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An inconvenient truth

An inconvenient truth

The onward march of climate litigation



Climate litigation is offering citizens and activist groups a real opportunity to hold governments to account on climate-action obligations. Rose Wall and Gabhan O Tighearnaigh investigate how the same pressure could be applied to Ireland.

Under the Climate Action and Low Carbon Development (Amendment) Act 2021, Ireland is on a legally binding path to net zero emissions no later than 2050, and a 51% reduction in emissions (compared with 2018 levels) by the end of this decade.

However, Ireland has consistently underachieved on climate action, and ranks among the worst performing countries in Europe. This under-performance has been increasingly called out by environmental NGOs, as well as grassroots and youth-led movements.

An inconvenient truth

An inconvenient truth

Around the world, the number of ‘strategic’ climate litigation cases is dramatically on the rise. A recent paper by Alex White SC concluded that the majority of climate cases taken against governments in Europe have led to outcomes resulting in greater climate regulation.

The most obvious Irish example is the Supreme Court’s landmark judgment in Friends of the Irish Environment v Government of Ireland, which quashed the 2017 National Mitigation Plan.

This case shows that climate litigation represents a real opportunity for citizens and activist groups to lead public scrutiny of governments and ensure accountability on climate action matters.

Hard rain

Two possible avenues to climate litigation are (a) that Government is not meeting obligations set out in national law, or (b) that such obligations are inadequate.

In relation to the first avenue, the Supreme Court found in Friends of the Irish Environment that the Government’s 2017 National Mitigation Plan (developed pursuant to section 4 of the Climate Action and Low-Carbon Development Act 2015) was ultra vires that legislation because it lacked “specificity”.

The judgment was clear that mitigation measures must be “realistic”, “effective”, “appropriate”, and readily available within the short-term.

The judgment illustrates the court’s willingness to intervene in circumstances where the State falls short of its statutory obligations to reduce emissions within the short-term and in the medium to long-term.

The Supreme Court’s judgment further confirmed that it is indeed the role of courts to inquire into climate policy and assess its adequacy, and that it is not just the prerogative of the Dáil.

Other courts around Europe have made similar rulings. In the 2021 case Commune de Grande-Synthe v France, the municipality of Grande-Synthe sued the French government for insufficient action on climate change.

The Conseil d’Etat, the highest administrative court in France, held that the emission decreases from 2018-2020 were not enough to meet the objectives set out in the Low Carbon National Strategy, which contains the government’s five-year reduction targets and has force of law.

Hence, the court ordered the French government to take “all necessary measures” by 31 March 2022 to ensure France’s compliance with its own emissions-reduction targets.

The second avenue for climate litigation is to argue that the State’s legal obligations are insufficient for the goal of reducing emissions. In the Netherlands, an environmental group (the Urgenda Foundation), together with 900 citizens of The Netherlands, sued the Dutch government to require it to do more to prevent global climate change.

The country’s supreme court ordered The Netherlands to limit emissions to 25% below 1990 levels by 2020, finding the government’s existing pledge to reduce emissions by 17% insufficient to meet UN global targets.

The court also accepted that some of the obligations owed were grounded in human rights – a growing feature of litigation globally.

In the recent Neubauer case before the German Federal Constitutional Court, the federal government was ordered to reconsider emissions’ reduction targets for the period after 2030.

The previous climate legislation had not addressed targets beyond the current decade, and this was viewed by the court as a rights violation of the youth plaintiffs, as it offloaded emissions reduction onto future generations.

This landmark judgment is indicative of an ever-expanding body of litigation, globally, that seeks to challenge governments when existing laws are deemed inadequate to address climate change.

The wave

In Ireland, it will be interesting to see if the Climate Action and Low Carbon Development (Amendment) Act 2021 creates an opportunity for increased scrutiny of State bodies – and whether they are implementing agreed climate policy.

Section 17 of the act amends section 15 of the principal act, and requires relevant bodies (which includes public and prescribed bodies as defined by the Freedom of Information Act) to, “insofar as practicable” perform their functions in a manner consistent with:

  • The most recent approved climate action plan,
  • National long-term climate strategy,
  • National adaptation framework,
  • The furtherance of the national climate objective, and
  • The objective of mitigating greenhouse-gas emissions and adapting to the effects of climate change.

