Debate over life, laws and ladders as climate case goes to Supreme Court
:: Activists claim Government is breaching its responsibilities
THE State’s plan for reducing carbon emissions is a “ladder without bottom rungs”, the Supreme Court has heard.
And the description came from one of the judges of the country’s top court no less.
But Judge John MacMenamin wasn’t showing his colours mid-hearing, he was merely trying to get to grips with the points of difference between the Government and the environmentalists when the two sides appear to have more in agreement than in dispute.
“We are all grasping for a metaphor,” he said, wondering if the main point of contention could be described as follows: “The State is saying it has built a ladder but you are saying the ladder has no bottom rungs.”
Barrister Eoin McCullough, who represents Friends of the Irish Environment (FIE), the NGO behind the legal challenge, agreed the description was a useful one.
The ‘ladder’ in question is the 2017 National Mitigation Plan, which was drawn up to tackle carbon emissions but which FIE argues lacks sufficiently ambitious targets or strong enough actions to do the job.
At the top, the ladder, to continue the analogy, reaches the point where Ireland achieves a dramatic reduction in emissions but there’s no way of climbing the ladder without a solid start – the bottom rungs.
The National Mitigation Plan remains the only statutory plan for carbon reduction, although it has been largely overtaken by the 2019 Climate Action Plan, which has also been criticised for lacking ambition.
FIE argues that the lack of an appropriate plan breaches the responsibilities that fall to the Government under the Climate Act 2015.
In addition, by failing to protect the population and environment from climate breakdown, the group says the Government is also breaching domestic and international human rights law.
Over four days early last year, the High Court heard round one of the case but ruled against FIE in the autumn.
In rejecting the group’s challenge, Judge Michael McGrath ruled that the court should be slow to judge government policy as it must respect the principle of separation of powers.
He also said the group had failed to prove breaches of human rights, and he accepted the Government’s argument that the plan was a living document and part of a suite of policy papers that would cumulatively amount to climate action.
Some 20,000 people signed up to support FIE’s challenge and during that hearing, it appeared at times as if all of them were trying to get into the courtroom.
Every seat was taken, every wall was lined and every inch of floor space was used for standing, kneeling, and in the case of the toddlers present, crawling.
The current appeal proceedings are taking place in very different circumstances. The Supreme Court rarely uses seven judges and its own chambers could not accommodate social distancing so the hearing is located in the dining hall of King’s Inns law school.
It can fit only 35 people, including the judges. Opening the case, Mr McCullough reiterated the point that there was no dispute between the group and the Government on the science of climate change or that it represented the single biggest threat to humanity.
That science tells us the world must cut climate emissions by at least 7pc to 8pc a year with immediate effect to slow temperature rise and avoid the worst effects of climate change.
But while the Government was relying on the cumulative effect of its various plans to make an impact, Mr McCullough said the immediate plans were as vital as what would follow.
The cumulative effect he was worried about, he indicated, was the ratcheting up of temperature rise and climate breakdown. “Nobody can refreeze the ice sheets and nobody will get the water level back down,” he said.
Much of the legal argument centred on the claims to breach of human rights under the Constitution and European and international conventions.
FIE argues that in standing by the National Mitigation Plan, which allowed for the continued growth of emissions, the Government was risking people’s lives and their right to a healthy environment.
Mr McCullough reminded the court that the Environmental Protection Agency and the Climate Action Advisory Council had both expressed concern about the direction Irish emissions were going, the latter declaring in mid2018 that the country was “completely off course” and the projections for future emissions were “disturbing”.
However, Chief Justice Frank Clarke wondered whether if the court was to accept this amounted to breach of human rights, then any government policy, such as how much and in what way to spend the health budget, could be considered a breach of the right to life of some individuals.
Meanwhile, Judge Donal O’Donnell asked whether any policy could be in breach of the Constitution if it hadn’t been carried out.
“If the State were to adopt a plan saying bring back capital punishment, has anybody’s rights been breached? It’s only policy,” he said.
FIE argues the opposite – that the problem with the policy is that nothing has happened and that we are all condemned as a result.
The hearing continues today.