The Eagle: Trinity College Law Gazette

Environmental Issues and Themes

INSIDE THIS ISSUE:

The Eagle’s Rory Anthoney-Hearn Interviews Former President Mary Robinson (p. 39) ECtHR Climate Litigation: Youth Taking the Lead Once Again (p. 54) Fast Fashion, the Environment, and the Need to Stop the Cycle (p. 67)

“We are a part of everything that is beneath us, above us, and around us. Our past is our present, our present is our future, and our future is seven generations past and present.”

-Winona LaDuke

Photo Courtesy of Aoibh Manning, JS Law and French

Table of Contents Letter from the Editor by Samantha Tancredi (Page 2) The Eagle: Environmental Issues Foreword by Trinity Professor, Dr Suryapratim Roy (Page 3) Is Climate Change the Ultimate Tragedy of the Commons? by Olivia Moore and Samantha Tancredi (Page 5) Buried Treasure: The Memphis Sands Aquifer by Leah Grace Wolf (Page 9) Do Rivers Have Rights? The Legal Standing of Rivers as a Reflection of the Societies in Which They Flow by Aoibh Manning (Page 13) Non-Western Legal Traditions and Environmental Law by Emilie Oudart (Page 15) Toward a Greener Constitution: The Fate of a Constitutional Right to a Healthy Environment in Ireland by Muireann McHugh (Page 18) A Constitutional Right to a Healthy Environment by Georgia Dillon (Page 21) “A Long Way Short:” Climate Case Ireland and the Role of the Justice System in Environmental Governance by Cillian Diskin (Page 25) The Cancer of Climate Change Law: Challenges of Pre-Existing Legal Formalism are Proving Cumbersome by Luke Gibbons (Page 27) Interview with Matthew Mollahan, Campaign Assistant with Climate Case Ireland by Scott Murphy (Page 31) The Future of Constitutionally Protected Environmental Rights by Kyle Egan (Page 34) The Eagle Interviews Former President Mary Robinson by Rory Anthoney-Hearn (Page 39) An Interview with Environmental Law Specialist Sinéad Martyn by Emma Bowie (Page 43) From Megaphones to Magistrates: Climate Activism is Turning to the Courtroom by Eoin Gormley (Page 47) Environmental Destruction and Blood: The True Price of Oil by Adaeze Chuckwugor and Dara Neylon-Marques (Page 50) McVeigh v Rest - A Gateway to a New Era of Australian Climate Change Litigation by Katharina Neumann and Fergus Maclean (Page 52) ECtHR Climate Litigation: Youth Taking the Lead Once Again by Jacob Hudson (Page 54) The Complicated Relationship Between the U.S. and the Paris Climate Agreement by Niamh Stallings (Page 61) The Dichotomy of Inference: Voluntourism and Outsourced Emissions by Ellen Hyland (Page 65) Fast Fashion, the Environment, and the Need to Stop the Cycle by Doireann Minford (Page 67) 15-Minute Cities, Irish Planning Bureacuracy, and Dutch Urban Design by Ted Halligan (Page 71) Star Wars: The Battle for Environmental Regulation of Outer Space by Eoin Jackson and Matthew O’Shea (Page 73) Sky High Emissions in Aviation: International Regulation, the Carbon Offsetting and Reduction Scheme, and COVID’s Impact by Sophie Brennan (Page 75) An Interview with Environmental Justice Solicitor Rebecca Keatinge by Emma Bowie (Page 79) Interview with Trinity Professor and Co-Founder of Natural Capital Ireland, Jane Stout by Dylan Krug (Page 83)

Letter

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Letter from the Editor

In leading The Eagle this year, I decided to create two thematic issues to give students the opportunity to write about a specific topic pertinant to them. It has been so rewarding to read through the pieces that now comprise this very publication; for this issue, we received the highest number of submissions The Eagle has ever seen, signifying great promise that environmental issues are of exceptional importance among the student body. As students, we are all a critical part of changing the world around us, especially as we enter the professional working world outside of college in the next few years.

Former President Mary Robinson spoke during Green Week at Trinity in 2019, and I was lucky to steal a spot in the GMB to listen to her champion efforts against climate change and inspire environmental activism. One of the prominent themes I still hold onto from her speech was her call for us, as students, to “get mad.” Often, I find myself viewing the way things are done to be quite backwards; her point was similar, specifically targeting climate change. Sitting back and allowing things to go on as they are is almost compliance in the urgent issue at hand; in order to enact change, we must both get mad and also use our passion to do better. To do so effectively reminds me of a famous line from former Supreme Court Justice Ruth Bader Ginsburg: “Fight for the things that you care about, but do it in a way that will lead others to join you.”

For this issue, I am reminded of my best friends who themselves are climate activists - who do good for the world and encourage others to join them. That can be the most difficult part: to inspire others to want to join your effort. Actions speak louder than words, a trite saying that finds a certain specific applicability with regard to environmentalism. To Kat, Dara, and Ellen, and many others, thank you for all of the vegetarian recipes and grace in teaching me the seemingly small ways to make big differences.

Best regards, Samantha Tancredi Editor in Chief The Eagle: Trinity College Law Gazette The Eagle staff strives to practice ethical journalism and to promote integrity in its work.

The editors and staff reserve the right to publish only those articles which they consider accurate and not injurious. All articles must meet these criteria in their inception and execution. The opinion articles do not necessarily represent the views of the entire staff, faculty, students, or administration of TCD.

Editor in Chief Samantha Tancredi Deputy Editor Orla Murnaghan

Public Relations Officer Zoe Timmons

Copy Editor Olivia Moore

Editorial Board Blake Stephens, Doireann Minford, Dylan Krug, Ellen Hyland, Emma Bowie, Eoin Gormley, Jacob Hudson, Katharina Neumann, Lucy Mockler, Muireann McHugh, Matthew O’Shea, Michael Archer, Rory Hearn, Scott Murphy

Connect with Us: Facebook: The Eagle: Trinity College Law Gazette LinkedIn: The Eagle: Trinity College Law Gazette Instagram: tcdeagle Twitter: tcdeagle Website: https://eaglegazette.wordpress.com/

The Eagle wants to be inclusive of the entire Trinity College Dublin community, and we welcome submissions from students, faculty, and alums. If you would like to contribute, please contact us at our email. We do not guarantee that every article will be published. Every article sent is subject to be edited for content and size.

All of the opinions expressed are that of the author and not of The Eagle.

Design and Layout

by Samantha Tancredi Cover image by Alannah Campbell

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Foreword

The Eagle: Environmental Issues Foreword by Trinity Professor, Dr. Suryapratim Roy In the last issue of The Eagle, my colleague Neville Cox suggested that dark times notwithstanding, 2020 was one of the best years of his life. He correctly pointed to the resilience and enthusiasm of the law school community, its students and staff. It’s rare to be part of a crowd that makes the best of a situation. There’s something else I’ve been noticing among our students that I need to mention. They’ve figured out how to look into the abyss, and rather than give in to it, pick out the unsanitised bits, and turn them into scholarship.

There is a temptation in these times to give in to banality. We can passively consume disembodied statistics, while the virus actively chips away. Our students are not passive consumers. In our dissertation module on Emergency Law, some of the questions being posed are: Do emergency laws create permanent constitutional change? Given that the Rule of Law requires certainty and planning, is it useful for altered social conditions? Can the judiciary step in when there is executive under-reach in responding to a crisis? Does the unconvincing jurisprudence on derogation from human rights point to more fundamental problems with human rights? What are the invisible forms of structural discrimination that have become evident in the last couple of years?

There’s something so very refreshing in grafting visibility onto the latent. We don’t normally worry about trafficking of exotic meat and merchandise, until they have a role in a pandemic. And the pandemic as we know affects some people more than others. This is true for the slow and unequal violence of climate change – accumulation of capital, formation of nation-states, colonial encounters, and wars led to ecological change, which contributes to respiratory diseases and drought. And in turn, the impact would be greater in places that have compromised air quality or water shortage. Things we don’t think about are potent, and unequally so.

To understand how people can do evil without being evil, Hannah Arendt was interested in the banality of evil.

To understand why the law school thrives in a pandemic, we could paraphrase Arendt and say: our students have a knack for grasping the evils of banality.

“We don’t normally worry about trafficking of exotic meat and merchandise, until they have a role in a pandemic. And the pandemic as we know affects some people more than others. This is true for the slow and unequal violence of climate change.”

Foreward

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Photo courtesy of Rory Hearn, SS Law

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Theory

Is Climate Change the Ultimate Tragedy of the Commons?

By Olivia Moore (Understanding The Tragedy of the Commons), JS Law and Political Science and Samantha Tancredi (Climate Change and Accountability: A Tragedy of the Commons?), JS Law and Political Science Caithfidh sé a bheith cóir a rá gur tír í Éire atá bunaithe ar phobal. Is cuid luachmhar d’ár n-oidhreacht í. Tóg an seanfhocail “Ar scáth a chéile a mhaireann na daoine”, mar shampla, a thaispeánann seo dúinn go soléir. Ach é sin ráite, ní féidir linn a rá go bhfuil Éire, ná aon tír eile dá ndéarfainn é, ag déanamh machnaimh ar an gcomhairle sin – go háirithe laistigh de cheist na timpeallachta.

(It must be fair to say that Ireland is a country based on community. It is an important part of our heritage. For example, take the old Irish phrase “People live in each other’s shadows”, that we rely on each other for shelter, which shows this clearly. But, that said, we cannot claim that Ireland, nor any other country for that matter, is taking this advice – especially where it concerns the environment.)

Understanding The Tragedy of the Commons The Tragedy of the Commons is a concept that has been making the rounds since the days of Aristotle. However, the modern application of this model, and the one that most might be familiar with, is associated primarily with Mr Garrett Hardin, an American ecologist who published a famous article on the subject in 1968. In it, he details a situation in which the rational choices of individuals, acting independently and in their own self-interest, clash with the interests and needs of the larger community. This, he argues, will inevitably result in the depletion of resources against the long-term interests of both individuals, and the group as a whole.

Breaking this down further, the commons can be defined as any shared resource to which all persons have open, free, and unrestrained access. Examples might be the atmosphere, rain forests, outer space, oceans, fisheries, and public land. Thus, the tragedy aspect of his theory occurs when individuals act solely in their own best interests, but consequently to the worst interests of the broader population.

One of the most poignant examples of this phenomenon occurs in the realm of the environment - and more specifically, in problems of pollution. Here it is not so much a question of taking something out of the commons, but of putting something in – sewage onto land, or chemical, radioactive, and heat wastes into water, or harmful and dangerous fumes into the air. However, the system remains much the same: the calculations of utility are much the same as before. The rational man finds that his share of the cost of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them. And since this is true for everyone, we are locked into a system of “fouling our own nest” – provided we behave only as independent, rational, free enterprisers acting only in our own self-interest.

Climate Change and Accountability: A Tragedy of the Commons?

With the salience of the current climate crisis pressing our everyday, the urgency of change brings in the necessity to analyze the Tragedy of the Commons in conjunction with climate change. As is previously mentioned, it is the logic of the individual to act in his or her own self interest, which drives the exploitation of open lands, or the “commons.” Drawing this metaphor to a global scale, one must view the Earth’s atmosphere as the commons of the future. While the effects of climate change are unfortunately both plentiful and catastrophic, the magnitude of the phenomenon expands when considering the intrinsic economic and humanitarian consequences.

Theory

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British economist Nicholas Stern highlights this exact concept, calling global warming “the greatest market failure of all time.” In the individualist spirit imposed by unregulated markets, people left to their own devices have failed to consider the harm imposed by their actions; at a grander level, this can be seen by replacing the individuals with countries - the actions of global leaders such as the European Union, the United States, China, and more, have all contributed to the current degradation and suffering of the global commons.

In slight irony, the most popular view amongst policymakers is that climate change governance should be collective, based on international agreements that involve most nations - despite collectivist strategy ultimately failing under Hardin’s theory. Examples include the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol (KP), which act as cornerstones of international activism within environmentalism. However, having such broad international legislation imposes difficulty in their enforcement and ability to hold nationals accountable; for this to be so, the agreements would have to be adopted through national policies thus ensuring the given nation abides by its own rules. If rules are broken, then there is a specific legal consequence. As seen with The Tragedy of the Commons, there is a considerable lack of accountability held to one’s own self; it is far more economically satisfying and enticing to ask others to uphold commitments and instead take advantage of a lucrative situation for individual gain. As per Hardin’s theory, in acting according to one’s own will, the entirety is ruined for the greater good. Thus, within legislation, having loose, unenforceable international agreements is not enough.

To take a specific example, we now refer back to the collective commons of Earth’s atmosphere, intrinsically linked to climate change. Playing into Hardin’s theory, atmospheric sinks for greenhouse gases act as a common-pool resource, similar to that of a fishery. These sinks have the ability to absorb pollutants, replenished by a natural process; notably, a sink, or “unit,” used by one user is not available to others, which poses an immediate challenge in governing these atmospheric sinks and constraining their usage before ultimate destruction occurs.

However, to even label “who is using what” in this regard is nearly impossible as the users potentially range from cattle owners to those who operate large-scale coal-powered electricity plants to those who own a car. There is no way to exclude individuals from using these sinks, but there is also no way to singularly hold one accountable over another; thus, the possibility of tragedy emerges as an unfortunate likelihood.

“As seen with The Tragedy of the Commons, there is a considerable kack of accountability held to one’s own self; it is far more economically satisfying and enticing to ask others to uphold commitments and instead take advantage of a lucrative situation for individual gain.”

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Theory

Hardin even calls the atmospheric sinks the “ultimate tragedy of the commons’’ due to this discrepancy; with so many individual actors abusing them, the ruins are inevitably going to be felt by all. This tragedy is further driven by the alarming idea that users are incentivized to use these sinks as they are currently available before they are depleted - yet any use pushes the collective into a much worse position.

