Analysis: the action against the Government is one of over 2,300 climate-related legal cases worldwide and may have important consequences
Summer 2023 has been the hottest summer on record, with unprecedented heatwaves, wildfires and floods experienced across the world. There has been no shortage of alarm bells ringing about the climate crisis. Yet many governments and corporate actors have continued with business as usual and global emissions have kept rising. Efforts by governments to reduce emissions have been 'woefully inadequate' to meet the temperature goals of the Paris Agreement.
According to the EPA, even based on full implementation of all current climate measures and policies, Ireland is projected to exceed its first two carbon budgets by a ‘significant margin’. Amidst rising global emissions and increasingly visible climate impacts, climate litigation is emerging as a critical tool for holding governments (and sometimes corporate actors) to their legal obligations under international, European and domestic climate laws.
As of May 2023, there are more than 2,300 pending or decided climate cases globally. A growing number of climate cases – dubbed ‘systemic’ or ‘framework’ cases – involve litigants challenging their government’s or a corporate actor’s overall ‘systemic’ or ‘framework’ policy response to climate change. Even the IPCC has recognised the important role climate litigation now plays in influencing the ambition of climate governance, the opinion of the public /behaviours of the parties, and further cases.
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Legal challenge to the Climate Action Plan 2023
The legal challenge recently launched by Friends of the Irish Environment (an environmental NGO) against the Government's Climate Action Plan 2023 (CAP23) and its Annex of Actions belongs in this category of systemic or framework climate cases. The environmental NGO was granted leave (permission) to proceed with its judicial review challenge. The leave stage of judicial review operates as a screening process to filter out unmeritorious claims. The second-stage, full hearing should take place at a later date.
The crux of the case is that the CAP 23 and its Annex of Actions breach Ireland’s recently amended Climate Act because the Plan fails to set out the detail necessary to show how exactly the government plans to reduce emissions in line with the legally binding carbon budgets. Under the Climate Act, the annually updated Climate Action Plan and its Annex of Actions are meant to set out a roadmap of actions (i.e. the climate measures and policies) needed to stay within the carbon budgets.
A game changing feature of the amended Climate Act is the introduction of a system of legally-binding carbon budgets, which set out the total amount of emissions that may be emitted by the state during a five-year period. The carbon budgets are therefore an important metric for legally permissible emissions. According to Friends of the Irish Environment, the CAP23 needs to quantify the emission reductions expected from the implementation of the climate measures and policies in the Plan to comply with the requirements of the Climate Act.
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Legal significance and the potential wider impact of the case
The CAP23 case, which is part of a global wave of climate litigation, is both legally and socially significant. From a legal point of view, the case builds on the landmark 2020 ruling in 'Climate Case Ireland', where the Supreme Court the struck down the government’s National Mitigation Plan because it did not provide enough detail on how the government planned to achieve its 2050 national transition objective. According to the Supreme Court, the test for a compliant climate plan is whether a reasonable and interested member of the public could know enough about how the government currently intends to achieve the 2050 target from reading it to decide if the government’s policies were ‘effective and appropriate.’
In the 2022 Net-Zero Strategy case in England, the High Court of England and Wales ruled that the UK’s Net Zero Strategy was unlawful because the Minister had insufficient information before him to adopt the strategy. The Court found that the strategy contained quantified policies that only added up to 95% of the emissions reductions necessary to meet the UK’s carbon budget, but the Minister had not been informed what the contribution of each individual policy was, nor how the 5% shortfall would be made up.
There is no information in the CAP23 or its Annex of Actions as to the contribution various climate measures and policies will make to reducing emissions. There are notable similarities between the UK Net-Zero Strategy case and this CAP23 case as both cases call upon governments to create measurable and quantifiable actions to achieve climate targets.
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If the CAP23 case is successful, the Plan will need to be rewritten and an important precedent will be set for future climate plans, which will have to quantify the expected emission reductions of various climate measures and policies or clearly explain how they comply with targets to avoid legal challenge.
The CAP23 case is also likely to have important social consequences. According to the Supreme Court in Climate Case Ireland, the key objectives of the Climate Act are to provide for public participation and transparency in achieving climate targets. Without knowing the contribution climate measures and policies in the CAP23 are making to reduce emissions it is difficult for these objectives to be met.
If successful, the CAP23 case should enhance transparency and facilitate greater public engagement by placing citizens in a stronger position to evaluate whether the kinds of measures and policies the government is proposing in its Plan are credible – or to use the Supreme Court's own language - 'effective and appropriate’ for achieving its climate targets.
These legal actions will continue to be taken by concerned citizens until the Government starts taking its climate obligations more seriously
Although Ireland’s caron budgets are themselves inadequate from a climate justice perspective, identifying shortcomings in meeting these budgets and getting the Government back on track in complying with them by forcing it to clearly set out the estimated emission reductions from each proposed action under the Plan can play a role in narrowing the emissions gap.
In defending climate litigation, governments often argue that the courts are not the correct forum to resolve questions of climate policy. However, the Irish Supreme Court in Climate Case Ireland made clear that 'whether a climate plan does what it says on the statutory tin [i.e., whether it complies with the Climate Act] is a matter of law' and is therefore amenable to review by courts.
Ultimately climate cases like the CAP2023 case – as well as other pending cases like the challenge to Ireland’s long-term strategy and the challenge to the sectoral emissions ceiling – will continue to be taken by concerned citizens until the Government starts taking its climate obligations more seriously and delivering on its climate targets.
The author previously worked with CLM Centre for Environmental Justice, the community law centre representing Friends of the Irish Environment in the CAP 23 case.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
