Supreme Court Day 2!
Posted on: 25-06-2020
Tuesday was the second (and final) day of our Supreme Court hearing. The Court heard counter arguments to our appeal from the State, then Friends of the Irish Environment had 45 minutes to respond before proceedings ended. Further information and media coverage below.
We’ve been overwhelmed by the outpouring of support for our case – from Ireland and countries around the world. There may have only been a handful of us present in the King’s Inns, but you made us feel as though you were there with us in spirit. Thank you so much for the incredibly kind tweets, emails, and messages.
We’d also like to express our profound gratitude to the phenomenal legal eagles who worked tirelessly to make the magic happen (Climate Case Ireland is one of the only climate cases in the world to make it to the highest national court of law). Andrew Jackson, Orla Clarke, John Kenny, Eoin McCullough, and Brian Kennedy are legends. Their representation and advocacy for our fundamental rights has made us feel like winners irrespective of the outcome. 
The atmosphere of Tuesday’s proceedings
Also, check out this great little overview of the history of our case to date here – with great thanks to PreserveIreland! 
Senior Counsel for Friends of the Irish Environment, Eoin McCullough, opening the case for Friends of the Irish Environment
It will likely be some months before the judgment is ready – of course we will keep you posted. Keep an eye on our Twitter, Facebook and Instagram for online events over the coming months in the meantime!
Finally, a huge thanks to the climate movement in Ireland and around the world, and all those continuing to fight the good fight for climate justice. This case is for all of us!
Climate Case Ireland team
Media links:
Irish Independent: https://www.
Irish Times: https://www.irishtimes.
The Herald: https://www.herald.ie/
Summary of the day:
After hearing the arguments for our appeal on Monday, presented by Senior Counsel for Friends of the Irish Environment, Eoin McCullough, it was the State’s turn to respond. Senior Counsel for the State Eileen Barrington and Rory Mulcahy presented the following counter arguments:
- The case brought by Friends of the Irish Environment (FIE) demonstrates a misunderstanding of the National Mitigation Plan, said the State. It’s an attack on policy choices made by the Government and it is legally misconceived.
- FIE’s case refers to the need to have a Plan in place to give effect to the advice given in a 2007 IPCC report, the AR4 report. The case is described by FIE (in its written submissions) as being about the need to see emissions fall by 25 to 40% by 2020 (compared to 1990).
- Ireland has not breached any legally binding standard of either international or EU law. Although Ireland failed to reduce its emissions in accordance with EU targets, it is not in breach of EU law. The EU target for Ireland to achieve a 20% reduction in non-ETS emissions by 2020 (compared to 2005 levels) was misinformed, as the target wasn’t calculated or informed by cost-effectiveness. Ireland availed of flexibilities under EU law to purchase credits, and in this way would comply with its EU obligations
- Ireland has not breached any binding domestic obligation or indeed domestic policy. Ireland’s 2015 Climate Action and Low Carbon Development Act does not impose any interim obligations between now and 2050, other than to produce a National Mitigation Plan every five years.
- FIE argues that substantial emissions reductions are required in the short term to avoid breaches of fundamental rights – that is in truth a mandatory direction to the Executive, said the State.
- FIE has asked for relief based on what the State described as FIE’s “Prescribed Policy” which is focused on 2020. The Plan runs until 2022 and it is a plan that is the first step directed to a national policy aimed at 2050.
- The Plan has been built upon by parallel and consecutive measures, such as the Climate Action Plan 2019. The State’s response to climate change isn’t to be found in one document or at one point in time, it’s a complex and evolving network of interwoven policies.
- Climate change is a global challenge. It goes without saying, said the State, that Ireland’s emissions are a tiny proportion of the world’s emissions (0.13%).
- FIE’s agenda, said the State, is to ask the court to look at Urgenda and follow its reasoning there. The Urgenda approach doesn’t fit into the Irish constitutional framework at all. Dutch courts do not share the ‘Separation of Powers’ issue with Ireland, and can override national legislation where it conflicts with international law.
- FIE does not have an entitlement to challenge the Plan based on fundamental rights, said the State, and has furthermore failed to demonstrate that it is the Plan which causes a breach of Constitutional rights. There is nothing to evidence that the current Plan will cause flooding or sea-level rise.
- FIE should not enjoy standing (i.e. as an NGO, FIE should not have a right to bring this case in the public interest).
- There may be grounds for challenging a plan that has no regard to 2050, but the current Plan has 106 different actions and a rationale for where we are and where we’re going, and balances those objectives against cost-effectiveness, said the State.
- The Supreme Court cannot rule on this case given that the European Court of Human Rights has not yet ruled on a case relating to climate change.
- The Plan is ‘non justiciable’ – i.e., the Supreme Court should not assess its legality because it is a policy document that is not amenable to judicial review, argued the State.
Senior Counsel for Friends of the Irish Environment, Brian Kennedy, replied, with his remarks including:
- Ireland’s Climate Change Advisory Council in their 2018 Annual Review noted that Ireland will not reach its 2020 target and was also likely to miss its 2030 target by a substantial margin. This leaves Ireland in an unfortunate position whereby we are not on a path to decarbonization and the carbon budget could be blown entirely
- One cannot see from the National Mitigation Plan how Ireland’s National Transition Objective aimed at 2050 will be achieved.
- The argument that the Plan is a ‘living document’ should not preclude the Plan from legal challenge
- FIE is not looking for the court to prescribe a particular policy or plan to the government
- The Supreme Court is entitled to examine whether the Plan breaches fundamental rights under the European Convention on Human Rights without the European Court of Human Rights having specifically ruled on climate change
- FIE has a right to bring this case as an NGO that has been in existence for over twenty years and has litigated a significant number of cases.
- An individual plaintiff was not included in the case owing to the potential for significant costs-exposure.
- The differences between Urgenda and Climate Case Ireland are issues of procedure, rather than substance
- Ireland is obliged to play its part in addressing climate change, even if the problem is global in nature
- Since climate change is caused by cumulative emissions, each reduction in emissions has a positive effect.