Clifford Chance

In an important decision concerning the interplay between climate policy and law, Ireland's Supreme Court has ruled unanimously that the Irish Government's national climate plan fails adequately to specify credible measures to comply with Ireland's national and international climate obligations.

Background

This case concerned a challenge brought by the NGO, Friends of the Irish Environment ("FIE").

In July 2017, Ireland published its National Mitigation Plan, setting out the country's strategy to tackle climate change under the Climate Action and Low Carbon Development Act, 2015 (the "Climate Act 2015"). The Plan aims to enable the State to pursue and achieve the transition "to a low carbon climate resilient and environmentally sustainable economy by the end of 2050."

Whilst committing to achieving a net zero carbon emissions target by 2050, FIE sought to challenge the Plan because it provides for an initial increase (rather than a decrease) in emissions. They argued that this was inadequate because global heating will depend not only on whether zero net emissions have been achieved by 2050, but also on the way in which the pattern of emission reduction develops in the intervening years, and the effect of tipping points.

The decision

FIE argued that the Plan (i) did not comply with the requirements of the Climate Act, and (ii) violated rights under both the Irish Constitution and the European Convention on Human Rights ("ECHR").

Compliance with the law

The Supreme Court accepted FIE's procedural arguments (see the Judgment here).

Under the Climate Act 2015, the Government is required to specify how it is going to realise its objectives by 2050. Accordingly, the Supreme Court determined that the Plan was subject to review by the Irish courts - "whether the plan does what it says on the statutory tin is a matter of law and clearly justiciable."

The Court held that the Plan must reach "the level of specificity" sufficient "to inform the views of the reasonable and interested member of the public as to whether that policy is considered to be effective and appropriate." In this regard, the Court found that the Plan fell "a long way short of the sort of specificity which the statute requires". In emphasising the need for participation, transparency and accountability, the Court noted that significant parts of the policies in the Plan were "excessively vague or aspirational". The Irish Government could not simply set long-term commitments without showing how they would be met in the short term.

The Court did not state what the Plan had to contain; stating only that further specification was required to meet the Climate Act’s requirements.

FIE's substantive arguments were less successful.

Constitutional and Human Rights

In Urgenda (see our briefing here), the Dutch Supreme Court emphasised a State's positive duty of care to protect its citizens against the "real and immediate" risks of climate change.

FIE relied significantly on the findings in Urgenda arguing that the Plan infringed Articles 2 (right to life) and 8 (right to respect for private and family life) of the ECHR. In particular, FIE argued that citizens enjoyed a right to a healthy environment, and that this right was not being protected by the Plan, which they claimed was insufficient to combat climate change. The Supreme Court rejected this argument, seemingly rowing back from comments made by the Irish High Court in the Fingal case, which indicated that an environmental right could potentially be interpreted into the Irish Constitution. The Supreme Court was not persuaded that there was a right to a healthy environment as a matter of Irish law. Such a right is "either superfluous (if it does not extend beyond the right to life and the right to bodily integrity) or is excessively vague and ill-defined (if it does go beyond those rights)."

In any event, the Court concluded that FIE, as a corporate entity, lacked standing to make arguments based on the right to life or the right to bodily integrity whether under the Constitution or under the ECHR. The Supreme Court did not exclude the possibility, however, for natural persons to make such arguments, acknowledging that, "in an appropriate case, it may well be that constitutional rights might play a role in environmental proceedings" and that "if an individual with standing to assert personal rights can establish that those rights have been breached in a particular way … then the Court can and must act to vindicate such rights and uphold the Constitution."

Human rights and environmental harm are inextricably linked

This case continues the increasing global trend amongst 'climate activists' to use human rights to bring climate actions; emphasising the inextricable links between the two.

The right to a healthy environment (and a corollary duty on the State to protect it) is enshrined in the national constitutions and laws of the majority of UN Member States (see our briefing here). These provisions are being used more frequently in cases against government bodies to address a perceived failure to implement measures to tackle the climate crisis.

Whilst the Supreme Court did not find favour with FIE's human rights arguments, the court placed significant emphasis on the strict requirement that the public are entitled to sufficient transparency to know and judge how the government intends to meet its climate objectives.

Implications for corporations and businesses

In the longer term, those impacted by this increased activism are unlikely to be limited to governmental bodies. Growing pressure from climate change actions against States, and the adverse publicity they attract, is forcing States to reconsider their public commitments to address climate change, and how exactly they propose to meet their objectives in line with the timeframes in their policy statements.

Domestic judicial pressure on individual States to provide specific, verifiable, trajectories and quantifiable milestones for greenhouse gas reduction is likely to lead to higher emissions standards for businesses, legislation prohibiting certain activities and increased ESG compliance obligations.

Such regulation/legislation could take a number of forms such as increased carbon tariffs and targets or subsidies and incentives for renewable forms of energy.

Governments have already started to use regulation and legislation to increase scrutiny of corporate supply chains. In a number of EU countries, building on regulation in the timber sector and regulation regarding minerals from conflict affected areas, legislation has taken the form of reporting and due diligence-type obligations on corporate supply chains to tackle a range of non-financial issues including modern slavery, diversity, and the environment.

This focus on due diligence has continued at an EU level. The EU has recently enacted the EU Taxonomy Regulation which requires businesses to implement business and human rights frameworks in order to qualify as 'environmentally sustainable' and has announced plans for mandatory due diligence on both human rights and environmental impacts in 2021.

It may well be that governments will use reporting and due diligence requirements specifically to drive corporate action on mitigating the environmental and human rights related impacts of climate change. Whatever the form any such new requirements may take, businesses already adapted to considering the human rights and environmental impacts of their operations will be best placed to meet such new regulatory approaches.