In Friends of the Irish Environment CLG v The Government of Ireland & Ors (2020) IESC 49 (FIE v Ireland), the Supreme Court of Ireland considered whether the Irish Government’s statutory plan for tackling climate change (the Plan), adopted under the Climate Action and Low Carbon Development Act, 2015 (the Act), was unlawful and/or constituted a breach of rights. Significantly, the Court unanimously found that the Plan was unlawful, and, while it did not find that the Plan constituted a breach of rights, it left the door open for rights-based claims for future litigants in the climate change context.

The issue of legality – compliance with prevailing statutory obligations

The Court agreed with the plaintiff's submission that the Plan did not comply with the requirements set out in the Act, and was consequently ultra vires. The Act required the Plan to specify the manner in which Ireland’s transition to a low carbon economy by 2050 would be achieved. The Court accepted that the Act required that a plan must be sufficiently specific to enable a reasonable and interested person to form a judgement about whether it was realistic and whether they agreed with the policy options specified. It also required both public participation in the adoption of a plan, and transparency as to the formal government policy for achieving the transition by 2050. As such, to comply with the Act, the Plan was required to be sufficiently specific for the whole transition period up to 2050. Contrary to these requirements, their Honours found that the Plan was ‘excessively vague or aspirational’ in parts, and fell ‘well short of the level of specificity required to provide that transparency and to comply with the provisions of the 2015 Act’. On this basis, the Court held that the Plan was ultra vires, and ordered that it be quashed.

The issue of human rights

The plaintiff also argued that the Plan was inconsistent with rights guaranteed under the Constitution and the European Convention on Human Rights (ECHR), including what was submitted to be an unenumerated or derived right to a healthy environment under the Constitution. The Court rejected the plaintiff’s rights-based submissions on several grounds, including for want of standing as the plaintiff was a corporate entity, and because the right to a healthy environment as formulated was ‘either superfluous or lacking in precision’ and could not be derived from the Constitution. However, despite these findings in this case, the Court explicitly left the door open to future claims using human rights levers. In particular, their Honours stated that they ‘[did] not rule out the possibility that the interplay of existing constitutional rights with the constitutional values to be found in the constitutional text and other provisions…might give rise to specific obligations on the part of the State in particular circumstances.’

Relevance for Australian government entities

Four core insights can be drawn for Australian government entities from the FIE v Ireland case:

• Compliance with procedure may be justiciable even where policy substance is not - The Irish Supreme Court was not being called upon to consider the adequacy (or otherwise) of Ireland's Nationally Determined Contribution – i.e.. the country's emissions reduction pledge in pursuit of Paris Agreement targets to limit global warming to well below 2°C above pre-industrial averages. Accordingly, the case should not be looked upon as a precedent upon which litigants may seek to challenge the adequacy of Australia's own Paris Agreement emissions reduction pledge (which currently stand at 26-28% reduction by 2030, as against 2005 emissions levels).
• Robust procedural frameworks are critical to minimise the risk of challenge to administrative decisions - The case does, however, starkly illustrate the potential for challenge to government actions that do not strictly observe the statutory scaffolding in place to enable the discharge of those commitments. In doing so, it is important to ensure compliance with both the procedural architecture relevant to the administration of emissions reduction targets, and to ensure that guidance exists to facilitate a robust and considered approach to climate-related relevant considerations across all government decision-making and discretionary functions. The importance of the latter has been starkly illustrated in a recent line of claims against UK and EU governments in relation to infrastructure development approvals – from roads to airports - in which claimants appealed the validity of approvals given without adequate consideration of jurisdictional policies to pursue net zero emissions by 2050.

• Human rights at State level - Whilst, federally, Australia does not have a Constitutional framework of human rights, the Court’s response to the human rights aspects of the claim will also be of interest to those States with specific human rights legislation. For example, the Human Rights Act 2019 (Qld), which commenced on 1 January 2020, explicitly provides that government decision-making can be challenged on human rights grounds, and may equip concerned prospective litigants with the tools to challenge inadequate climate change action using human rights levers. Such claims are far from hypothetical, as illustrated by objections lodged with the Queensland Land Court against the approval of the Waratah coal mine in the Galilee Basin by two NGO's, Youth Verdict and the Brimblebox Alliance.

• Not binding, but persuasive - Decisions of Irish courts do not, of course, represent binding precedents in Australia. However, as a decision of the highest judicial authority in a common law jurisdiction, the decision in FIE v Ireland may have persuasive significance. At a minimum, the case provides a thought-provoking illustration of the breadth of 'novel' claims that may be developed by strategic litigants in seeking to compel government to increase their attention to, or ambition on, climate change-related risks.

Recommended next steps

In light of the Irish Supreme Court's decision, we suggest that Australian government entities should prioritise a review of prevailing approaches to climate change risk administration to assess the vulnerability of their approach to similar challenge. This includes ensuring that both:

• robust frameworks are in place to administer climate change programs and targets in the manner required by statute; and, more broadly
• all government decision-making entities understand, and have guidance that enables them to robustly and consistently apply, climate-related considerations that may be relevant to the discharge of their remit. Governments should ensure that they have considered the nature and content of the obligation to consider climate change across government decision making and discretionary functions, to guard against potential administrative challenge. Specific consideration should be given to the interplay between climate-related exposures and human rights in those jurisdictions with specific rights laws (including Queensland and Victoria).