Bear necessities

The development of ‘framework’ and ‘climate-adjacent’ litigation in the Irish courts mirrors a broader global trend that harnesses the power of law to hold governments and institutions accountable for climate commitments. Rose Wall burns some turf 

Speaking at an event in October, Taoiseach Micheál Martin stated: “I don’t think we can litigate for climate change … if we get into a position where we’re going to challenge every single thing, saying it’s against the climate, we’re going to divide society fairly fast and then we’ll get a negative reaction against good, progressive policies that seek to address climate and very serious issues.” 

So what role does litigation play in what the International Court of Justice (ICJ) describes as “an existential problem of planetary proportions that imperils all forms of life and the very health of our planet” – the urgency of which has been repeatedly emphasised by the Intergovernmental Panel on Climate Change (IPCC), which has stated that emissions reductions achieved this decade will largely determine whether global warming can be limited to Paris Agreement thresholds of +1.5°C or +2°C above pre-industrial levels? 

Exceeding the 1.5°C threshold runs a high risk of triggering climate ‘tipping points’, which, in turn, risks further severe, abrupt, and irreversible climate change, even if global temperatures are subsequently reduced. 

Despite the grave and immediate nature of the risk, there is a wide gulf between what science demands and what is being delivered. 

It is in this context that, around the world, people are increasingly turning to courts, seeking to hold governments and the private sector accountable to their climate obligations, with almost 3,000 climate cases filed across nearly 60 countries by the end of 2024. 

Insufficient ambition 

Early cases targeted governments, challenging insufficient ambition of climate policies; however, increasingly, cases are being taken against corporate or financial actors, with major emitters, financiers, and supply chains seen as critical levers for change. 

These cases range from greenwashing claims; actions against directors, investors, or financiers for failing to manage climate risk; lawsuits holding ‘carbon majors’ responsible for harm caused by emissions; as well as cases targeting banks, insurers, or investors financing fossil-fuel expansion. 

Moreover, human-rights arguments are increasingly front and centre, with courts holding that state inaction on climate may violate fundamental rights. 

In 2024, in the KlimaSeniorinnen case, the European Court of Human Rights gave judgment in its first climate case, holding that the Swiss government’s inadequate action on emissions was a breach of article 8 of the European Convention on Human Rights. 

The court’s ruling detailed states’ positive obligations in the context of climate change “to adopt, and to effectively apply in practice” climate laws and measures capable of mitigating the existing and potentially irreversible future effects of climate change. 

In order for this to be genuinely feasible and to avoid a disproportionate burden on future generations, the court held that “immediate action needs to be taken and adequate intermediate reduction goals must be set for the period leading to net neutrality”. 

International role 

International institutions have also been playing a role, with the International Tribunal for the Law of the Sea, the ICJ, and the Inter-American Court of Human Rights all confirming that states have obligations under international law to address climate change. 

In July, the Inter-American Court of Human Rights recognised an obligation not to cause irreversible climate harm as a jus cogens, placing it within the same normative framework as prohibitions on genocide, torture, and slavery. 

It also recognised that nature and its components may be subjects of rights. 

Also in July, the ICJ confirmed that states have legal obligations under international law (including under customary international law), to prevent and respond to climate change by taking “rapid, substantial and sustained” action consistent with the best available science and the 1.5°C goal. 

Significantly, the court held that the duty to act includes regulating the conduct known to cause harm, which must begin with fossil-fuel activities, stating that failure to act or to regulate private actors contributing to emissions can amount to an internationally wrongful act, triggering responsibility. 

Persuasive weight 

While these opinions are non-binding, in the sense of being a national court judgment, they carry strong interpretive and persuasive weight. 

In fact, only a day after the ICJ opinion, lawyers for Coolglass distributed copies of it to the Supreme Court on the final day of hearing (see below). 

In Ireland, despite the declaration by the Dáil in 2019 of a climate and biodiversity emergency and clear legally binding emissions-reductions obligations at EU and domestic level, we are one of the highest per-capita emitters of greenhouse gas (GHG) in Europe. 

The EPA, the independent statutory body that reports Ireland’s GHG emissions nationally and to the EU in accordance with international guidelines, has projected that Ireland will exceed legally binding emissions-reduction targets at national level (under the first two carbon budgets), and the targets set under the EU Effort Sharing Regulation, by a significant margin. 

‘Staggering’ compliance costs 

Both the EPA and the Climate Change Advisory Council are critical of Ireland’s efforts to reduce emissions, pointing to the fact that the Government knows what needs to be done, but faces “an implementation challenge” risking “staggering” compliance costs, estimated in the region of €8 to €26 billion. 

Quite apart from compliance costs, Ireland is not immune to the effects of climate change itself. These include more extreme weather, with increased risk of flooding and impacts on critical infrastructure, food production, and water supplies. 

It also includes risk of potential changes to Atlantic current patterns, which could lead to temperatures in Ireland plummeting by up to 15 degrees and sea levels rising even faster than expected – by tens of centimetres. 

Failure to live within our climate budgets results in carrying over deficits to subsequent budgets, the effect of which is cumulative and sets Ireland on an unsustainable emissions trajectory. 

As argued by the applicants in the German Neubauer case, the faster we hurtle towards the cliff now, the harder the brakes will have to be hit later, risking an abrupt, forceful, and disorderly transition instead of a just one. 

Framework climate cases 

Given this level of both risk and failure, it is no surprise that we have seen a number of ‘framework’ climate cases before Irish courts, many of which are awaiting hearing or decision. 

In Climate Case Ireland, which was instituted and heard prior to the 2021 amendments to the Climate Action and Low Carbon Development Act 2015, the Supreme Court quashed the first national climate plan on the basis that it lacked sufficient specificity on how Ireland would meet its 2050 target. 

