A challenge to the expansion of Dublin International Airport was denied by an Irish court.Even though it ruled the Dublin International Airport could expand, an Irish court said there is a constitutional right to a safe environment. Photo credit: Getty Images

By Karen Savage

A small group of Irish citizens lost its battle to stop a third runway at the Dublin Airport, but scored a monumental win that could force the Irish government to take effective action to meet its climate change goals.

“A right to an environment that is consistent with the human dignity and wellbeing of citizens at large is an essential condition for the fulfilment of all human rights,” wrote High Court Justice Max Barrett in the decision on Nov. 21, which despite ruling the runway could proceed, created a newly acknowledged constitutional right to a healthy environment.

Friends of the Irish Environment (FIE), a nonprofit that works on issues related to sustainable planning and environmental justice, had argued the proposed third runway would result in additional greenhouse gas emissions and hasten the pace of climate change.

Barrett dismissed FIE’s challenge for lack of standing, but opened the door to future suits using the right to a safe climate.

“It is very timely for our climate case—it is so basic and compelling that we hope the courts will see our case in a newly revealed light,” said FIE director Tony Lowe, who added that there is irony in achieving a new right but not be able to apply it to this particular case.

In October, FIE filed a separate lawsuit against the Irish government, alleging that the country’s National Mitigation Plan doesn’t live up to promises it made in the Paris Climate Agreement to reduce greenhouse gas emissions. FIE also alleges that the plan violates the country’s Climate Act, the Irish Constitution and human rights obligations.

Lowe said FIE is considering whether to  appeal the runway ruling, but underscored the importance of the newly acknowledged constitutional right.

“Initially I think everyone in the Court was gobsmacked, to use an Irish expression,” said Lowe. “I understand that within the hour the word had spread through various organs of the government, where consternation was a mild description of the reaction.”

The ruling is similar to the basis of a case in the Netherlands in 2015, when the Hague District Court ruled for the Urgenda Foundation and 900 citizens and ordered the country to reduce its emissions by 25 percent below 1990 levels by 2020. The Dutch government filed an appeal, which will be heard next year, but the initial victory has led citizens of other countries to consider a similar approach.

In Ireland, it worked.

“The ruling has set a precedent which is likely to underpin future actions of this kind. It is the first such recognition of the rights of citizens to enjoy an environment which does not damage their well being,” said John Sweeney, a climatology professor at Maynooth University who has contributed to the work of the United Nations’ Intergovernmental Panel on Climate Change.

Similar to the Urgenda case is Juliana v. United States, in which 21 young people say their constitutional and public trust rights to a safe and livable climate are being violated by the U.S. federal government. Trial in that case has been set for February, but the Trump administration says pre-trial discovery in the case will cause it irreparable harm and has filed for an extraordinary legal measure called a writ of mandamus, ending the case before it reaches trial. Oral arguments on the government’s request will be heard on Monday before the United States Court of Appeals for the Ninth Circuit.

In his decision, Barrett expressed surprise that FIE did not rely more heavily on the European Convention on Human Rights, which he called a “serious and important document.”

The convention does not specifically address the right to a healthy environment, but does say human rights can be undermined by harm to the environment and environmental risks.

Barrett said that recognizing the constitutional right to a livable environment is only a first step.

“Concrete duties and responsibilities will fall in time to be defined and demarcated,” said Barrett. “But to start down that path of definition and demarcation, one first has to recognise that there is a personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large and upon which those duties and responsibilities will be constructed. This the court does.”

Barrett also made it clear that he intends his ruling to have a long-lasting impact.

“It is not so utopian a right that it can never be enforced. Once concretised into specific duties and obligations, its enforcement is entirely practicable,” Barrett wrote in the ruling.

“The aspect of most relevance relates to intergenerational equity, something which has underpinned legislation on climate change in several other jurisdictions,” said Sweeney.  “It gives standing to individuals to pursue actions where political failures to protect citizens and their children from climate change impacts exist.”

“I cannot see how we—or anyone—would bring any future environmental cases without citing this judgment,” said Lowe.