It is therefore proposed that environmental collectivism is only functional if firstly, all international bodies agree, and secondly, all are bound to that agreement through punitive consequences. Protocols and meetings are promising on a surface level, but clearly may not be enough to prevent the ultimate tragedy of the commons that is seemingly inevitable if the international community does not hold each other legally accountable.

It is finally worth mentioning that all hope is not lost. The alarmism with which climate change is often addressed, specifically within relation to Hardin’s theory, is valid, yet may also be ameliorated by many reasonings and hopes, one of which is coined “Malthusian mistakes.” English economist Thomus Malthus published his Essay on the Principle of Population in 1789, wherein the capacity of population growth is contrasted against the growth rate of food production, which he predicts will eventually result in famine and violence. However, Malthus’s prediction did not account for the possibilities of agricultural productivity, which has since allowed for Earth’s population to reach over 7 billion. Though carrying capacity is often mentioned in environmental literature, the current global population rate is actually reducing; with a closely stagnant global population, climate change, and by extension, the commons, is better mitigated. This also diminishes great concerns associated with Malthus’s proposal, and provides promise that ultimate doom may be avoided. In this collective realm, the effort against Tragedy of the Commons may be avoided if countries are able to enforce litigation and actually hold other nations, companies, and individuals accountable.

Climate change is already on track to become the ultimate, and most destructive Tragedy of the Commons the world has seen; accountability through legal measures and national responsibility is the most viable solution to the inevitability we are trying to run away from. With universal effort underpinning the environmental movement, the tragedy before us may be avoided.

“The rational man finds that his share of the cost of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them.

And since this is true for everyone, we are locked into a system of “fouling our own nest.”

Photo Courtesy of Aoibh Manning, JS Law and French Gender

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“We need sustainability, not austerity.”

-Senator Alice Mary Higgins

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Water

Buried Treasure: The Memphis Sands Aquifer

By Leah Grace Wolf, Contributing Writer from Hutchison School Memphis, Tennessee If you are anything like me, you probably spent your childhood impersonating Captain Jack Sparrow, tearing up your yard in pursuit of gold coins, rubies, and strings of pearls. Alas, I always came away from my epic hunts disgusted at the lack of riches in Tennessee. But while there may not be caches of gold and gems hidden beneath Memphis, Tennessee, there is, without question, a buried treasure - 100 trillion gallons of it, in fact.

Entombed under 1,100 feet of sandy soil lies the Memphis Sands Aquifer. The water resting here fell to Earth between three and four thousand years ago, where it had ample time to trickle through layers of thick sediment into deeper aquifers. Given the glacially slow rate at which the water percolates, when it finally flows from the Memphis Sands Aquifer to a faucet, it typically hasn’t seen the light of day for thousands of years.

The extensive process, which leads to outrageously pure water, has meant low overhead costs for dozens of water-intensive companies in Memphis, where boreholes draw roughly 200 million gallons of water per day. But lying under eight states (Tennessee, Alabama, Mississippi, Louisiana, Arkansas, Missouri, Illinois, and Kentucky), Memphis is far from the only party that pulls from the aquifer, and because the water is some of the cheapest and purest in the country, companies like Coors, Jack Daniels, and Niagra Bottling benefit from the naturally treated water. Distilleries, pharmaceutical companies, and power plants throughout the eight states are among the many industries that rely on the aquifer.

However, the heavy pumping is taking a toll. Hydrogeologists have discovered twenty new “cones of depression” within the last few years -- shaped like an inverted cone, these regions draw the water table down near a borehole from which groundwater is being abstracted by pumping. While they sound harmless, these cones are major sources of friction between states. Over the past fifteen years, numerous inter-state lawsuits have been filed, and recently a fifteen-year-old case reached the US Supreme Court. In Mississippi v. City of Memphis, the state of Mississippi claimed that Memphis is forcibly siphoning its water, and thereby “invaded Mississippi’s sovereign territory.”

That’s a new way to think about water. For nearly two hundred years, the US legal system protected water as res communes - a public entity not owned by any individual person, business, or government body. This is a very unique status given to only a few other things: air, sunlight, and outer space. While Tennessee has fought to get the lawsuit tossed out, Mississippi is on a mission for a multi-million dollar payout and a ruling that would force Memphis to pump water from the Mississippi River instead.

Surface water disputes between states are not uncommon. Most are settled quickly and satisfactorily in district courts; however, this is the first Supreme Court Case to resolve a dispute over interstate groundwater, resulting in what will be a landmark decision. It has the potential to redefine how states, boroughs, businesses, and individuals interact with regard to the management of water. In a world with increasingly great water scarcity, the repercussions of this ruling will be fundamental in determining our next steps amid the pressing water crisis.

Water law varies significantly across states. For example, Texas landowners have the right to withdraw groundwater beneath their property, but that is distinguished from allowing an individual to own the water itself. If the latter were the case, speculators would effectively hold their water until it became more profitable to sell -- when

Water

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pure water becomes even more scarce, which has clear societal and humanitarian repercussions. The wait won’t be long: The UN predicts that by 2050 over five billion people will be affected by water scarcity.

Much of Mississippi’s efforts in arguing the case centers on taking ownership of the water by examining established scientific concepts, like whether groundwater is fundamentally different than surface water. If the two are in fact distinctive, then allegations that the cone of depression underneath western Tennessee have created a gradient (causing water to flow toward Memphis that would otherwise sit under Mississippi) would be equivalent to grand theft. While a ruling from the Supreme Court might kickstart an inter-state groundwater preservation effort, the alternative outcome is worrying. If the court rules that Mississippi does own the groundwater within its state lines, it would open the door for all states to sell groundwater rights to the highest bidder. Citizens would face the reality of buying back water for a much higher price and could face the same debt or bankruptcy situation over paying for their water as paying for their houses, education, or medical care.

Either way, the case signals the beginning of a new phase of transboundary water relationships in the US. The Mississippi v. City of Memphis resolution could even usher in a new age of management collaboration for aquifers that cross national borders, like the 36 aquifers shared by the US and Mexico.

For now, Memphians will continue to enjoy the region’s water, which has brought countless jobs and major economic growth to the area, yet notably, with increased industrialization comes the need to protect the finite amount of water in the Memphis Sands Aquifer. This means, no matter the Supreme Court ruling, local, state, and federal governments must collaborate to bring in a new era of responsible water management.

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Ireland

Ireland

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“I think the answer is far more simple than many have led us to believe: we have not done the things that are necessary to lower emissions because those things fundamentally conflict with deregulated capitalism, the reigning ideology for the entire period we have been struggling to find a way out of this crisis. We are stuck because the actions that would give us the best chance of averting catastrophe—and would benefit the vast majority— are extremely threatening to an elite minority that has a stranglehold over our economy, our political process, and most of our major media outlets.”

- Naomi Klein, This Changes Everything: Capitalism vs. The Climate

Photo Courtesy of Matthew O’Shea, JS Law and Business

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Water

Do Rivers Have Rights? The Legal Standing of Rivers as a Reflection of the Societies in Which They Flow

By Aoibh Manning, JS Law & French We do not give rights to nature, nature has rights. This assertion, often espoused by environmentalists, raises the question – when it comes to the rights of rivers, is it a matter of giving, or merely recognising? When we think of rights, we think of the freedoms and protections accorded to individuals by law, but there are rights that go beyond this. Such rights are universal and timeless, not limited by the limits of the law – moral rights. Some argue that the inherent moral rights of nature, derived from its intrinsic value, render the attribution of legal rights a simple task of recognition. Equally, others have rejected this conception, upholding the idea that moral rights are distinct to humans. However, this does not preclude the granting of legal rights to non-human elements of nature.

Irrespective of moral understandings, an externalist strategy can be employed, and this legal structure utilised as a defining framework to protect rivers and the ecosystems that revolve around them.

This approach has already been adopted in several countries outside of Europe, with a clear intersection developing between the rights of rivers and those of indigenous peoples. Yet, as political scientist Mihnea Tănăsescu has pointed out, this does not stem from any philosophical affinity between the two, especially as rights are a typically Western legal category. Even still, a strategic relationship between the rights of rivers and indigenous communities has developed.

Intersection of the Rights of Indigenous Peoples and the Rights of Rivers The Māori cosmovision of New Zealand’s indigenous community reflects the intrinsic value of nature. By rejecting the hierarchical conception of anthropocentric visions, these communities perceive humans as an integral part of nature, viewing the relationship between themselves and elements of nature like that of family - “I am the river and the river is me.” But how has this cosmological understanding contributed to the legal manifestation of rights for rivers? Since the end of the 19th century, the Māori have been fighting to defend the interests of the Whanganui river, using the legal tools available in the system imposed in their country. In 2017, following one of New Zealand’s longest-running court cases, the river was granted a legal personality and an official acceptance of the Māori cosmovision was observed in terms of jurisprudence. This was crucial to the process of regaining the reciprocal relationship with the river that had been lost during colonisation.

It could be argued that this attribution is more related to the protection of the indigenous community than the river itself. While such anthropocentric leanings are evident in the sense that these rights were conceived as a means to better protect the rights of the indigenous community and their cosmovision, the cosmovision itself offers a non-anthropocentric view of nature. As such, accepting these indigenous narratives into legal texts brings with it a recognition of living entities with intrinsic values. It becomes a matter of “protecting the cosmovision that protects the environment,” as posited by Catherine Mallaganes.

Page 14 Water In 2008, a new constitution was ratified by the Ecuadorian people, with a chapter entitled Rights for Nature.

Although less pronounced than in New Zealand, reference to indigenous cosmology (Pacha Mama) is present and takes place at a far more fundamental level, reflecting the indigenous movement’s central role in laying the foundations for this environmental constitutionalism.

Beyond this Binomial – Varied Conceptions of the Rights of Rivers Although Ecuador was first to establish this constitutional recognition of nature rights, the United States was the first to establish legal structures to recognise these rights – albeit on a municipal level, beginning with the Tamaqua Borough in 2006. Notwithstanding the subsequent recognition of nature rights by Native American communities in their tribal constitutions, this first step was taken by people outside these communities. Thus, despite their undeniable value and importance, indigenous cosmologies do not constitute the sole, inextricable basis of the rights of rivers. This is important to note in relation to Europe, where such a traditional cosmological link with the environment is less obvious. This perspective is furthered by the 2017 judgement of the High Court of Uttarakhand in India which recognised the legal personhood of two rivers. The judges’ reasoning in this case established an important dichotomy, explicitly relying on Hinduism to support the sacred status of these rivers, while supplementing with statistical and scientific knowledge. This type of frontier thinking could prove useful in introducing the rights of rivers within Europe, where science has dominated environmental concerns.

Evolution of Western Perspectives – From Anthropocentric Tradition to Cultural Maturity Ironically, the concept of rights is often seen as a distinctly liberal European and Western Enlightenment idea.

Rights are a shortcut for expressing a belief that an entity must be protected, which may then be validated by various beliefs and arguments – including both indigenous cosmologies and scientific realities. The Western cultural construction of rights can thus offer a potentially universal concept of nature protection, with a diverse assortment of cultures having already proven capable of working with the powerful normative language of rights. Yet, if rights naturally fit into European legal perspectives, why have they not been used to protect our rivers thus far?

The problem lies with another Western liberal concept – individualism. Unlike many indigenous communities, current Western attitudes are less disposed to collectivist values, which more readily embrace ecocentric conceptions of nature. As we have seen, Māori embrace nature as part of their collective, recognizing that they are part of it and vice versa. This does not fit with the standard paradigm of environmental protection in Europe, where nature is protected as something separate from humans. In fact, the laws ‘protecting rivers’ in Europe often amount to nothing more than a further extension of human rights. This perfectly demonstrates the instrumentalist perception that has dominated Western thinking on the subject for far too long. Since the Industrial Revolution, nature has been perceived as a stock of resources subject to the domination of an exploitative economy. A change of mentality is necessary. To give rights to rivers in Europe we must affirm a new vision of humanity, one which recognises a relationship of reciprocity and co-evolution. Awareness of the climate crisis and scientific alerts on the loss of biodiversity are already beginning to infuse the population. We are beginning to see a shift away from this anachronistic vision of our relationship with nature and towards cultural maturity. Is Europe ready to adopt a new ecocentric philosophy and, in doing so, recognise the rights of rivers?

Citizen Mobilisation In considering how this might be done, we must consider the power of citizen mobilisation. From a structural perspective, certain movements and organisations aim to bring the debate to the political level by building momentum and mobilising opinion. Global Alliance for the Rights of Nature (GARN) is a key actor in this area. One essential aspect of the work done by this organisation takes the form of public events hosted to raise awareness among the general public and public authorities about the protection of ecosystems through the Rights of Nature doctrine. One such event, that will take place later this year in June, is the Tribunal for the Rights of Europe’s Aquatic Ecosystems. This tribunal will follow an emblematic and educational approach; imagining how, if the rights of rivers were recognised, they would be defended in a justice system. A similar pedagogical experiment,

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Culture

the Loire Parliament, aims to simulate a parliament of an entire river ecosystem with all interests represented – humans, the river itself, other elements of nature relying on the river – and demonstrate how these could interact and function in a system where such rights are recognised.

Conclusion These initiatives not only mobilise and educate citizens, but also examine an important issue that must be addressed before we can give rights to rivers – how to exercise those rights. Rights without the concrete conditions to exercise them are useless, so we need to recognize the importance of an effective framework to enforce these rights once they have been granted. This will be essential to provide real empowerment and avoid a purely formal granting of rights. By smoothing out these practical elements, when the discourse finally reaches the top political level, rights can be granted to rivers in a meaningful way, rather than giving mere lip service to a vague notion.

Non-Western Legal Traditions and Environmental Law

By Emilie Oudart, JS Law and Political Science The relationship between humans and nature is central to discussions on climate change and environmental challenges. Human activity can have a detrimental impact on the environment, facilitated by Western philosophies and their view on how humans should interact with nature. For example, property rights have been linked to a rise in deforestation as they promote investment and therefore encourage the agricultural use of land. Western legal systems are characterised by their emphasis on the rights of the individual. The core role of the individual in these legal traditions enables the exploitation of natural resources and diminishes the importance of preserving the environment. But how is this issue handled by other legal systems that existed long before the civil law and the common law came to dominate in Europe and, later, across much of the world?

