‘Dangerous territory’ of second fiddle to ECHR

In their assessment of international developments in climate litigation, Dr Andrew Jackson and Dr Orla Kelleher discussed the implications of the KlimaSeniorinnen case at this year’s Law Society Environmental and Planning Law Committee conference (13 November).

In this judgment, the ECtHR ruled that states had a human-rights obligation to take adequate measures to combat climate change.

This case was also referenced by Mr Justice Humphreys in the Coolglass judgment, on which the Supreme Court is expected to rule in December.

Jackson and Kelleher cited a recent article they have co-authored in the Irish Planning and Environmental Law Journal (‘The implications of the European Court of Human Rights’ climate rulings for climate litigation in Ireland: a new legal reality’, available through Westlaw Ireland).

This article argues that the KlimaSeniorinnen judgment requires states to quantify a fair-share 1.5°C-aligned carbon budget.

As such, they said, the ruling had implications for ongoing carbon budget deliberations and consequences where countries exceeded their carbon fair share. 

Citing Fox v Minister for Justice, the speakers also raised the question of whether, in a climate context, constitutional rights such as:

• The right to life,
• The right to bodily integrity,
• The right to protection of the person, and
• The inviolability of the dwelling place,

could be considered substantially the same as articles 2 and 8 of the ECHR.

“And if not,” Kelleher said, “do we end up straying into a kind of dangerous territory where the Constitution starts to play second fiddle to the European Convention as a source of rights protection?” 

Enforcement strategy

Dr Tom Ryan of the EPA explained that its enforcement strategy focused on the 50-hectare-and-above harvesting operations that required planning permission and licences under the amended 1992 EPA Act. 

Illegal peat harvesting is valued at €30 million, mostly for export, which Dr Ryan said was “destroying an irreplaceable cultural and scientific resource”.

He added, however, that enforcement was “challenging”.

Risk of weakening 

Fintan Valentine SC noted the decrease in enforcement cases, and said that “a system without enforcement is a system that is at risk of weakening”.

The SC added that this was especially true in a time of pressure and cited a judgment by Mr Justice Nolan in Phelan Walsh v An Bord Pleanála as an example of a recent increase in judicial reviews in relation to rural housing.

Valentine quoted section 1537 of the Planning and Development Act 2000, which outlines enforcement proceedings “unless there are compelling reasons for not doing so”.

The exception is replicated in section 348, 7d of the Planning and Development Act 2024, not yet commenced, and Valentine described it as an area that needed exploration.

“One issue that has come across my desk relatively recently is the question of could the climate emergency be a compelling reason not to enforce?”

Dr Alison Hardiman (small picture) discussed the tension between environmental protection and climate mitigation.

Focusing on the Birds Directive and the 2024 EU Commission guidance on the Renewable Energy Directive, she highlighted the challenges in balancing renewable energy projects with environmental laws, citing the Voore Mets case and the need for clearer legal frameworks.

Legal uncertainty

Mark Thuillier (Arthur Cox) highlighted that the RED III Regulations created a rigid binary at the completeness check stage: an application is either complete or it is not, with no scope to remedy minor omissions.

Unlike article 16(2) RED III, which envisages a prompt request for missing information, section 37JA forces applicants back to square one, even after minor omissions are sought to be rectified by developers within the 45-day window.

He warned that this, married with the limited request for further information, risked frustrating the core aim of facilitating the acceleration of renewables.

Carve-out

He also explained that article 16b(2) RED III provided a crucial carve-out for renewable projects: if necessary mitigation measures are in place, incidental harm to protected species is not deemed ‘deliberate’.

This has not been transposed into the Irish implementing regulations.

He noted that, until transposed, developers remained exposed to legal challenge from the Voore Mets judgment if they did not seek a derogation licence.

This is likely to cause further delays. 

Some of these issues were responded to in the presentation from Una Crosse of An Coimisiún Pleanála, who explained how RED III implementation will work in the commission – including the new completeness check.

• Keep reading Gazette.ie for further upcoming coverage of the Law Society Environmental and Planning Law conference 2025