Litigating Climate Change in Ireland

Abstract

Ireland generates the third-highest level of per capita emissions of greenhouse gases in the European Union and its government has consistently recognized the need for urgent action and acknowledged any delay therein ‘will only create more consequences for society and ultimately cost us more to make the transition’. But its 2017 National Mitigation Plan, which it was required to adopt under the Climate Action and Low Carbon Development Act (2015), was generally agreed to reflect policies that would not enable Ireland to meet its targets in 2020 or beyond. A legal challenge to the Plan brought by Friends of the Irish Environment led the High Court to acknowledge in 2019 that the group had standing to challenge the Plan and to accept, for the purposes of the case, that the Irish Constitution includes an ‘unenumerated’, or derived, right to a healthy environment. But the High Court rejected the challenge for several reasons and concluded that the government enjoyed considerable discretion in how to respond to global warming and how to satisfy the strictures of the Act. This article examines the principal issues that the Irish Supreme Court will have to consider when it hears the appeal by the FIE in June 2020. It addresses the questions of standing, justiciability, the applicable standard of review, the right to a healthy environment under Irish law, and the interpretive role of the constitutional Directive Principles of Social Policy.