The philosophies, beliefs and values underpinning some of these legal traditions highlight a very different approach to environmental law. We can, and should, learn from these approaches in our efforts to fight against climate change. These traditions have persisted and developed over millennia and more recently have inspired legal developments concerning the environment in many “Western” jurisdictions around the world.

Chthonic Legal Traditions The ancient legal traditions, described by H. Patrick Glenn as “chthonic,” are often associated with a highly respectful attitude towards the environment. Chthonic people live in close harmony with the earth, with their legal traditions emphasising the cycle and balance of life. In the traditions of many sub-Saharan tribes, for example, land is sacred and at the core of the legal system. It cannot belong to anyone absolutely and humans’ relationship to land is protected by supernatural forces. A particularly interesting feature of many chthonic legal traditions is the endowment of non-human entities with rights, including the dead, the supernatural, and the natural. This has important implications for environmental law and is an element of the chthonic tradition that is re-emerging in “state law” (official law backed by the coercive power of the state) in the concept of environmental personhood.

The idea of attributing legal personhood to natural entities has gained traction in many jurisdictions as a means of protecting the natural environment. Although the concept is often traced back to the 1972 work Should Trees Have Standing? — Towards Legal Rights for Natural Objects by Christopher D. Stone, an American academic, it is consistent with many chthonic legal traditions. The recent phenomenon of rivers being endowed with legal rights

Culture

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highlights how non-Western legal traditions have played a role in putting Stone’s theory into practice. This was first seen in New Zealand’s Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, which conferred legal personality on the Whanganui River. Maori tribes in Whanganui argued for legal personhood for the river based on their deep-rooted connection to it. The river is sacred to the tribes. In Maori teaching, humans and nature are closely intertwined and mutually interdependent. This legal development provides a clear example of the legal tradition of indigenous people influencing contemporary developments in “state law” on an environmental issue.

The Hindu Legal Tradition Other legal traditions have also had an impact in this respect. Recent court cases in India attributing juristic personhood to rivers illustrate the influence of the Hindu legal tradition and its approach to the natural world. The Hindu tradition is likely the oldest non-chthonic legal tradition in the world, dating back over 4,000 years. In India, some Hindu law has been codified and continues to apply directly to Hindus in areas such as family law. However, the influence of the Hindu legal tradition can be seen much more broadly, especially in environmental law.

The concept of rights is not part of Hindu law. Instead, karma and a strong emphasis on inherent duties and roles in life (dharma) drive respect for the natural world and prevent harm being done to it. Rivers are revered in Hinduism, with the River Ganges being the most sacred. In Salim v State of Uttarakhand in 2017 the High Court of Uttarakhand granted juristic personhood to the rivers Ganges and Yamuna. Although following New Zealand’s example, the Court explicitly drew on Hindu texts and customs, noting that “Rivers Ganges and Yamuna are worshipped by Hindus. These rivers are very sacred and revered.” It also placed emphasis on the fact that the Ganges is mentioned in the Rigveda, one of the original Hindu texts and a source of much of the Hindu tradition. While the Court’s order in this case was subsequently stayed, the reasoning in the judgment provides an illuminating insight into an alternative perspective on humans’ relationship with the environment and how other legal traditions can influence “state law.”

Conclusion Describing cultures, customs and values as law may seem unorthodox and it can be difficult to understand the law in this way from a Western-centric perspective. But law existed long before the development of the civil law in the Roman Empire or the common law in England, and far beyond their jurisdictions. Many of these non-Western traditions are less formal and tend to be strongly intertwined with mythology or religion. Although not always visible to those of us who focus on “state law,” these legal traditions have endured and evolved over thousands of years. Today, these legal traditions are re-emerging in ‘state law’ to provide responses to issues like the environment where Western jurisprudence has proven problematic. While many are looking for new, bold ideas to address the climate crisis, the examples in this analysis suggest that some of the solutions are already available in existing non-Western philosophies. We simply need to broaden our perspective to find them.

“The relationship between humans and nature is central to discussions on climate change and environmental challenges. Human activity can have a detrimental impact on the environment, facilitated by Western philosophies and their view on how humans should interact with nature.”

“We stand now where two roads diverge. But unlike the roads in Robert Frost’s familiar poem, they are not equally fair. The road we have long been traveling is deceptively easy, a smooth superhighway on which we progress with great speed, but at its end lies disaster. The other fork of the road — the one less traveled by — offers our last, our only chance to reach a destination that assures the preservation of the earth.”

-Rachel Carlson, Silent Spring

Photo Courtesy of Samantha Tancredi, JS Law and Political Science

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Toward a Greener Constitution: The Fate of a Constitutional Right to a Healthy Environment in Ireland

By Muireann McHugh, JF Law “A right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfilment of all human rights.”

Barrett J, Merriman v Fingal County Council.

In Friends of the Irish Environment v Government of Ireland 2020 (hereinafter the FIE case), the Supreme Court dealt with two central issues: whether the Government’s National Mitigation Plan to tackle climate change was ultra vires and whether the unenumerated right to a healthy environment existed consistent with either the Constitution or the European Convention of Human Rights. The Latin phrase ultra vires directly translates to “beyond the powers’.’ Under the Climate Action and Low Carbon Development Act 2015 (the 2015 Act), the Government was legally bound to form the National Mitigation Plan to lay out specific aims and objectives to address climate change in Ireland. The environmental advocacy group, Friends of the Irish Environment (FIE), contended that the Plan did not have a sufficient degree of specificity which was required under the 2015 Act. In short, the 2015 Act vested in the Government the power to devise a specific plan, but the Government instead devised a vague plan.

This is the essence of the argument FIE constructed in which they alleged that the Government had acted ultra vires. FIE also claimed that the Plan did not succeed in realising the right to an environment which is consistent with human dignity, recognised by Barrett J in the High Court in Merriman v Fingal County Council 2017. Although Chief Justice Frank Clarke overruled Barrett J’s judgment and did not recognise a right to a healthy environment in the FIE case, the judgment is significant because it gives insight into how a constitutional right to a healthy environment could materialise in Ireland in the future.

Constitutional Legal Principles In order to understand Clarke CJ’s judgment, it is important to acknowledge some fundamental principles of Irish constitutional law. Firstly, the law should be clear, exact and definite in order to properly regulate human conduct, and its subjects need to understand what is legally required of them.

Secondly, litigants only have locus standi, or standing, to challenge the constitutionality of legislation if they are personally affected by the provision. In general, corporate entities and non-governmental organisations cannot bring a constitutionality claim to court.

Thirdly, the ‘unenumerated rights doctrine’, whereby constitutional rights are recognised even if they are not explicitly written in the Constitution, is a significant part of Irish Constitutional law. The doctrine was first conceived in Ireland in the case of Ryan v Attorney General [1965], where the Supreme Court recognised the right to bodily integrity. Since then, unenumerated rights such as the right to marital privacy in McGee v Attorney General [1974] and the right to earn a livelihood in Murphy v Stewart [1973] have been recognised by the Irish courts. The

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doctrine is shrouded in controversy as it vests huge power in unelected judges to recognise rights. The Irish courts appeared to move away from the practice of judicial activism in the 1990s, however there have been whispers of a revival of the unenumerated rights doctrine when the Supreme Court recognised a right to work in N.H.V v Minister for Justice and Equality 2017.

Analysis of Clarke CJ’s Judgment in the FIE Case In the FIE case, Clarke CJ held that he could not recognise a right to a healthy environment because it already fell into the rubrics of the right to life and the right to bodily integrity. This logic, however, does not follow the precedent set out in State (Healy) v Donoghue 1976. In this case, O’Higgins CJ recognised a right to legal aid. Evidently, this does not go beyond the broader constitutional right to a trial in due course of the law under Article 38.1. Nonetheless, the Court explicitly recognised a right to legal aid consistent with Article 38.1 to create stability.

Therefore, Clarke CJ’s obiter comments that it was unnecessary to expressly identify the environmental right diverges from the precedent set in Donoghue.

In many ways, the identification of a right to a healthy environment is uncharted territory for the Irish judiciary. There are no references to rights or obligations in relation to the natural environment in the Constitution.

Hitherto, environmental matters have rested solely with the legislature, and the intersection of environmental and constitutional rights is a novel area of Irish law. Clarke CJ protected the integrity of the separation of powers in his judgment through his unwillingness to cross the threshold of environmental law, which has traditionally been a matter for the legislature.

Clarke CJ also raised concerns about the “impermissibly vague” nature of the right to a healthy environment.

Whilst Barrett J held that the responsibility to lay down the parameters of newly recognised unenumerated rights lies with later courts, Clarke CJ instead opined that some precision was necessary before identifying an unenumerated right in order to properly regulate and guide human conduct. Barrett J offered no insight into the duties and responsibilities an environmental right would involve, or what powers it would confer onto the Irish Government.

From this perspective, Clarke CJ’s reasoning is sound.

However, it is noteworthy that some elements of the Irish Constitution are vague. By virtue of the existence of unenumerated rights, it is clear that some constitutional provisions are sufficiently ambiguous and vague enough to allow standalone rights to be derived from them. The right to marital privacy, for example, was derived from Article 41.3.1°, which obliges the State to protect the institution of marriage. The Constitution offers no guidance as to whether this obligation should be approached in a collective sense, or in an individualistic manner. However, as the case law developed, following Barrett J’s prediction of what would happen with the right to an environment, specific duties and responsibilities that the right to marriage free from attack conferred onto the State was identified. Therefore, Clarke CJ’s argument in the FIE case, that the recognition of an unenumerated right should come with a relatively concrete outline of the limitations and obligations the right imposes, is baseless.

The Future of the Right to a Healthy Environment Clarke CJ’s decision not to identify a constitutional right to a healthy environment lacked judicial foresight in some respects. The international jurisprudence suggests that a right to a healthy environment will eventually materialise in Ireland. For example, countries such as Myanmar, Kenya, Iceland, and Zimbabwe have recognised a constitutional right to a healthy environment in recent times. Clarke CJ merely delayed the inevitable.

However, Clarke CJ did give insight into how exactly the right to a healthy environment could be legally recognised in Ireland at some point in the future. He made clear that while he could not identify a right to a healthy environment in the FIE case, a constitutional right to a healthy environment could be recognised in a later case with an individual plaintiff who is personally affected by the non-existence of the right, instead of a corporate body

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such as FIE. Additionally, Clarke CJ makes reference to the possibility of inserting a provision into the Constitution for a right to a healthy environment vis-a-vis a referendum. This is an inherently democratic approach, which is favourable in a constitutional democracy such as Ireland. Whilst the right to a healthy environment was not recognised in the FIE case, Clarke CJ left the fate of the right to a healthy environment unsealed.

The Future of Unenumerated Rights Not only did Clarke CJ give insight into the future of the right to an environment, he also gave insight into the future of unenumerated rights more broadly. There is significant coverage on the shift in terminology from unenumerated to derived rights in his judgement. He expresses favour for the term “derived rights” in lieu of unenumerated rights because “it conveys that there must be some root of title in the text or structure of the Constitution from which the right in question can be derived.” This deviation gives insight into the future of unenumerated rights, as it suggests a modern revival of judicial activism in the form of derived rights. Developments in case law should ebb and flow, and this had a bearing on Clarke CJ’s unwillingness to identify a derived right in the FIE case.

Just as unenumerated rights gradually fell out of favour in the 1990s, derived rights should be reintroduced by the judiciary in the same gradual fashion. The judiciary have shown a renewed interest in the unenumerated rights doctrine in N.H.V v Minister for Justice [2017], and so are in the infancy of a possible derived rights revival. Only further development of the case law will confirm this, but Clarke CJ’s judgment gives insight into what the future of judicial activism in the Irish courts could entail.

Conclusion Undoubtedly, some of the most fundamental Irish constitutional rights underpin Clarke CJ’s judgment in the FIE case. He ruled that FIE did not have standing to make a constitutional claim and that a right to a healthy environment was “impermissibly vague”, and displayed a desire to safeguard democracy by suggesting that constitutional right to a healthy environment could be recognised by way of referendum. Clarke CJ firmly left the door open for a right to a healthy environment to be inserted as a constitutional provision in the future, while also giving insight into the fate of derived constitutional rights as a whole. However, considering the urgency with which we need to tackle climate change on a personal, governmental and institutional scale, one cannot help but be disappointed at the fact that Ireland still does not recognise a constitutional right to a healthy environment, notwithstanding the constitutional legal principles, which Clarke CJ conformed to in his judgment.

“However, considering the urgency with which we need to tackle climate change on a personal, governmental and institutional scale, one cannot help but be disappointed at the fact that Ireland still does not recognise a constitutional right to a healthy environment, notwithstanding the constitutional legal principles, which Clarke CJ conformed to in his judgment.”

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A Constitutional Right to a Healthy Environment

By Georgia Dillon SF Law In 2019, a group of Irish Citizens brought the Irish Government to the High Court. They claimed that government action on climate change was not sufficient and demanded that this be corrected. A year long legal battle ensued, with the Supreme Court ruling in favour of Friends of the Irish Environment, stating that Ireland’s National Mitigation Plan was not adequate in light of its legal obligations. However, this raises the question: did this case limit the extent of constitutional protection accorded to Irish citizens’ environmental rights?

The Case in The High Court In March 2019, Friends of the Irish Environment, a collective of environmental activists, presented their case in the High Court. They argued that the Irish Government had failed in its legal obligation under the Climate Action and Low Carbon Development Act 2015 to “specify the manner in which it is proposed to achieve the national transition objective,” which involves a shift to a “low carbon, climate resilient and environmentally sustainable economy.” Friends of the Irish Environment submitted that the 2017 National Mitigation Plan did not satisfy this requirement under the 2015 Act. They also contended that the plan violated constitutional and human rights, such as the right to life and the right to bodily integrity. They believed that the Plan had no hope of ensuring that Ireland would achieve the goal of becoming ‘a low-carbon and climate resilient and environmentally sustainable economy by 2050.’

