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Environmental rights ‘vital, but no panacea’

A report has found that embedding environmental rights in the Constitution, while not a panacea, would be a crucial part of a wider effort to ensure that Ireland meets its environmental obligations.

Ireland currently has no express constitutional environmental rights – a Citizens’ Assembly on Biodiversity Loss recommended a referendum on the issue in 2023, while a subsequent Joint Oireachtas Committee report accepted the recommendation in principle.

The research, commissioned by Community Law and Mediation’s Centre for Environmental Justice and funded by the Lifes2Good Foundation, was carried out by Dr Orla Kelleher and Dr Mary Dobbs of the School of Law and Criminology at Maynooth University.

Accountability tool

It finds that a key advantage of explicit constitutional environmental rights is their potential as a legal accountability tool.

The report adds, however, that such rights should not become a “distraction”, nor be used a ‘window-dressing reform’.

It points out that environmental protections and safeguards within existing legislation already deliver on environmental rights “to varying degrees”, while some rights already exist in the European Convention on Human Rights, the EU’s Charter on Fundamental Rights, and the Constitution.

“There is a clear need to use the existing tools more widely, as well as for the State to implement and enforce existing environmental laws fully,” the report states.

Symbolic

It adds, however, that, even with a relatively broad interpretation of existing rights, stand-alone constitutional environmental rights would still be significant.

Environmental rights can be both symbolic and enforceable norms, it argues.

“The former can help inspire, inform, and justify ambitious environmental laws and policies, as well as being a political reference point where backsliding might otherwise occur.

“The latter can provide significant legal protections, providing a means for challenging and enforcing rights before the courts.”

Acknowledging that the costs of realising environmental rights could be “extensive”, the report adds that the cost of inaction on climate “is increasingly understood to be greater”.

Enforcing existing laws

“Our report highlights that recognising environmental rights in the Irish Constitution can strengthen accountability and progress environmental justice,” said Dr Dobbs.

She added, however, that there must also be a broader commitment to the enforcement of existing laws and policies, public participation in environmental decision-making, and joined-up policymaking.

“Our research has found that the protection of environmental rights can provide stronger protections for nature, public health, and future generations. As environmental threats escalate, so too must our legal response,” said Dr Kelleher.

The report’s recommendations for policymakers include:

• A “clear political commitment” recognising the fundamental nature of substantive and procedural environmental rights,
• Review, amend, and consolidate existing environmental legislation,
• Ensure the full enforcement of existing environmental laws,
• Embed substantive and procedural environmental rights and duties expressly within the legal system – including in the Constitution and complementary implementing legislation,
• Engage in public education in relation to environmental rights, and
• Undertake a referendum campaign that learns from the previous experiences of successful referenda in Ireland.