However, the introduction of section 2A into the amended legislation is clearly an attempt to limit the legal remedies available for damage caused by breaches of the act. This provision states: “For the avoidance of doubt, no remedy or relief by way of damages or compensation is available with respect to or arising out of any failure, of whatever kind, to comply with any provision of this act or any obligation or duty created thereunder.”

This provision is not only wholly contrary to the principles of climate justice, but it is also potentially unlawful. Section 3 of the European Convention on Human Rights Act 2003 provides for damages to be recoverable for infringements of human rights.

By excluding this possibility, Ireland is failing to provide an effective remedy under article 13 of the ECHR and article 9(4) of the Aarhus Convention.

Deep impact

There are several other avenues to litigation for those looking to challenge decisions with environmental impacts. Planning appeals are an increasingly prevalent form of environmental litigation, with challenges being submitted against developments likely to generate significant greenhouse-gas emissions or adversely affect the local environment through pollution or habitat destruction.

In Ireland, the availability of judicial review in planning and other environmental matters ensures procedural fairness for applicants looking to hold decision-makers to account. As part of the implementation of the Aarhus Convention in Ireland, section 50B of the Planning and Development Act 2000 (PDA) and the Environment (Miscellaneous Provisions) Act 2011 (EMPA) set out special costs rules, which seek to minimise costs associated with qualifying environmental cases.

An example of a successful challenge was a recent case brought by Friends of the Irish Environment relating to State regulations that allowed industrial extraction from peat bogs without planning permission.

Extraction was, instead, to be licenced by the Environmental Protection Agency, with the lengthy transitional period before the licensing regime commenced meaning that peat extraction could continue during that time without either planning permission or licence. It was held that these ministerial regulations should be set aside, as they were inconsistent with EU directives on environmental impact assessment and the Habitats Directive.

Similar challenges could be taken against developments with potential adverse impacts on the local environment, and for national climate goals.

Twister

Other types of environmental cases taken elsewhere have included actions relating to breaches of EU directives on air pollution. In early 2021, a Brussels court ruled that the Brussels regional government breached EU law by failing to correctly monitor and protect the health of its citizens against harmful levels of air pollution.

In another case before the CJEU, the environmental group Client Earth successfully brought a case against Britain’s Secretary of State for the Environment on the grounds that 16 zones across Britain had failed to meet the limit values laid down in the EU ambient air-quality directive.

Unfortunately, there are many barriers to accessing the courts in environmental matters. Actions that do not fall within the special costs rules in the PDA 2000 and EMPA 2011 carry significant financial risk. Although article 9 of the Aarhus Convention states that judicial proceedings in environmental disputes should not be “prohibitively expensive”, this term was not defined in the convention, nor does it require the provision of legal aid.

In Ireland, legal aid is, in reality, not available in environmental matters and, in any event, only available to natural rather than legal persons (environmental NGOs). A decision to this effect is currently under appeal.

Shockwave

There is a serious threat to access to justice in environmental matters in the form of the Housing and Planning and Development Bill 2019, currently undergoing pre-legislative scrutiny. If enacted, its provisions (which introduce significant changes to current costs and standing rules) will pose a serious threat to environmental democracy and citizens’ access to justice rights, and will significantly restrict Irish environmental NGOs and lay litigants from challenging planning decisions in the courts.

This is in contrast to a recent report produced by Cliona Kimber SC and other members of the Climate Bar Association in relation to the need for a specialised environmental court.

While the Programme for Government commits to the establishment of such a court, along the lines of the Commercial Court, the report of the Climate Bar Association draws on the approach of the Land and Environment Court in New South Wales and proposes a specialised court that would be “more than a fast-track planning court accessible only to the well-resourced” and would provide for broad access to justice, to include broad rules of standing and a limitation on costs.

Litigation is an important tool in holding the Government and other bodies accountable to their legal obligations and ensuring that the Dáil-declared “climate and biodiversity emergency” is treated with the urgency it requires – particularly in the context of successive failures of Government. It is therefore critical that access to justice is strengthened rather than restricted.

Look it up

CASES:

LEGISLATION:

LITERATURE:

Rose Wall is the CEO of Community Law and Mediation, which launched the Centre for Environmental Justice in 2021, and a member of the Law Society’s Human Rights and Equality Committee. Gabhan O’Tighearnaigh is a TCD law graduate undertaking a six-month internship with CLM.

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