plan falls a long way short of the sort of specificity which the statute requires,” he said.

The national transitional objective to a low-carbon, climate-resilient environment was expected in the 2015 plan, to re-orient the economy away from fossil fuel dependency.

But detail was expected on the specific sequence of policies and measures to achieve this objective.

That was clear in section 4.2 of the act, according to the chief justice.

Complex policy choices

This all gives rise to issues of non-justiciability and the separation of powers, lawyer Conor Linehan said, and this has been a feature of climate litigation in other jurisdictions.

The Irish Supreme Court accepted that the climate response involves complex policy choices that were matters for the legislative and executive branches. 

So, the court’s role was not in pronouncing on the efficacy of Government policy but rather in comparing the national mitigation plan to what the legislation said the plan ought to contain.

“That legislation was not just the statutory origin of the plan, but had certain things to say about the origin of the plan, including, crucially, a statement that made it clear that the plan had to convey some direction on how it was proposed to achieve the national mitigation plan,” said Linehan. 

The existence of the 2015 act is crucial, the chief justice said.

Justiciable

“I conclude that issues are justiciable and do not allow an impermissible impingement by the courts into an area of policy,” he said.

In other words, what might once have been policy has become law by virtue of the 2015 act.

The chief justice concluded that the plan fell short of the sort of specificity that the statute required.

Linehan said it was significant that the case hinged on substantive grounds.

“It was the content of the national mitigation plan that was deemed to be legally deficient,” Linehan pointed out.

Rights-based claim

FIE’s rights-based claim, based on the plan’s trajectory, did not succeed.

The claim envisaged an initial rise in the State’s level of greenhouse gas emissions in breach of constitutional rights to life and bodily integrity.

The chief justice also said no real explanation was given as to why the FIE case was not taken by an individual or individuals, other than because of a fear of exposure to costs.

The chief justice continued that, without a strong threshold of personal interest in constitutional cases, those who oppose particular bills on their way through parliament would likely be encouraged to continue opposition by a means of constitutional challenge seeking to invalidate the measure.

As a result, the development of constitutional rights through an environmental prism would have to await litigation by individuals, Linehan noted.

Impermissible drift 

“According to the chief justice, [without] an emphasis on the constitutional genesis for a putative unenumerated or derived right, there was a risk of a blurring to the separation of powers.”

This potentially could allow policy matters to drift imperceptibly and impermissibly into the judicial sphere, Linehan said.

The difficulty of that claimed right to a healthy environment prompted the chief justice to ask what exactly it means, and whether it really advances rights beyond the right to life and bodily integrity, without that right having a concrete shape.

“If not, what is the point of recognising such a right?” the chief justice asked, saying no cogent case had been made by FIE.

Constitutional values

There may be a case to be made in other values to be found in the constitutional text and other provisions – such as the right to property and the special position of the home, the chief justice said.

“That’s a very interesting comment, taken on its own it appears to emphasise existing provisions in the constitution,” Conor Linehan observed.

It might suggest that the interplay of rights potentially gives rise to specific State obligations, Linehan commented.

Takeaway

The key takeaway of the FIE case is the Supreme Court comment on the boundaries between climate law and climate policy, as well as the area of justiciability, Conor Linehan noted.

The court’s observations on the claimed ‘right to an environment consistent with human dignity’ were long-awaited, he said. 

And the separation of powers becomes an issue where climate policy and planning takes place in a framework of climate law, he concluded.