A lawsuit brought by an environmental group against the Irish government seeking more urgent action to stave off climate catastrophe and protect citizens came before the country’s Supreme Court last week. If successful, it could have a ripple effect on courts being used to hold national governments to account for failing to slash emissions at the required pace to avoid the worst impacts of climate change.

Climate Case Ireland, as the Irish lawsuit is called, challenges the country’s 2017 National Mitigation Plan. That policy sets out pathways for transitioning to a low carbon economy by 2050 but, as the lawsuit argues, does not include near-term requirements for rapidly reducing greenhouse gas emissions.

Friends of the Irish Environment (FIE) is suing the government claiming that the 2017 policy is inadequate and violates Irish statutory law, the Irish Constitution, and the European Convention on Human Rights. According to FIE, data from the government’s own Environmental Protection Agency shows that Ireland’s emissions between 1990 and 2020 will increase by 11-12 percent, and the country is not on track to meeting its emission reduction goals by 2030.

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The case is one of only a handful of climate change lawsuits around to be heard before a nation’s highest court. In September 2019, the High Court in Dublin ruled in favour of the government, deciding the State has broad discretion to set policy. FIE appealed the ruling including a direct appeal to the Supreme Court, which accepted the case earlier this year. Hearings before seven Supreme Court judges took place June 22-23 at King’s Inns, Ireland’s oldest school of law. The case was heard there instead of the courthouse to allow for social distancing.  

Arguments

The first day of hearings on 22 June featured arguments from Friends of the Irish Environment.

According to a summary of the proceedings, FIE Senior Counsel Eoin McCullough told the Supreme Court judges that time is running out to act on the climate crisis and that Ireland is failing to reduce emissions with the urgency needed to safeguard human rights and protect citizens from increasingly severe climate impacts.

Irish citizens’ constitutional rights, like right to life, are at risk due to climate change, McCullough argued. He said Ireland has a responsibility to act on climate change, but the 2017 National Mitigation Plan fails to provide emissions reductions in short and medium term. Over 20,000 Irish citizens have signed a petition in support of Climate Case Ireland.

The Irish government, represented by attorneys Eileen Barrington and Rory Mulcahy, provided counter arguments on the second day of hearings on 23 June.

The government argued that the National Mitigation Plan does not violate the Constitution or breach human rights obligations. FIE’s legal challenge is not reviewable by courts, the government argued, because it is an attack on policy choices that the government has authority to make. The government also argued that climate change is a global challenge and Ireland’s emissions are “tiny” in the global context.

Responding to the government, Friends of the Irish Environment explained that Ireland still has an obligation to do its part in reducing emissions.

The Supreme Court is expected to issue a ruling at a later date, possibly in the coming months.

Following the Netherlands

Climate Case Ireland is modeled after the groundbreaking climate lawsuit in the Netherlands brought by the Urgenda Foundation against the Dutch government. That case won an initial verdict in 2015 ordering the government to increase its level of emissions cuts by 2020 – the first time a court anywhere in the world had ordered a national government to take more aggressive climate action in order to help protect human rights.

The Dutch government tried to appeal the ruling but lost, and last December the Supreme Court in the Netherlands upheld the lower court rulings and gave Urgenda a final victory.

Today five years ago, we won the historic @urgenda #climate case, establishing for the first time that governments not only have a moral, but also a legal duty to protect us from dangerous climate changehttps://t.co/vtlEJd464u https://t.co/aME2jfmGQh

— Dennis van Berkel (@DennisvBerkel) June 24, 2020

In the Urgenda case the courts determined that the Dutch government’s inadequate action on climate constituted a violation of the European Convention on Human Rights. The Irish Supreme Court could make a similar determination. The Supreme Court is also considering whether Ireland’s climate policy is a violation of the Irish Constitution. In 2017 an Irish court recognized that the right to a healthy environment is protected under the Constitution.

“One of the most important decisions that will be coming down [from the Supreme Court] is whether the Irish Constitution contains this unremunerated right to a safe environment, bodily integrity and so forth,” said Patrick Parenteau, a professor of environmental and climate law at Vermont Law School who is familiar with the Irish case from a recent semester spent at University College Cork in Ireland.

“The big questions are will the Supreme Court recognize a constitutional right, and will it recognize that the [European] Human Rights Convention applies to decisions made by the Irish government in addressing climate change?”

So far, with a few exceptions such as the Urgenda case, courts generally have been unwilling to intervene in climate lawsuits challenging government policy. Courts in the U.S. and the UK, for example, have dismissed climate lawsuits largely over concerns that courts should not be directing climate policy. Should the Irish Supreme Court rule against the Irish government, it could set an example that governments can be held accountable in courts for their lack of urgent action on climate change.  

 “I think the more that high courts like the Irish Supreme Court start coming down on the side of saying there is a role for the courts to intervene, that the governments are not doing what they need to be doing [on climate change], that probably gains some momentum,” Parenteau said.

Image:  © Climate Case Ireland