In the High Court, Mr. Justice MacGrath stated that “it is self-evident that climate change is a problem of and for the global community. No one country, particularly that of the size of this State, can tackle the problem on its own. That, however, does not lessen the requirement to do what is necessary to achieve scientifically advised targets.” However, the High Court ruled in favour of the government, finding that “the court should avoid interfering with the exercise of discretion by the legislature or executive when its aim is the pursuit of policy.” Mr. Justice MacGrath believed that the Plan was an initial step in making the country a low-carbon, environmentally sustainable economy by 2050. The Court denied Friends of the Irish Environment’s claim that the government was not fulfilling its legal obligation and did not oblige the State to rethink Ireland’s climate change policy.

The Appeal Friends of the Irish Environment were granted leave to appeal to the Supreme Court as their case raised a matter of general public and legal importance. They sought an order for judicial review, asking that the courts quash the decision of the High Court to approve the National Mitigation Plan 2017 and an order for the Government to revise the plan in accordance with the standards set out in the Climate Action and Low Carbon Development Act 2015.

The group also argued that the National Mitigation plan was unconstitutional, that it was in breach of the Charter of Fundamental Rights of the European Union, The Kyoto Protocol, the Paris Agreement and Section 3 of the European Convention on Human Rights. The group’s aim was for the Court to recognise an unenumerated right to a healthy environment, to join Portugal and Spain in recognising a constitutional right to a healthy environment.

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In the Supreme Court The Appeal was heard by the Supreme Court in July 2020. The Judgment of Mr. Chief Justice Clarke opened with the unequivocal statement, “Climate change is undoubtedly one of the greatest challenges facing all states.

Ireland is no different.” He clarified that the case was not an indicator of the Court’s stance on climate change, but whether the government had breached rights in its handling of this issue through the National Mitigation Plan.

The Chief Justice held that the Plan fell short of the standards set in the Climate Act 2015. The Court quashed the plan, leaving a gap in legislation and an opportunity for the government to enact legislation that better aligns with the Climate Act 2015 and its goals.

A Constitutional Right to a Healthy Environment?

However, in this judgment, Mr. Chief Justice Clarke ruled out the existence of a possible unenumerated constitutional right to a healthy environment. The judgment states that “while not ruling out the possibility that constitutional rights and obligations may well be engaged in the environmental field in an appropriate case, I express the view that the asserted right to a healthy environment is… superfluous…[and] I express the view that such a right cannot be derived from the Constitution.”

But what does this mean? Mr. Chief Justice Clarke stated that constitutional rights, such as the right to bodily integrity and the right to life, may be invoked in cases regarding breach of environmental rights. Citizens can state that their existing rights have been breached due to issues arising from climate change, but Irish citizens do not have an explicit right to a healthy environment under our constitution. This came as a surprise for many, who believed that the right could be derived from Article 40.3, the article that recognises personal rights in our constitution. This does not mean, however, that a constitutional right to a healthy environment is out of the question.

It is possible that with enough lobbying and pressure, a referendum could be held to establish a right to a healthy environment. Indeed, the French government has recently unveiled plans to hold a referendum to include climate protections in their constitution.

Conclusion The Climate Case was a landmark judgement in which the Supreme Court ruled that Irish government action on climate change was not sufficient to meet the standards of the Climate Act 2015. This is a significant ruling as it is estimated that we only have until 2030 to reduce emissions by 45 per cent and ensure that global temperatures do not exceed a rise of 1.5 degrees. Any further temperature rise would wreak havoc on our planet and cause sea level rise, intense rainfall in winter and droughts in summer in Ireland.

In the aftermath of the case, the government has shown initiative in introducing the ambitious Climate Action and Low Carbon Development (Amendment) Bill 2020, which commits the government to move towards a climate resilient economy by 2050. The plan strives to show that Ireland can become a climate neutral economy by 2050 whilst creating jobs and sustainable growth. However, as it has not yet passed into legislation, it may be too little too late to alter Ireland’s impact on our climate as the third highest producer of greenhouse gasses in Europe.

It is up to the government, and us as Irish citizens, to demand that adequate policy is introduced to save our planet, and soon.

“It is up to the government, and us as Irish citizens, to demand that adequate policy is introduced to save our planet, and soon.”

“You cannot protect the environment unless you empower people, you inform them, and you help them understand that these resources are their own, that they must protect them.”

-Wangari Maathai

Photo Courtesy of Aoibh Manning, JS Law and French

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“A Long Way Short:” Climate Case Ireland and the Role of the Justice System in Environmental Governance

By Cillian Diskin, JS Law and Business In July 2020, Chief Justice Frank Clarke handed down the unanimous decision in Friends of the Irish Environment CLG v the Government of Ireland , quashing the National Mitigation Plan which was published in 2017 pursuant to the Climate Action and Low Carbon Development Act 2015. Not only was this decision a resounding victory for the environmental NGO, but an indication that the Irish justice system has a role to play in the climate battle. The Supreme Court took a strong stance in strictly applying the specificity requirements imposed by the 2015 Act. It should serve as a momentum boost for future environmental litigation, as well as broader policy objectives as Ireland pursues carbon net zero emissions.

Friends of the Irish Environment (FIE), an environmental NGO, had begun proceedings against the Irish government three years prior, on behalf of over 18,000 petition signatories. Clodagh Daly, who led the group’s campaign, said that the Government had not taken sufficient action to combat climate change. The 2015 Act required the Minister to submit a National Mitigation Plan to the Government once every 5 years, working towards the ultimate goal of net-zero carbon emissions. The Plan produced was criticised by the Climate Change Advisory Council, the Citizens’ Assembly, and members of the public. Particular issue was raised with the fact that, while the Plan projected carbon neutrality by 2050, emissions were envisaged to increase in the short term.

FIE brought proceedings against the Government on the basis that they had acted unlawfully in introducing this particular Plan. They claimed that the Government had failed in its duty to vindicate the rights of the people of Ireland under the Constitution and the European Convention on Human Rights (ECHR). They also claimed that the Plan was ultra vires the legislation, that it did not comply with the obligations established by the 2015 Act. The former was not directly relevant to the judgement, as there were sufficient legal grounds to quash the Plan on the basis of the latter. In regard to the second claim, Clarke CJ considered the justiciability of environmental policy and the specificity requirement of the Plan itself.

Regarding justiciability, the Government had submitted that the Plan was an adoption of policy, referencing Garda Representative Association v Minister for Finance [2010], claiming that the power to set policy on areas of “national interest” and to “disperse funds in accordance with that policy,” is beyond the scope of judicial review.

The court rejected this submission as the case concerned a legal requirement set out in legislation. By its nature legislation rarely lacks some policy objective, and therefore the presence of such does not exclude the Plan from judicial review.

The words of the statute itself require the compliant Plan to ‘specify’ how it intends to meet the National Transition Objective (NTO), achieving a competitive, low-carbon, climate-resilient and sustainable economy by 2050.

The Act required the Plan to have sufficient information so as to allow the public to reach their own conclusions

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on its effectiveness. It follows that the level of specificity required from the Plan be that which allows a reasonable and interested member of the public to know how the government intends to meet the NTO. The Court held that the Plan left too much to further study or investigation, and that it “falls a long way short” of the specificity requirement.

The specificity requirement was a sufficient mechanism to quash the Plan, however, Clarke CJ did also consider the question of standing with regard to FIE mounting a rights-based claim under both the Constitution and the ECHR. On this point he made reference to the judgement of Henchy J in Cahill v Sutton [1972], which established the general rule that a claimant must show that their rights may have been interfered with to be afforded standing.

While considering the risk posed by the blurring of the distinction between rights-based litigation and policy issues, Clarke CJ noted that the general rule is one which can be appropriately relaxed. However, it was held that this was not the case for such a relaxation, and that FIE were unable to mount a rights-based claim. Although, the Court pointed out that there seemingly was no practical reason for FIE to bring these proceedings, rather than providing support for individuals to do so. Therefore, the case could still encourage NGOs to bring forward rightsbased claims, but only through an individual with locus standi.

Clarke CJ then went on to consider the existence of an unenumerated, or ‘derived,’ right to a healthy environment. In this case and in Friends of the Irish Environment v Fingal County Council [2017], the High Court had recognised such a right, but the Supreme Court was unwilling to do so. Such a right was deemed impermissibly vague, while it was acknowledged that, in theory, an individual could rely on constitutional rights in the context of environmental law. This is a significant point. The court was not in a position to identify the parameters in which this right could operate. As time goes on, however, the severity of the consequences of climate change, as well as the urgency to achieve net-zero emissions, likely will intensify. This begs the question as to whether future mitigation plans could be scrutinised under constitutional law.

This case demonstrated the stringency with which any future plan in line with the 2015 Act would be reviewed.

The Government is unable to rely on the separation of powers argument to avoid litigation around its obligations under the legislation. This will uphold a higher standard of specification and clarity in how Ireland is set to meet the NTO, which is already evident from the 2019 Climate Action Plan, aiming to reduce emissions by an average of 7 per cent per year from 2021 to 2030.

The decision is indicative of the courts ‘adding fuel to the fire;’ contributing to the momentum behind the increasing sophistication of climate policy in Ireland. A large portion of the judgement was concerned with the contextual basis for the claim, which was the science behind, and severity of, climate change. Clarke CJ made reference to the summary of the impact on Ireland produced by the Environmental Protection Agency, which referred to extreme weather, the inundation of coastal land, extreme storm activity, mortalities and morbidity, food-borne disease, skin cancer, and mental illness.

The recognition of this severity, coupled with the core aspects of the decision outlined above, are illustrative of a strong stance taken by the Supreme Court. This stance is not only influential on a national level, but it represented another win for the Climate Litigation Network, which helps activist groups bring proceedings against their national governments. The Network provides experienced legal support internationally, and helped to successfully established political accountability in the Netherlands, in the Urgenda Climate Case. On 3rd February another victory was secured in the Administrative Court of Paris, recognising the legal responsibility of the French State for its contribution to the climate crisis. Co-Founder, Tessa Khan said cases like these have “real impacts.” Daly, of FIE, spoke herself in this regard, saying FIE are “riding on the crest of what we hope is going to be a global wave of climate litigation.”

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The Cancer of Climate Change Law: Challenges of Pre-Existing Legal Formalism are Proving Cumbersome

By Luke Gibbons, Contributing Writer, BCL Candidate at the University of Oxford The relationship between the courts and climate change law is far from a love story. It is more akin to a complex array of tangentially interconnected romantic affairs, where the exact ending and crescendo of the story is yet to materialise and a continuous cliff hanger looms large. In contrast to a love story, climate change as a phenomenon is more accurately conceptualized as the cancer of the earth, and climate change law as the cancer of judicial decision making. What is contended by this is that climate change presents unprecedented, ever-metamorphosing challenges to pre-existing judicial cognition, much like the problems mutating cancers pose to medical experts.

These challenges have given climate change law a broad scope, cross-cutting almost every legal subject area and challenging the anachronistic compartmentalisation of discreet bodies of law. Adherence to strict legal formalism has caused great problems for the judiciary in addressing the spread of the cancer of climate change and new lines of reasoning are urgently required.

The Cancer Has Spread Far and Wide In answering the question as to what climate change law is, the instinctive answer is to point to the UNFCCC, the Kyoto Protocol and the Paris Agreement. However, this analysis is not only superficial but also incomplete.

Although these instruments play a critical role in framing the issue and the science behind policy, such as the ambitions of global 1.5°C targets, the reality of Nationally Determined Contributions (NDCs) and the operation of national judiciaries means that much climate change law is applied and arguably created at a national level. It is illustrative of the complexity of this area that defining a climate change case is difficult. For instance, although the case of Hueraz (Lluiya v RWE) would traditionally be compartmentalised as a civil suit and Plan B Earth v Secretary of State for Transport as a judicial review, what connects both cases is climate change. This cross-cutting dynamic causes judiciaries to rethink how law is labelled, siloed and considered in its entirety. However, courts across many legal disciplines have struggled to develop imaginative solutions to climate change and have favoured comfortable application of pre-existing legal formalism.

How the Judiciary Have Approached the Cancer of Climate Change Justiciability The widespread nature of the cancer of climate change not only challenges these frames placed around decisions, but its complexity also confronts conventional reasoning. The need for coherent and coordinated national responses to climate change is made more important considering the discretion the Paris Agreement gives to States. Decisions on whether a case is justiciable or within a court’s jurisdiction highlight the difficulties in applying legal formalism in the climate context.

The recent UK Supreme Court decision in Plan B Earth v Secretary of State for Transport is illustrative in that as

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the judiciary held that the Paris Agreement was not part of government policy at the time the decision was made, the commitments made under it were not relevant. Furthermore, in Friends of the Irish Environment v Ireland, the justiciability of the case turned on the fact that “policy became law” by enacting the Climate Act 2015 and thus the validity of the vague National Mitigation Plan could be subject to scrutiny. While formal thresholds are in place, particularly in the global north due to the cultural preoccupation with the separation of powers, the point to be made here is that the consistent spread of climate change cancer challenges these notions, and the pervasiveness of the problem calls for more innovative judicial reasoning to legally tackle the issue.

An example of the legal imagination required can be found in Preston J’s judgment in Gloucester Resources Limited v Minister for Planning, where he placed emphasis on the symbolism of what it means to be party to the Paris Agreement in deciding that planning refusal was correct. Preston J suggests that making climate change a relevant consideration in every administrative decision will provide an innovative avenue for courts in justiciability and judicial review proceedings. However, a balance in the judiciary addressing new issues always must be struck between adherence to legal formalism that legitimizes judicial decisions and addressing the overarching reality of the issue at hand.