The impact of the judgment has since been seen internationally in favourable climate judgments from Germany’s highest court and from the High Court of England and Wales – both of which relied on the Supreme Court’s reasoning. 

In July 2021, significant amendments were made to the Climate Act 2015, partly in response to Climate Case Ireland, and there are currently four judicial-review actions claiming that the Irish Government has not lived up to its obligations under the Climate Act, as amended in 2021. 

These include three actions taken by Friends of the Irish Environment (FIE) arguing, respectively, that the sectoral emissions ceilings, the Long Term Climate Strategy, and the 2023 Climate Action Plan do not comply with the State’s obligations under the Climate Act. 

The latter case was unsuccessful in the High Court and is currently under appeal, with judgment expected shortly. 

A further judicial review action is being brought by Community Law and Mediation (CLM) and others challenging the Climate Action Plan 2024 (CAP24), alleging it is in breach of the Climate Act. 

In addition, the applicants argue that CAP24 violates the fundamental rights of the three individual applicants, marginalised groups that CLM works with, and future generations, under the Constitution of Ireland, the ECHR and the EU Charter of Fundamental Rights. 

The case is set down for a modularised hearing in the High Court in January. 

‘Climate-adjacent’ cases 

In addition to these cases, there have been a number of ‘climate-adjacent’ cases concerning section 15 of the Climate Act, which provides that “a relevant body shall, insofar as practicable, perform its functions in a manner consistent with” climate policies and objectives. 

While there is an “as far as practicable” caveat, this section was strengthened by the 2021 amendments from being a duty to “have regard to”, to a duty to “perform functions in a manner consistent with”. 

Section 15 was first tested in October 2022, when An Bórd Pleanála conceded judicial-review proceedings taken by FIE, challenging the approval it granted for the Galway Ring Road. 

FIE argued that the board had not considered the Climate Act and the associated 2021 Climate Action Plan, in accordance with section 15 of the act. 

In the Coolglass Wind Farm case, the applicant challenged An Bórd Pleanála’s refusal of planning permission for a wind farm, arguing that the board failed to comply with its obligations under section 15. 

In January, the High Court agreed, holding that the board had failed to act “consistently insofar as practicable with the goals and policies” contained in the Climate Act and that the board ought to have exercised its discretion to materially contravene the development plan in light of its section 15 obligations, unless it was not practicable for it to do so. 

Planetary survival 

The High Court stated that “rapid, far-reaching and unprecedented changes to all aspects of society and the economy” and “an immediate end to business as usual” by consenting authorities is required to cut greenhouse-gas emissions and ensure planetary survival, and that repeated refusals of proposed windfarm developments were “sabotaging” Ireland’s compliance with its climate commitments. 

It held that the interpretative obligation arising under EU law requires the national courts to interpret section 15 and apply EU law in a way that ensures, insofar as possible, an outcome consistent with EU climate objectives. 

It further held that article 8 of the ECHR imposes a positive obligation on the State to put in place a legislative and administrative framework with respect to climate change, to provide for the protection of human health and life, and to apply that framework in an effective and timely manner. 

The decision is under appeal to the Supreme Court, with judgment expected soon. 

A very recent High Court decision, involving a challenge by Friends of Killymooney Lough to the grant of planning permission for a Tesco-led retail development, offers a glimpse into the direction of travel we might see in the courts, with large-scale projects likely facing increasingly rigorous scrutiny of their climate impacts. 

Humphreys J refused leave to appeal, finding that none of the section-15 climate points were properly pleaded or argued during the original proceedings. 

However, the judge went on to say that, subject to any clarifications provided in relation to section 15 in the Coolglass appeal, “there appear to be three essential steps involved in assessing a project that causes emissions”. 

These include: 

1) Quantifying net GHGs attributable to the project, including Scope 3 emissions, mitigation, and offsets, compared with a baseline scenario, 

2) Determining if net emissions fit within available national and sectoral headroom under climatepolicy instruments, and 

3) If emissions exceed available headroom, assessing whether non-compliance is justified by practical considerations (for example, energy security). 

The development of ‘framework’ and ‘climate-adjacent’ litigation in the Irish courts mirrors a broader global trend that harnesses the power of law to hold governments and institutions accountable for climate commitments. 

The role of litigation in affecting “the outcome and ambition of climate governance” has been recognised by the IPCC itself, and there are many examples of the direct impacts of litigation or even threatened litigation, including in Climate Case Ireland. 

While we await the outcome of a number of climate cases before the Irish courts, it is clear that, as the situation becomes more urgent, we will see more litigation seeking novel routes to enforce climate obligations. 

Litigating for climate change, as the Taoiseach describes it, is no substitute for political leadership on climate change, but successive failures to take action at the scale and pace required have made litigation a key mechanism for securing climate action and ensuring accountability. 

Rose Wall is a solicitor and consultant specialising in environmental justice.

LOOK IT UP 

CASES:

• CLM & Ors v Minister for Environment [2024/76 JR]
• Coolglass Wind Farm Limited v An Bórd Pleanála [2025] IEHC 1
• FIE v Minister for Environment [2025] IEHC 61
• Friends of Killymooney Lough v An Coimisiún Pleanála & Ors (No 2) [2025] IEHC 576
• Friends of the Earth Ltd & Ors v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841
• Friends of the Irish Environment v Government of Ireland & Ors [2020] IESC 49
• Inter‑American Court of Human Rights’ Advisory Opinion on the Climate Emergency and Human Rights (3 July 2025)
• International Court of Justice Advisory Opinion on Climate Change (23 July 2025)
• Neubauer et al v Germany, Federal Constitutional Court of Germany (BvR 2656/18 [2021])
• Verein KlimaSeniorinnen Schweiz and Others v Switzerland (53600/20)