Taking your government to court may be for only the very brave or foolhardy, but almost three years ago a group of citizens in the Netherlands decided to do just that when they initiated proceedings against the Dutch government for its lack of effective action on climate change. In June last year the Urgenda Foundation and almost 900 coplaintiffs won their case, compelling the Dutch government to adopt more stringent climate policies – the first time, the campaigners said, that a court had ruled that a state must take precautions against global warming.
Although, not unexpectedly, the Dutch government is appealing the judgment, it has confirmed its promise to work towards cutting its emissions by 25 per cent by 2020, compared with 1990 levels, as the court required.
“This case has been acknowledged as groundbreaking, and it captured the imaginations of nongovernmental organisations and citizens’-rights groups across the world,” says Dr Áine Ryall, who teaches environmental law at University College Cork. “It got people thinking that litigation is one way of forcing governments to act on climate change.”
Protect natural resources
In the US the group Our Children’s Trust is planning to bring federal, state and local
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to force administrations to act more strongly.
Those cases are grounded in the doctrine of public trust, according to which the government has a duty to protect the natural resources that are essential for collective survival and prosperity. The actions will demand that the US government recognise and protect the collective right to a stable, livable climate.
In April last year an international group of legal experts published the Oslo Principles on Global Climate Change Obligations; they argued that tort law and human-rights law already make states accountable for their emissions of greenhouse gases.
Here, the Government’s Climate Action and Low Carbon Development Act was criticised last year for not specifying targets to reducing greenhouse-gas emissions in Ireland; in addition, the last National Greenhouse Gases Mitigation Plan expired in 2012.
So how do Irish environmentalists believe they can tackle the Government’s lack of clarity about reducing greenhouse gases from our transport, power, building and agriculture?
Human rights
Attracta Ui Bhroin of the
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, which is made up of more than 30 NGOs, believes that the
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, which Ireland ratified in 2012, bolsters citizens’ right to a healthy environment.
The convention recognises the rights to access information about the environment, to participate in environmental decision-making and to review environmental decisions in a timely, affordable way.
The issue of cost is most important, according to Ui Bhroin. “Going to court is an extremely traumatic experience and a huge undertaking in terms of resources. It is hugely expensive in Ireland, whereas the costs in the Urgenda case, which were awarded against the government, were €13,500.”
The Irish Government recently acknowledged the issue of cost, at least partly, by introducing an “own costs rule”, under which each side pays its own costs in court cases about environmental issues; if litigants are successful in some of their arguments, they may be awarded their costs. “This is very welcome – but insufficient because it’s discretionary,” Ui Bhroin says.
The Government has also proposed to introduce a new Aarhus Bill, to clarify environmental-justice legislation as required under EU law and the Aarhus Convention.
A pending court case will test whether there will be a provision for limited costs in cases taken against the government for breaches of the EU habitats directive.
Ui Bhroin says that Irish citizens should be very cautious about taking a case against the Government on an environmental issue. “They would certainly need to take legal advice on what their costs might be before they consider it.”
Pro bono work
Charles Stanley-Smith of
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says the research involved in taking a legal case against the government is particularly onerous, as different departments and public bodies share responsibility for mitigating climate change. “You would need lawyers to work pro bono or have a very rich patron,” he says.
But the Aarhus Convention has helped. “The protection of costs provided by Aarhus has allowed us to take the judicial review of the peat-fired power plant in Edenderry, in Co Offaly,” says Stanley-Smith.
In October 2015 the High Court quashed Bord na Móna’s permission, granted by An Bord Pleanála, to extend until 2023 the life of the plant, which is also fuelled by biomass. The court said that the environmental impact of extracting peat for the plant hadn’t been assessed.
“By An Taisce addressing this in the Irish courts, and the Irish courts upholding EU law, this serves to reduce the massive reputational and cost risk to Ireland of action being taken against Ireland by the European Commission, given the breach of the EU law at issue,” says Stanley-Smith’s colleague Ian Lumley.
The High Court put a stay on the quashing order until April this year, to allow An Bord Pleanála to consider a second planning application by Offaly County Council; An Taisce and Friends of the Irish Environment have both appealed the application.
Áine Ryall of University College Cork, who was recently appointed to the Aarhus Convention Compliance Committee, sees climate justice as part of the wider environmental movement. "Climate marches provide a momentum to put pressure on politicians," she says. "Some argue that it is the role of the courts to enforce the law and not to implement policy. Yet the law can step in when the normal democratic process fails."
Irish legal action: crowd-funding a case
A Belgian-born woman living in Co Wicklow is seeking support for legal action against the Government over what she says is its slow action on climate change.
Mieke Vanfleteren, who lives in Newtownmountkennedy with her Irish partner and two children, says the Government should have an ambitious programme to make the transition to a fossil-fuel-free economy.
More than 400 people have joined Vanfleteren’s Facebook group, Climate Court Case Ireland, she has begun to crowd-fund the cost of bringing the case to court, and she is looking for a solicitor to take on the case.
Vanfleteren has been inspired by citizen campaigns in the Netherlands and Belgium, which she says “can urge the Government to take sufficient action to safeguard the habitability of Ireland for future generations”.