Standing It is also illustrative to assess how the rules of standing have been applied in climate change cases. As legal academic Elizabeth Fisher outlines, standing requirements generally require a party to display that their private interests have been directly affected. However, the scientific uncertainty of the future of climate change challenges these common formal standing requirements of “actual” and “immediate” threat as seen in Massachusetts v EPA and “imminent danger” in Friends of the Irish Environment v Ireland.

The different conclusions on standing between these cases is noteworthy in that the Irish Courts remained entrenched in legal formalism to deny standing on the rights claims. However, much like in Urgenda v Netherlands, the US court recognised the reality of climate change and developed a new form of “state standing” in recognition of the potential future environmental impacts. The reluctance of the Irish court to reimagine these strict tests even in the face of climate change also highlights the degree to which legal culture plays a role here when compared to Mohd Salim v State of Uttarakhand & others, which gave rivers “legal personality” to invoke rights like humans, when the Irish judiciary did not even let an NGO argue for human rights. Thus, some courts are willing to bend formalistic requirements to address the reality of climate change, whereas others are not. In an area that is so polycentric, these nation-specific formalistic barriers present a huge problem for a consistent global response and somewhat question the bottom-up approach of the Paris Agreement.

“The relationship between the courts and climate change law is far from a love story. It is more akin to a complex array of tangentially interconnected romantic affairs, where the exact ending and crescendo of the story is yet to materialise and a continuous cliff hanger looms large.”

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Causation The polycentric nature of climate change frustrates the pre-existing doctrine of causation in that scientific uncertainties and future damages do not readily comply with well-established tests such as “but for”. This issue is well highlighted when comparing the different reasoning in Gloucester Resources Limited v Minister for Planning and in Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy.

In determining “relevant considerations” in Gloucester, Preston J held that “downstream burning” should be considered by the decision maker as “all greenhouse gases contribute to climate change”. Thus, Preston J took an expansive approach to climate change causation and included potential emissions as relevant considerations. It is notable that this language is similar to Massachusetts v EPA, where the US Supreme Court outlined that a causal link existed between vehicle emissions and climate change as “no matter what happens elsewhere” this “would slow the pace of global emissions”.

While one would be forgiven in concluding that legal imagination seems to be addressing causation rather well when looking at these two cases in a vacuum, if one considers the ruling in Greenpeace the difficulties of the relationship between the formalistic requirements of causation and climate change are apparent. In contrast to Preston J’s analysis the Court took a conservative view and held that there was too much scientific uncertainty regarding whether the granting of the licences would lead to increased emissions. This highlights once again how the pre-existing legal construct of causation impeded judges in addressing the spread of climate change cancer. If there is uncertainty that someone who has cancer will make it worse by acting a certain way, a doctor will advise them to stop. The earth has cancer and the judiciary in this case are facilitating it through unimaginative and somewhat indefensible adherence to strict legal formalism.

Conclusion Climate change has spread like a cancer into almost every legal subject and challenges formalistic requirements such as jurisdiction, standing, and causation. This is particularly problematic as much discretion is given to States under the Paris Agreement, and like the spread of Covid-19, the polycentricity of climate change means that global cooperation is paramount. Thus, imagination in addressing climate change as a legal field is urgently required.

“In contrast to a love story, climate change as a phenomenon is more accurately conceptualized as the cancer of the earth, and climate change law as the cancer of judicial decision making.”

“If we put together all the knowledge systems that we have — science, technology, traditional knowledge — we can give the best of us to protect our peoples, to protect our planet, to restore the ecosystem that we are losing.”

-Hindou Oumarou Ibrahim Photo Courtesy of Katie O’Reilly, JS Law

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Interview

Interview with Matthew Mollahan, Campaign Assistant with Climate Case Ireland

By Scott Murphy, SS Law and Political Science Who is Climate Case Ireland?

Climate Case Ireland was launched in response to the government’s 2017 National Mitigation Plan (NMP) by Friends of the Irish Environment (FIE) – a group of activists who pursue environmental justice usually through legal challenges. FIE has taken several cases over the past twenty years but the reason that Climate Case Ireland is seen as a branch of FIE is because of the urgency of the climate crisis and our case was especially important because it was against national legislation on climate change. So, you can see Climate Case Ireland as the climate branch of Friends of the Irish Environment.

Climate Case Ireland won their most recent case in the Supreme Court in July 2020. What were your arguments and which arguments were successful?

Our arguments were about the intersection of climate science and human rights. We argued that the government’s plan to reduce carbon emissions was insufficient under the Paris Agreement and under their own climate act (the Climate Action and Low Carbon Development Act 2015) which stated that the Irish government should reduce its emissions by 25 to 40 per cent, which we have not seen – there has actually been an increase in this time.

We argued that this breached several rights such as the right to life and the right to private and family life under the European Convention on Human Rights (ECHR), and that there was a right to a safe environment which is a corollary of the right to life (this was accepted in the High Court but not in the Supreme Court).

We hoped that they would enshrine the right to a healthy environment as an unenumerated right, but the Supreme Court decided not to because FIE is an organisation, not a person, and does not have the same standing rights as individuals. This was the only argument that failed, so overall the case was a success. The government had to rewrite their climate legislation to ensure that it is in line with the correct climate science. So, the Supreme Court quashed the National Mitigation Plan because it did not comply with the Climate Act. Climate Case Ireland is part of a global network of climate cases being taken against national governments for their failure to take climate action. How influential was the Dutch Urgenda decision to the Irish case?

Urgenda’s influence cannot be overstated. Several people involved with Urgenda have given talks with us and have helped us to form legal arguments. But more than this, we took inspiration from them. They had over 800 co-complainants, so the case was not just for Urgenda (the environmental NGO) - it was for everyone in the Netherlands. We wanted to emulate that but we could not have that many co-complainants under judicial review. So instead, we launched a petition which has over 20,000 signatures with the idea being that the case was on behalf of everyone who signed it. By the time we went to the High Court, Urgenda had won its Supreme Court case and the Dutch government was mandated to reduce its emissions by 25 per cent, which was a massive boost of confidence and a great inspiration. So the two are very interlinked.

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How influential do you think Ireland’s successful climate ruling will be for climate litigation across the world?

We’re hoping that the Irish case can be an inspiration to others and I think it already has - it made headlines across the world. But we are also hoping that in the same way that we referenced Urgenda in our legal arguments, others can reference the Irish case in theirs. For example, while the Irish government never denied that they were not in line with their climate obligations, they argued that Ireland’s influence on the global climate was too small, but the Court basically said that it does not matter how small Ireland is, they still have to comply with their obligations. We are hoping that this will work in other countries.

Would you be able to comment on the recent, successful French climate case which has been called “L’Affaire du Siècle” (the case of the century)?

It was a bit different to the Irish case, which was a judicial review challenge against specific legislation, whereas in France they were suing the government for their climate inaction. What was great about the French case was that it was taken by four environmental organisations (Greenpeace France, Notre Affaire à Tous, the Nicolas Hulot Foundation, and Oxfam France) and they had a petition which was signed by almost two and a half million people. Although the French court ruled that France’s actions are not in line with the Paris Agreement, the Court is delaying their final judgement for two months so they can decide whether they should mandate the government to act any further. So, it is very exciting, but we are still waiting for the final result.

Aside from court cases, Climate Case Ireland campaigns on other climate issues.

Could you explain: a) Your criticism of Ireland’s new Climate Bill (the Climate Action and Low Carbon Development (Amendment) Bill 2020)?

Our criticism of the Climate Bill is really an extension of our win in the Supreme Court. The Climate Bill came out following the Supreme Court telling the government to rewrite their climate plan. But the Bill is not in line with what we need, so we see our role now as holding the government to account on this.

There’s many ways in which the language in the new Climate Bill is actually weaker than before. For example, it mentions “pursuing” net zero emissions by 2050 rather than “achieving” it, which is very loose language and there is no accountability in that. There needs to be repercussions for the government not meeting its targets. We also want to see the principles of Climate Justice and Just Transition embedded in the Bill. We need to ensure that people working in industries which might suffer because of decarbonisation won’t be left behind, so Photo Courtesy of Matthew Mollahan

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perhaps a jobs guarantee, a welfare payment, or guaranteed retraining could be included in the Bill. There also needs to be interim targets in the Bill - 2050 is a long way away, and we really should be decarbonised by 2030, not 2050 - so there needs to be targets to be hit at intervals between now and then to show how it is going to be done. b) Your opposition to CETA (the Comprehensive Economic and Trade Agreement) – the controversial trade and investor deal between Canada and the European Union?

Our opposition to CETA is based on a wide range of factors. Obviously, we are coming at it from an environmental and climate perspective but CETA is potentially damaging for a wide range of areas including workers’ rights and housing.

There are effectively two chapters to CETA: the trade chapter, which has already been in effect for several years, and the investor chapter, which would see the introduction of the investment courts system (ICS), allowing corporations to sue governments for a loss of profit. ICS is a one-way system – Ireland has nothing to gain from it. We would lose out to Canadian companies, but also if companies have a subsidiary in Canada, as a lot of US companies do, they could sue the Irish government for any loss of profit in ICS Tribunals, bypassing our national courts. This could create a regulatory chill - the government could be too afraid to legislate in certain areas due to the fear of being sued.

Even though the Paris Agreement is mentioned in CETA, there is no guarantee that if the government was to bring in stronger legislation in line with the Paris Agreement, that it would be exempt from lawsuits from Canadian companies. CETA is also being pushed through in a very undemocratic way. The government tried to have it voted on before Christmas but there was a big push to get it delayed, so the Dáil vote on it should be quite soon.

So, we are against the introduction of the investment courts system and at the very least, we need the vote pushed back so there can be proper public debate on it.

Finally, what impact do you think climate cases can have? Are they just one aspect of the wider climate movement?

They are in some sense. I think they can be very effective and it is very heartening to see them growing across the world. But they are just one tool in the activist toolkit. It’s still important to get in touch with your local politicians and to get out and protest. It’s important to let those in power know that everyone cares about these issues and that it is not just a few environmental organisations that care. It will still be a couple of years before we know the full impact of the climate cases, but we think we’ve achieved a very positive result and we are going to continue to hold the government accountable until they bring out properly ambitious and robust legislation.

“We’re hoping that the Irish case can be an inspiration to others and I think it already has it made headlines across the world.

But we are also hoping that in the same way that we referenced Urgenda in our legal arguments, others can reference the Irish case in theirs.”

Ireland

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The Future of Constitutionally Protected Environmental Rights

By Kyle Egan, JF Law George Orwell claimed that when a phrase suffers from overuse, it loses its effectiveness. Such a claim could be made against the use of ‘landmark judgement’ by law students, who try with conviction to make even the most routine of judgements appear ground-breaking when completing an assignment. But when such a judgment comes around, a truly landmark judgment, it is imperative that its principles are scrutinised and its potential consequences considered. Friends of the Irish Environment v The Government of Ireland is one such case. In his judgment, the Chief Justice deemed the National Mitigation Plan insufficiently specific to comply with the Climate Action and Low Carbon Development Act 2015. This plan was intended to serve as Ireland’s Roadmap to an environmentally sustainable economy by 2050. By striking down this plan, the Supreme Court is forcing the government to show greater commitment in the struggle against climate change. On the other hand, the Chief Justice rejected that the right to a healthy environment exists as a derived right, struggling to see where the boundaries of such a right would lie. This may appear to be a major setback for the protection of environmental rights, but the Court system is only one battleground in the fight for a healthy environment. By rejecting its existence as a derived right, Chief Justice Clarke opened the door for a constitutional amendment, bringing the fight for a healthy environment to the ballot box. In this article, I will consider the steps which need to be taken in order to vindicate these rights, from mobilising the student body prior to the referendum, up to the point when they are invoked before the Courts.

The First Step: Referendum A referendum seeking to amend the Constitution to explicitly mention the right to a healthy environment would ensure the most comprehensive and secure protection of environmental rights possible. Such a move would be unprecedented in the common law world. As it stands, India is the only common law country that guarantees, on a Constitutional level, a right ‘to protect and improve’ the environment. In 2015, Ireland became the first sovereign nation to legalize same-sex marriage by popular vote. While other nations achieved the same result by legislation or through Court judgements, our referendum had a major advantage. Backed by all major parties, and 62.07 per cent of voters, it was made astoundingly clear that Ireland valued inclusion and equality. Marriage equality and environmental protections may be two distinct issues, and to see them brought together in one article is peculiar.

However, this advantage of referenda remains the same. By bringing environmental protections to a popular vote, all political parties would be expected to show their cards. The seeds have been sown by the thousands of students who marched in the ‘Fridays For Future’ strikes during 2019. These strikes illustrated just how important environmental rights are to Irish students. It is students who will demand the referendum be called and while much work is needed to ensure a referendum guaranteeing environmental protections is passed, Ireland’s student body has shown that they are up for this task.

Post-Referendum: How do we vindicate these new rights?

While a referendum may grant Constitutional status to environmental rights, assuming it is passed, the question of how they would be vindicated remains. The Irish Courts’ protection of socio-economic rights to date has been lacklustre. The judiciary’s reluctance to interfere in areas outside of their expertise, giving discretion to the legislature in areas such as taxation, ought to be admired. An overzealous judiciary would bring the Irish government to a grinding halt. Thus, a cautious judiciary is certainly a virtue. That being said, there comes a time when the Judiciary ought to intercede to vindicate the rights protected by the Constitution. Judge Kelly recognised this in D.B v Minister for Justice and T.D v Minister for Education when he granted injunctions requiring the State to build high support units for young people at high risk of suicide. However, with the Supreme Court subsequently

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overturning Judge Kelly’s injunctions, it brought to a halt the potential for socio-economic rights to be vindicated by the courts. If constitutional protections of environmental rights are to have any practical benefit, a new outlook on socio-economic rights will be needed. Transplanting a model of vindication has its risks, however this should not stop us from seeking inspiration from other nations who vindicate socio-economic rights.

South Africa’s simple two-stage test has the most potential for application in Ireland. According to the test, the courts will only require the Government to take action in cases involving socio-economic rights, where the Court holds that they have not taken any steps to realize the rights, or where the Court finds the measures undertaken by the government until then have been unreasonable. While measures which are considered ‘unreasonable’ may appear to be a hopelessly vague part of the test, the Court also defined what unreasonable ought to be construed as in different circumstances. For example, in the case of TD v Minister for Education mentioned above, the government took the very basic step of planning to build high support units. However, that was the extent of the government’s actions on this issue. Under the South African model, Judge Kelly would likely have been correct to grant an injunction ordering the State to build these units. How this test would apply to environmental rights depends entirely on what exactly these protections cover however. As such, it is important that we do not approach the issue of vindication with blinkered-vision, and remain open to new and innovative constitutional methods.

Of all the steps required to ensure environmental rights are vindicated in Ireland, identifying the rights most urgently needing protection is the most crucial step. Assuming that a referendum for inserting the right to a healthy environment into the Constitution has been passed, there are two means in which these rights would be recognised. In the short-term, legislation which enumerates the protections guaranteed under the right will provide certainty, and lay a solid foundation for the right to a healthy environment. There would be little doubt as to whether certain practices would be prohibited under the right to a healthy environment, assuming the existence of well-constructed legislation. The disadvantage of this approach is how static legislation is. Technology often develops quicker than legislatures can adopt. If we consider areas where the environment interacts with human activities and how much they have changed in even a single generation, the problem becomes apparent. Transport is a prime example. The modes of transport used by the average person today were mere fantasy only decades ago.

In order to counter this defect of a purely legislative approach, the courts must be willing to recognise derived rights in this area. The Chief Justice in the FIE case expressed willingness to recognise ‘piecemeal’ environmental rights under the rights to life and to dignity. Unfortunately, the Chief Justice wasn’t clear on what exactly constitutes a piecemeal right. It can only be assumed he intended for incredibly specific measures to be recognised as derived rights. Nonetheless, with the right to a healthy environment existing as a parent right, it would ensure that the courts can be guided by the latest research to guarantee that environmental protections match and adapt to the technology of the day.

At first glance, the path ahead seems clear. A referendum on the issue followed quickly by legislation could see monumental changes in environmental protections in a short space of time. But the difficult battles must be fought prior to this. It has been made exceptionally clear that the longer we delay combating climate change, the more dire the consequences. While all generations are affected by climate change, the students of today are facing a catastrophe if action is not taken immediately. It is students who will inherit the consequences of those currently in power.

The Covid-19 pandemic may prevent rallies of the magnitude seen in 2019, but if any group can innovate, and find new ways to bring the climate change conversation to the table in the current situation, it is the student body.

“We have to start moving beyond targets, we have to start moving beyond aspiration, we have to start moving beyond statements of hope, and deliver signs of action.”

-Jacinda Ardern Photo Courtesy of Alannah Campbell, JF Midwifery

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“All human beings are born free and equal in dignity and rights. Yet, when it comes to the effects of climate change, there has been nothing but chronic injustice and the corrosion of human rights.”

-Mary Robinson, Climate Justice

Ireland

“Climate change is the greatest threat to human rights in the twenty-first century.”

-Mary Robinson

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Photo Courtesy of Matthew O’Shea, JS Law and Business

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The Eagle Interviews Former President Mary Robinson

By Rory Anthoney-Hearn, SS Law Mary Robinson is Ireland’s first female president, former United Nation’s High Commissioner for Human Rights, and current chair of The Elders, founded by Nelson Mandela in 2007. Robinson has been advocating in more recent years under the auspices of environmental law and climate justice, founding the Mary Robinson Climate Justice Foundation in 2010.

Since then, Robinson has held the position of the United Nations Special Envoy of the Secretary-General for Climate Change, incumbent in the position preceding the signing of the Paris Agreement in 2016. Her climate justice book entitled Climate Justice: A Man-Made Problem with a Feminist Solution was published in 2018. In February 2021, Robinson chaired Trinity’s Climate Change Panel Discussion which saw the candidates vouching for the upcoming position of Provost tackle questions on how each would implement climate justice initiatives in Trinity during their decade-long tenure as Provost of the college.

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You emphasise in your memoir and climate justice book how human rights begin at home. In the move from fossil fuel to renewable energy industries, we must ensure a just transition for persons in developing countries. In Ireland, such fossil fuel industries are often based in economically marginal areas like Bord na Móna bogs. What does a just transition look like for persons working in fossil fuel industries who may lose their jobs?

It is very important that Ireland and Born na Móna have taken seriously the importance of just transition to a new fossil fuel free future. I fully agree that people from areas that were dependent economically on Bord na Móna should be able to continue to live there, which is why the report of the Ombudsman on Just Transition on the potential for both clean energy and nature-based jobs is so significant and needs to be implemented in full.

There is no express article in the Constitution relating to environmental law. However, recent judicial activism saw an unenumerated right concerning environmental law recognised in a 2017 High Court case. Is there more scope for the intersection between constitutional and environmental law to further the climate justice initiative? Or should “normal” policies be followed, i.e. the government’s current environmental plan?

As a former president I don’t want to comment in detail on recent case law. But let me say in general terms that while governments have the primary responsibility to have policies that address the climate crisis and keep us at or below 1.5 degrees warming, litigation such as the Irish case you cited, and the more recent French case against the government there, can ensure that governments are accountable and deliver.

In your recent keynote speech addressed to the IDA in January 2021, you spoke about how financial services coming into Ireland should be aligned with the Paris Agreement. Can you expand on how foreign direct investment coming from the European Union or further afield ought to be more conducive to realising climate goals?

I believe financial services and foreign investment will play a very important role in making sure the private sector assumes its responsibility to commit to having net-zero emissions by 2050 at the latest, and working backwards to explain how to reduce and eliminate fossil fuel to achieve this. Mark Carney, former governor of the Bank of England, now UN Special Envoy on Climate Action and Finance, and Boris Johnson’s Financial Advisor for COP26, is leading on this. He has been making the case that investing in net-zero climate solutions creates value and rewards. He is keen to see mandatory, not just voluntary, carbon disclosure. He points out that private finance is judging which companies are part of the solution, but private finance, too, is increasingly being judged. Banks, pension funds and asset managers have to show where they are in the transition to net-zero. Blackrock, the world’s biggest investor, has just made clear that oil companies should disclose their carbon emissions and set targets to cut them, or else they will not invest. This is the latest sign of the rapid reassessment of climate risks by an asset manager.

Your climate justice book was published pre Covid-19, but you pre-emptively write about providing better infrastructures for developing countries to properly store vaccines, which is in keeping with a point from your aforementioned IDA address: “Covid has been like a mirror, it has exacerbated all of the inequalities in our world.” The AstraZeneca-Pfizer oligopoly omnipresent in developed countries remains reticent to waiver their Covid-19 vaccine patent rights to allow developing countries to manufacture generic vaccines. This unjust ‘rich-poor divide’ is exacerbated in a climate justice context as well. Can you speak to this point?

I am glad that the need for equitable access to vaccines has now been recognised by the G7, with an overall commitment to the Global Covax Initiative of USD$7.5 billion, of which President Biden has committed USD$4 billion over two years. The new head of the WTO, Ngozi Okonjo-Iweala, has made it clear that the UK and other countries must not just provide leftover vaccines at the end, but provide vaccines now to developing countries. UNSG Guterres has called the present situation where 130 countries have not received any vaccines at all ‘wildly unfair’.

The USA has only recently returned to the Paris Climate Agreement further to Trump’s 2017 derogation from same, and the 2018 Intergovernmental Panel on Climate Change makes clear carbon emissions are not improving as hoped. Given we are attached to our ‘fossil fuel ways’ couched in profit maximisation and capitalism, do you think the political will exists to bona fide coalesce on a multilateral basis behind achieving a carbon free economy and adhering to nationally determined contributions?

It is welcome news that the U.S. has returned to the Paris Agreement, and that President Biden has appointed a very experienced team both internationally and domestically. However, four years were basically lost during the Trump administration and the climate crisis has become more urgent than ever, and requires full multilateral cooperation. Now the U.S. has to announce its required emission-cutting targets which it has promised to do before the summit Biden has called on Earth Day on 22nd April.

The U.S. also has to make appropriate contributions to the Green Climate Fund and the commitment of 100 billion USD each year to help developing countries adapt to climate. This will help energise the multilateral approach and commitments leading up to COP26 in Glasgow in November.

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“Tackling the issue of climate change presents us with an inflection point in human history - a climate justice revolution that separates development from fossil fuels, supports people in the most vulnerable situations to adapt, allows all people to take part, and, most importantly, realise their full potential.”

-Mary Robinson

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“What I have learned from those who inspired me to tell their stories is that we need to take personal responsibility for our families, our communities, and our ecosystems. And we need to do it with empathy and support for those less responsible for the climate problem, who are suffering more.”

-Mary Robinson Photo Courtesy of Matthew O’Shea, JS Law and Business

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An Interview with Environmental Law Specialist Sinéad Martyn

By Emma Bowie, SF Law Sinéad Martyn is a Senior Associate with McCann Fitzgerald, specialising in planning and environmental law. She is also the secretary and treasurer of the Irish Environmental Lawyers Association.

As an undergraduate law student in Trinity, what drew you to the study of environmental law?

I chose environmental law as one of my elective subjects in fourth year. Yvonne Scannell was teaching the module, and she was an excellent lecturer - she made the subject so practical and interesting. Her class size was relatively small, and she really invested a lot of time into her students, meeting us one-to-one to give us feedback on our essays. She has always looked out for her former students as well, who would often give us guest lectures, such as current High Court Judge Garrett Simons… I would say that Yvonne is responsible for the careers of many environmental and planning lawyers in Ireland! Environmental law is also quite a new area of law, especially in Ireland, which I found really interesting as an undergraduate student. On the planning side, the law is quite codified, but there is also a lot of case law. The subject was so different from any of my other modules, and I thought in my final year that it was something which I would like to pursue.

After your initial law degree, you completed a Masters in Philosophy in Environmental Policy at the University of Cambridge. Why did you decide to pursue a postgraduate degree, rather than beginning your professional training directly after graduation?

I graduated in 2010, which wasn’t a great time for jobs, so that probably influenced my decision to pursue further study. I knew that I didn’t want to do a masters in pure law – personally, I felt like that would have been an extension of my four year degree. While I would have definitely learned something new, I knew that I would not necessarily learn any new analytical skills. Initially, I considered doing a masters in environmental economics, but unfortunately, an undergraduate degree in economics was required to be considered for those courses! I began to research other postgraduate courses which covered environmental economics as well as law, and found that the MPhil in Cambridge had a really broad curriculum. Over the course of the year, I studied economics, planning, sustainable communities, and legal issues relating to land use and tenure issues.

Because there were students on the course from different backgrounds, I got a better sense of the non-legal issues that are associated with environmental law. I think that it is important for anyone considering a career in environmental law to go into the sector with this broader, more holistic understanding, as you are constantly dealing with non-lawyers - ecologists, scientists, developers, activists - people from a range of different backgrounds and interests in a given case or transaction. To be able to understand where everyone is coming from is something which is challenging, and the masters definitely helped in that regard.

Environmental law is a multifaceted area of law which concerns both the private and public sectors - legal experts in this field may work with multinational corporations, government agencies, or in the area of policy research. Why did you decide to pursue a career in corporate law, and what attracted you to working with McCann Fitzgerald?

I think that there is a real stability and community that comes with working for a corporate law firm, and that is what drew me to McCann Fitzgerald in particular. I think the concern from an environmental lawyer’s perspective is that if you’re working for a corporate law firm, you’re working for the bad guy – I guess that is how environmen-

Page 44 Interview tal law is portrayed in movies and the media – and that is not the reality! When I started working for McCann Fitzgerald, I had completed my masters in environmental policy. However, I didn’t go in thinking that I would end up working in environmental law - I was also open to working in other areas from the start, such as banking.

What drew me to working in corporate law was the idea of working as part of a team. There is a very strong “team” atmosphere in all of the corporate law firms, and that is particularly true for McCann Fitzgerald. They are very nurturing in the way that they bring junior solicitors along, and get you involved in exciting transactions and cases from the very beginning of your training. There is a real sense of community, which I don’t think you get from working independently as a solicitor or barrister. When I started working for McCann, I really sensed that family and community atmosphere from speaking to the more senior lawyers, and I continue to get that sense as a lawyer working there today.

Could you tell us about the aims of the Irish Environmental Lawyers Association (IELA), and your role as secretary and treasurer of this body?

Yvonne Scannell was instrumental in setting up the IELA – her influence has really been far-reaching! What is so valuable about the IELA is that it provides an opportunity to network with other lawyers. Environmental law can be very contentious, and the association provides a neutral ground for lots of people who represent different interests to talk openly about issues and learn about where everyone is coming from – an opportunity you don’t necessarily get when you’re on opposing sides of a courtroom! The ultimate aim is to educate each other on issues of environmental law. It is particularly important in an evolving area of law to be able to share your knowledge and resources. The meetings, which typically feature a lecture or presentation from a guest speaker, are attended by a mix of solicitors and barristers. However, some of the most valuable insights come from our non-law members, such as ecologists, activists, and those working in government policy. I think this is really important, as not only are lawyers exposed to new ideas, but the policy-makers can better understand what the people “on the ground” are experiencing.

In my role as secretary and treasurer, I deal with membership of the IELA as well as finances. The association is run by a volunteer committee, and many senior female partners of the Irish corporate law firms are council members. I think environmental and planning law in Ireland is relatively unique in that quite a few of the senior lawyers in this area are female. If you look at the large law firms in Dublin, the majority of their environmental and planning teams are led by women, and unfortunately that is unusual in law. I have always found that the senior female lawyers are very supportive and encouraging of younger women in this field, as they understand the difficulties which they may experience, particularly in balancing family and work life.

“I think the concern from an environmental lawyer’s perspective is that if you’re working for a corporate law firm, you’re working for the bad guy – I guess that is how environmental law is portrayed in movies and the media – and that is not the reality!”

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How does your own work in the corporate sector benefit from your involvement with this collaborative network of environmental lawyers?

It is always valuable to be able to pick up the phone and have a conversation with somebody working in a different area of law - or even outside of law - to educate yourself on areas you may not be familiar with, or to get an objective opinion on something you may be struggling with. It’s helpful for our members to act as a sounding board for each other, especially when a complex piece of legislation is published.

I find that it is always beneficial if you’ve met someone at the IELA before working with them on a contentious case or transaction. It means that you can have a friendly discussion with the other side, and even if the majority of the discussion is frank, I think that it is really important to be able to open and close your conversation with a friendly remark. It’s important for getting jobs done, and also for the mental health of everyone involved. Ultimately as a lawyer, I find it very helpful to pick up the phone to somebody in IELA, to be able to put a face to a name, and have a friendly conversation with somebody that I have previously met. In both contentious and non-contentious matters, I think that having a collaborative network such as the IELA has made me a better lawyer.

In October 2020, the government published the Climate Action and Low Carbon Development (Amendment) Bill 2020, which commits Ireland to achieving a carbon-neutral economy and net zero emissions by 2050. In your opinion, what significant challenges and opportunities will the proposed legislation create for Irish businesses?

It is very important that this kind of commitment has been made. The sentiment of the government at the moment seems to be quite pro-climate policy and sustainable communities, which is great. From the actual Bill itself, I don’t think it specifically creates any significant challenges or opportunities, however it is great that it sets more specific goals than its predecessor, the Low Carbon Development Act 2015. What was important about that Act was that it made climate policy a pillar of decision-making for bodies such as the local authorities and An Bord Pleanála. I would hope that this new Bill will make climate policy an even more central and important pillar of decision-making if enacted… It is so great to finally see climate policy on the government agenda, and it is definitely long overdue.

There are a couple of bills at the moment which I’m hoping will have an important knock-on effect on our energy policy too, such as the Marine Planning and Development Management Bill, which we have seen in various forms for almost ten years now. This bill will overhaul the regulatory system for consenting to offshore renewable energy development, such as offshore wind and tidal energy. Given that there is a very unclear consenting regime at the moment to develop anything in the offshore space, this bill will be very important. It was recently updated in January 2021, so it is one that I am definitely keeping a close eye on. I think that these kinds of bills often have more of an impact on climate policy than the climate action-related bills. From my perspective, I would see more of an impact from the more mundane pieces of legislation, such as planning legislation, which has a real impact on building sustainable communities and making sure climate policy is a central pillar of the planning sphere.

“A nation that destroys its soils destroys itself. Forests are the lungs of our land, purifying the air and giving fresh strength to our people.”

-Franklin D. Roosevelt Photo Courtesy of Katharina Neumann, Law and Political Science

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From Megaphones to Magistrates: Climate Activism is Turning to the Courtroom

By Eoin Gormley, JS Law and Political Science Symbols associated with climate activism might include banners and placards as the visibility of environmental NGOs has come primarily in the form of mass street protests. However, case files and judge’s mallets are becoming equally synonymous with environmental lobby groups in recent years as many have been taking to the world’s courtrooms to demand better climate policy making from their governments.

Climate-related court cases are certainly not alien to the legal system. More localised cases such as tort proceedings pertaining to pollution and environmental damage have been commonplace in both civil and common law jurisdictions for quite some time. So too have more high-profile cases against large corporations- negligent as to the adverse impact of their operations on the planet. However, climate cases of a novel nature have been making their way to courts across the globe. These cases involve claims taken directly against the state, seeking judicial intervention to compel governments to take better action on environmental matters.

The Domino effect of Urgenda Many credit the Dutch Climate NGO Urgenda as being the catalyst for this new type of environmental activism. Netherlands v Urgenda Foundation was first heard in 2013 by a district court in the Hague, and later heard by the country’s Supreme Court on appeal by the Dutch government. Due to the monist legal system in the Netherlands, under which its domestic and constitutional law remains subordinate to binding international law, Urgenda was able to take their government to court based on unfulfilled international legal obligations. They argued that the Dutch government was not doing enough to reduce its carbon emissions, therefore violating its international obligations as laid out in Annex I of the United Nations Framework Convention on Climate Change. In both instances, the NGO’s claim was upheld. The court gave precise orders to the Dutch Government to cut its emissions by at least twenty five per cent within five years, as was asked of them in the UN Framework, instead of the seventeen per cent reduction that the government planned to make. The judgment was described as a “landmark ruling” by James Thornton of Client Earth who predicted that the Dutch Court’s reasoning “will certainly be used by courts in other countries.”

Thorton was proved right as climate activists across the globe followed Urgenda’s lead by taking on their own governments in court. According to the United Nations 2020 Global Climate Litigation report, the amount of climate cases across the globe has nearly doubled since 2017, with annual cases increasing from 884 to 1550. Many of these cases were high-profile victories for environmental NGOs, as activists from countries including the UK, South Africa, and Norway have successfully influenced their Government’s climate policies on the back of successful litigation. For example, as recently as February of this year, the Administrative Court of Paris found the French state guilty of “non-respect of its engagements” aimed at combating global warming, after a group of climate NGOs brought a challenge against the Government on the matter in Notre Affaire à Tous and Others v France.

One of the most high-profile post-Urgenda cases was taken in Ireland by a group of climate activists who became the second NGO in the world to successfully challenge government climate policy in the highest court in the land. Friends of the Irish Environment v Government of Ireland (known also as “Climate Case Ireland”) was decided

Page 48 Legal in July 2020 after it was fast-tracked to the Supreme Court due to its “general public and legal importance.” While the appellants could not appeal to international law as Urgenda could in the Netherlands, they instead mounted a challenge based against the legality of a Government policy instrument, namely the 2017 National Mitigation Plan. The 2015 Climate Act established a framework to produce a “low carbon, climate-resilient and environmentally sustainable economy by the end of the year 2050,” which formed the basis for the establishment of the 2017 National Mitigation Plan to achieve these ends. However, Friends of the Irish Environment claimed that this plan did not go far enough to achieve the goals as laid out in the Act, and should therefore be deemed ultra vires. The seven-person Supreme Court agreed with their contestations, deciding in July that the plan fell “well short of the ambitions laid out in the Act” and should be reformulated and improved by the Government.

Climate Cases: Moral Victories or Game Changers?

This recent increase in litigation can be seen as a new chapter in climate activism. While public pressure and protest has led to climate change becoming a more serious issue on government agendas, protesters have now seized an opportunity to take their grievances into the world’s courtrooms and hold decision-makers accountable for their non-fulfilment of previous climate commitments. Before now, high-profile climate cases have only focused on altering the actions of private entities. Now, it is national Governments that are being put on the stand for their poor environmental policy making. However, whilst these court cases are drawing the attention of both the public and the media worldwide, a question must be asked: are court cases of this kind an effective means of forwarding the green agenda?

It is true that those that take climate cases can often fail to win a ruling that leads to significant, measurable change and achieve only “moral victories.” This is due in large part to courts reluctance to involve themselves with policy making, a function that has been traditionally left solely to the legislative branch of government. Such was the case in Thompson v Minister for Climate Change Issues [2017] when the New Zealand High Court could only go as far as to acknowledge shortcomings in former Environment Minister Paula Bennett’s climate action plan rather than carry out a full judicial review. This was due to the fact that there was a change in Government, and Jacinda Arden’s new Labour government planned to renew their strategy anyway. Similarly, while the Administrative Court in Notre Affaire à Tous and Others v France convicted the French government for its climate policy failings, this only resulted in a symbolic award of one euro to the appellant activists. The Court instead ordered the French Government repay the NGOs by reforming their climate strategy, saying that this would serve as compensation “in kind.” Whether meaningful policy change will occur on the back of this ruling or if it is just another moral victory for an environmental NGO in the courtroom remains to be seen.

However, as seen in the Netherlands and Ireland, courts have been able to force serious policy revisions by striking down legislation and setting specific targets for governments - showing that courts can have a very tangible impact on climate policymaking, and that climate case victories are not always moral victories. Furthermore, cases such as Urgenda and “Climate Case Ireland” set a precedent insofar as allowing the judiciary to assess governments’ responses to the climate crisis through formal legal channels. This makes it possible for activists to legally compel, rather than to lobby for change. Moreover, some might say that it gives climate NGOs a more legitimate basis from which to carry out their work. Proactive climate policies can often be dismissed on political grounds, but with the intervention of an independent judiciary, arguments for improving environmental legislation can be framed as necessary societal and institutional reforms rather than partisan political complaints. Urgenda and subsequent cases have gone a long way to constructing such a narrative.

Although taking a government to Court may not be the silver bullet when it comes to reducing pollution and reaching emissions targets, climate cases have been a worthwhile tool in promoting the green agenda. Urgenda already looks to have had a lasting impact on the near future of climate activism by incentivising many other high profile court cases across the world. Street marches will always have their place in the work of climate activists, but climate litigation will play an increasingly important role in their work in years to come.

We don’t own the planet Earth, we belong to it. And we must share it with our wildlife.

-Steve Irwin

Photo Courtesy of Katharina Neumann, Law and Political Science

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Environmental Destruction & Blood: The True Price of Oil

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By Adaeze Chukwuogor, (Culture of Denial, Activism, Growth of Resentment and Conflict) JS Law and Political Science and Dara Neylon-Marques, (Corporate Impunity), JS Law and Political Science The oil and natural gas reserves found in the Niger Delta are both a blessing and curse for the Nigerian state and its people. While the oil extracted from this region positions Nigeria as the biggest oil producer in Africa, it also results in approximately 40 million litres of oil being spilled across the neighbouring areas. This has had devastating effects not only on the environment but also for the local community, whose livelihood depends on crops, that are growing weaker and a fish stock that has halved in quantity. Locals are forced to drink polluted water, while child mortality has doubled for children whose mothers were living near an oil spill. In addition, the region is home to many gas flaring plants which have led to acid rain, asthma, asphyxiation and skin corrosion. However, the shareholders and directors of oil companies like Shell or Eni have not only refrained from implementing safety measures and standards that could prevent the spillages, but they also have been slow to resolve these issues when they arise. For example, Amnesty International reported an instance in which Eni took 430 days to respond to a spill in Bayelsa State, claiming that “for more than a year, oil leaked out of the pipeline into nearby swampland and rivers, contaminating the water people drink and wash with.” This is not a problem of unforeseeable consequences or inevitable damage but rather a clear disregard for the environment and the livelihood of the citizens of the region. One may reasonably ask: How do they get away with it?

Corporate Impunity In company law, the principles of separate legal personality and limited liability recognise that the company and its owners are distinct. Therefore, they should not be held liable for the company’s actions and debts, as established in the cornerstone case of Salomon v Salomon [1896]. However, at the time of the judgment, Lord Justice Lindley in the Court of Appeal pre-emptively warned about the danger of exploiting these privileges to use incorporation as a front instead of as a means to create valuable economic activity for society. This concern is particularly relevant to the situation in the Niger Delta. European multinational corporations such as Shell enjoy billion-dollar profits from its subsidiaries in Nigeria yet bear none of the responsibility for the negative environmental externalities they produce, as they are considered a separate legal entity. The legal separation between the parent and the subsidiary means that those affected by the oil spills can only seek remedies in the Nigerian jurisdiction as that is where the subsidiaries are legally based. This has two main implications. The profits of the subsidiary are commonly absorbed by the parent, so they will have a smaller pocket from which to pay reparations. Furthermore, it is easier for the subsidiary to avoid the rule of law in Nigeria due to the rampant corruption that links oil production and politics, as well as the loosened environmental protections in Nigerian law. This is exacerbated by the economic barriers that citizens might face in sourcing legal representation, especially considering the huge legal machineries that companies can afford. The parent/subsidiary strategy has become increasingly useful for multinational companies in an attempt to distance themselves from the human and environmental externalities they incur.

Nevertheless, it appears changes are arising. Following the case of Vedanta v Lungowe [2019], the UK Supreme Court recently accepted in Okpabi v Royal Dutch Shell Plc [2021] that those in Nigeria affected by the environmental harm caused by Shell could seek damages in the UK. By doing so, the Court recognizes that there is a triable issue in the claim that the UK parent company owed them a duty of care due to its control over the Nigerian subsidiary which was causing the environmental damage. While it remains undecided whether the duty did in fact exist in this particular case, another recent ruling leaves room for hope. In January of this year, the International Court of Justice ruled in favour of the plaintiffs in Four Nigerian Farmers and Milieudefensie v Shell [2021]. The Court held that Shell owed the plaintiffs a duty of care due to the activities of its subsidiary in the Niger Delta and that their

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omission to effectively respond to the oil spills constituted a breach of such a duty. Consequently, the company has been required to provide compensation take responsibility for cleaning current spills and preventing future spills.

While we can welcome the decision as a step towards holding companies accountable for their contribution to environmental damage, this is tempered by the court’s limited jurisdiction. It is up to Nigeria to enforce the ruling and considering the relationship between oil and politics in the country, there are still grounds for concern.

Culture of Denial, Activism, Growth of Resentment and Conflict It would leave a lacuna in the story if we do not ask why oil companies haven’t been held to account in the very country they operate in. The following section will elaborate on the difficulties that arise in the Nigerian political system and the influence of corruption on the degradation of the environment.

The Nigerian elite, many of whom are politicians and community leaders gain from the production of oil in areas such as Niger Delta. Scholars such as Nane have highlighted the emergence of a culture of denial of the magnitude and effects of the oil spills. This undermines the damage and destruction caused by the activity of oil companies like Shell, while redirecting blame disproportionately towards militant groups, namely, MEND (Movement for the Emancipation of the Niger Delta ) who are dedicated to exposing and combatting the suffering of Niger Delta people caused by oil spills and gas flaring.These elite pocket a substantial amount of profit from the production of oil which withhold potential funding for the development of local communities. The citizens are then left to suffer in poverty, while their environment and their livelihood is destroyed by oil spills that seep into their crops and water supply.

Former President of Nigeria Ibrahim Babangida took approximately $12 billion from the windfall profits caused by the hike in oil price in the 1990s. This is not a unique case as other Nigerian officials have been found guilty of similar fraudulent activities. For instance, former Nigerian Petroleum Minister, Dan Eete who illegally facilitated the transfer of $1.1 billion from Shell to his company. Such officials are incentivised to protect oil companies causing damage to the environment and violating human rights.

Attempting to prosecute is often futile as the victims of these actions generally cannot afford to pursue legal action attempting to do so is a risky venture. Ultimately, the elite in concert with the oil companies strategically disguise the extent of damage caused despite ample evidence of the negative effects of oil production on the neighbouring communities. Likewise, they blame a significant proportion of the spillages on the militants who have tampered with the oil pipelines. According a to a UNEP investigation funded by Shell, found that only 10 per cent of the oil spills in Niger Delta were caused by Shell’s equipment failures. NGO’s such as Amnesty International have questioned the veracity of these claims.

Efforts to bring the oil companies and the government to justice have been continuously quashed. Resentment in the neighbouring communities in the Niger Delta area resulted in the emergence of resistance towards the oil companies. This was in the form of both peaceful protests and militancy. All of such were silenced. Environmental activist, Ken Sarowiwa spearheaded a non-violent movement, The Movement for the Survival of the Ogoni People (MOSOP).

His goal was to highlight the human rights violations perpetrated by the oil companies and enabled by the Nigerian government. He was outspoken about the unwillingness of the Nigerian government to implement environmental protection laws. Amidst his campaign for justice, he was accused of inciting the murders of Ogoni chiefs and he, alongside eight other MOSOP leaders were executed, triggering international uproar. In response to militant action, the Nigerian government established a Joint Task Force that perpetrated sexual violence and killed innocent people in Niger Delta, a gross violation of human rights.

To this day, victims continue to seek adequate remediation and protection for their local environment. The environmental and human crisis in the Niger Delta is not a problem that can be tackled merely though the legal route given the absence of rule of law, often substituted by the rule of corruption. Until we see change in the political will to tackle corrupt norms and practices, Nigerian society will be plagued with injustices like the Niger Delta Oil crisis.

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McVeigh v Rest - A Gateway to a New Era of Australian Climate Change Litigation?

By Katharina Neumann, JS Law and Political Science and Fergus Maclean, Contributing Writer, Bachelor of Arts and Bachelor of Business Administration at The Australian National University Just as the amount of litigation concerning climate change disputes has risen, so have the avenues that enable such litigation. While areas such as international and national human rights law, tort law and consumer law have proven to be successful in jurisdictions around the world, the recent Australian case of Mcveigh v REST sheds light on an emerging avenue of climate litigation employing corporate disclosure. A route which has long lurked in the shadow of other more traditional climate litigation debates. As corporations around the world are becoming increasingly aware that the tangible and transitional risks of climate change pose a genuine threat to current business models, and companies, shareholders and consumers are responding. Corporate action on climate change and acting in shareholders’ best interests are no longer considered to be mutually exclusive aims.

McVeigh v REST nudges financial institutions and businesses in the right direction, indicating that in regard to the increasingly pressing climate emergency the consideration of climate change in the context of businesses’ strategic and operational risk management should be established as industry best practice. In 2018, Mark McVeigh commenced proceedings against REST (Retail Employees Superannuation Pty Limited). He claimed that the superannuation fund, one of the largest in Australia, failed to adequately disclose its strategy to manage climate change risks and breached its statutory disclosure requirements as well as its fiduciary duties by failing to adequately consider the risks of climate change when managing large financial assets. Although McVeigh v REST was settled three days before the federal court hearing and thus does not create legal precedent, the settlement of this case indicates that there is merit to the legal argument that there is a link between climate change-affected asset management and shareholder rights. Does McVeigh v REST usher in a new avenue of Australian and potentially international climate litigation? And how will this case affect Australian and possibly global business?

In Australia, superannuation funds (“super”) are a part of a mandatory retirement scheme in which 9.5 per cent of a person’s salary is deposited each working year. Individuals typically choose a fund based on factors such as performance and commission. The fund will then pool these financial resources into various investments over time, using compounding through dividends, interest or capital gains to grow the overall balance. As a mandatory retirement scheme, “super” is closely regulated by the government to ensure the consistent and appropriate use of funds and to reduce risk, which can be roughly defined as the methods of control used to mitigate the negative externalities of uncertainty. There remains little understanding of the risks and opportunities posed by climate change for these funds, as the market and the world more broadly are currently undergoing significant changes in areas such as electric vehicles, carbon conversion strategies, as well as international and domestic climate policy.

However, generally speaking climate change presents two specific types of risks to the economy: physical risks resulting from increased frequency of extreme weather events, rising temperatures and sea levels causing disruptions to business and enterprise; and transition risks stemming from the rapid repricing of financial assets resulting from changes in policies or shifts in consumer and investment speculation, affecting market capitalisation and the overall stability of industries. Mr McVeigh leveraged the uncertainty in the connection between financial risk and climate change and a lack of risk mitigation strategy by his superannuation fund as a basis for his case against

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REST. The claim was grounded in the fund’s obligations under the Corporations Act 2001, and the Superannuation Industry (Supervision) Act 1993. Under the Corporations Act 2001 super fund beneficiaries are entitled to request information needed to make an informed decision about the management and financial condition of the fund.

The plaintiff alleged that the information provided by REST on knowledge of, opinion on and actions responding to REST’s Climate Change Business Risks did not fulfil the obligations established under the Corporations Act. Additionally, it was alleged that the defendant had violated the Superannuation Industry (Supervision) Act 1993, requiring trustees to act with care, skill, and diligence, and to perform their duties and exercise their powers in the best interests of their beneficiaries. Mr McVeigh argued that a prudent superannuation trustee would have required its investment managers to provide the type of information requested.

The nature of the case at hand is particularly interesting in the light of the broader climate litigation framework as it does not involve a direct demand for action on holding business accountable, but is rooted in the disclosure of climate-related information; establishing an indirect avenue where reputational concerns regarding unsatisfactory environmental standards lead to the adoption of environmental standards. The outcome of the case exemplifies the efficacy of this mechanism. Although the case was settled before a trial was held, REST acknowledged that “Climate change is a material, direct and current financial risk to the superannuation fund across many risk categories, including investment, market, reputational, strategic, governance and third-party risks.” To address this risk, REST agreed to implement a net-zero carbon footprint by 2050 goal for the fund, to measure, monitor and report climate progress in line with the Task Force on Climate-related Disclosures, to ensure investee climate disclosure, and to publicly disclose portfolio holdings, among other commitments.

The case sets a ground-breaking foundation, as members of Australian superannuation funds may now feel empowered to demand more from their super funds in terms of disclosure and assessment of climate-related risks on their investments. Businesses are likely to come under increasing pressure from internal and external stakeholders to have appropriate measures in place to manage climate change and ESG risks in order to continue to benefit from super investment. Although sustainability risk is a relatively new concept, referring to environmental, social and governance events or conditions, the case clearly signals enhanced disclosure of climate change and ESG risks, as

“The nature of the case at hand is particularly interesting in the light of the broader climate litigation framework as it does not involve a direct demand for action on holding business accountable, but is rooted in the disclosure of climate-related information.”

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well as moves to set concrete objectives to achieve net-zero carbon emissions. What can be inferred from McVeigh v REST is that investment funds must be aware of these changes and have protocols in place to mitigate any losses incurred, particularly in Australia where it is mandatory for financial contributions to be made and losses have the potential to significantly and adversely impact retirement funds.

The fact that REST committed to these substantial goals in the absence of a court order also indicates that disclosure law is a particularly compelling avenue when it comes to climate change litigation. Although the “misleading and deceptive” cause of action in McVeigh is similar to “duties of reasonable care” rooted in tort law, it seems that the public disclosure route is far more convenient and prone to success. Since the success of Urgenda in 2015, there have been recurring debates about the potential for, and problems involved in, allowing similar litigation based on tort law in Australia. Claims rooted in negligence or nuisance demand at a minimum a demonstration of actual harm and commonly a more extensive demonstration of causality. The most well-known environmental law cases such as AEP v Connecticut and Comer v Murphy Oil have failed on these particular elements in the past.

The public disclosure avenue seems like a convenient method to circumvent these legal requirements and achieve the same or similar outcomes in cases that might have failed if they were rooted in tort law.

McVeigh is by no means the first litigant to rely on this avenue, with attempts being made in various other cases of this nature However, no case had been successful up to this point. The first case about climate-related financial risk was filed in the US, for alleged misrepresentations to the public and investors about how Exxon accounted for the costs of climate change regulation but failed. Similarly, a shareholder claim brought in 2017 against the Commonwealth Bank of Australia (CBA), argued that climate-related risks were material financial risks to the bank and that the bank had breached the Corporations Act 2001 because of inadequate disclosure of this risk. The case was withdrawn after the CBA included references to climate risk in its next annual report. In September 2018, the Australian Securities and Investments Commission issued a set of recommendations in its report, highlighting that managing climate risk is an important governance and disclosure issue.

Although it would have been more interesting and meaningful from a legal perspective if the Australian Federal Court had adjudicated on the matter in McVeigh, the case and the overall developments in the Australian jurisdiction suggest that the consideration of climate change-related risk is finally evolving as industry best practice, and that statutory disclosure regimes could be an emerging frontier for climate litigation in Australia.

ECtHR Climate Litigation: Youth Taking the Lead Once Again

By Jacob Hudson, JF Law and Political Science One of the most powerful characteristics of the fight for climate action has undoubtedly been its age profile.

From Greta Thunberg, the teenage stalwart of the modern environmentalist movement, to the millions of students around the world who took to the streets over climate change inaction. It is apparent just how passionate and engaged the global youth are in protecting their own futures. Now they have taken yet another important step in the field of climate litigation on the floor of the European Court of Human Rights (ECtHR), with the crowd-funded support of the Global Legal Action Network (GLAN), a not-for-profit human rights law firm located in both London and at the Irish Centre for Human Rights in NUI Galway.

On November 30th 2020, the ECtHR allowed the hearing of a case brought by six Portuguese children and

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young adults (aged between 8 and 21) against thirty-three members of the Council of Europe. The applicants contend that the EU 27, Norway, Russia, Switzerland, Turkey, Ukraine, and the United Kingdom are in breach of their obligations under Articles 2, 3, 8, and 14 of the European Convention of Human Rights (ECHR). Remarkably, the case has been ‘fast-tracked’ to the ECtHR, without fulfilling the admissibility criteria of exhausting all ‘domestic remedies’ as outlined in Article 35 of the Convention. The plaintiffs argue that it would be unreasonable for them to take each of the thirty-three countries to court in their own domestic legal systems. Nonetheless, this decision to fast-track by the ECtHR is as remarkable as it is significant – climate litigation is clearly becoming increasingly salient in human rights law. Although this may be the first climate case in front of the ECtHR, other cases have been springing up in front of the domestic courts of European nations. In the Dutch Supreme Court in 2019, the organisation Urgenda, won against the Netherlands for their violation of the ECHR in failing to meet their self-imposed emissions targets. Furthermore, The Irish Supreme Court case Friends of the Irish Environment v the Government of Ireland was decided in favour of the environmentalist group in July of 2020. Therefore, many argued a case of climate change litigation before the ECtHR was bound to appear soon.

In their application form to the Court, the plaintiffs accused the respondent states of failing to sufficiently reduce their territorial emissions and, to take responsibility for the impact of their own emissions overseas. The latter is an integral part of their argument. As former Secretary General of the United Nations Ban Ki Moon once said, “emissions released anywhere contribute everywhere.” The fact that the carbon emissions of the 33 respondents are actively causing rising sea-levels, wiping out small island nations of the Pacific Ocean is no doubt a central motive for this case. The applicants argue that the a) export of fossil fuels, b) import of goods containing embodied carbon, c) fossil fuel extraction and financing of it, and d) allowing of entities within their jurisdiction to contribute to the release of emissions overseas constitute a breach of Articles 2, 8 and/or 14 of the ECHR. Article 2, the right to life, and Article 8, the right to respect for private/family life, are the most commonly plead breaches in environmental litigation in domestic courts. Climate change poses a palpable threat to one’s life; increased flooding due to rising sea levels and stronger storms is one example of this. What is particularly pertinent in this case is the backgrounds of the applicants. All of whom were affected by the 2017 forest fires in northern and central Portugal which left 121 dead and half a million hectares of scorched land in its tracks. Furthermore, as explained in the application, climate change can also expedite the spread of fatal diseases such as malaria and dengue fever, no more so than in the developing world.

Similarly, Article 8 is pleaded in respect to the effect on the lives of the applicants stemming from climate change, especially in relation to the Portuguese forest fires. The youths contend that climate change has and will infringe on their ability to exercise, enjoy their natural surroundings, and sleep. In Tatar v Romania, the Court declared Article 8 provides for positive obligations upon states to ensure “a healthy protected environment” for those within their jurisdiction. Of course, there is no case law in climate change disputes for the ECtHR to rely on.

However, Tatar and Budayeva v Russia, which imposes positive obligations on states to prevent natural disasters, could be persuasive for the court.

The final provision of the Convention allegedly breached that is outlined in their application form is Article 14, the prohibition of discrimination; in particular on the grounds of age. They argue climate change disportionately affects the youth of the world, as they will live to see the devastating effects in the future. As elucidated upon by GLAN, the youngest applicant, Mariana, will be eighty-eight years old in the year 2100. By then, if climate change proceeds at the current rate, temperatures will be 4°C hotter than the pre-industrial world. This could lead to month-long 40°C heatwaves every summer in Portugal. For these reasons, it is said that the actions of the respondents amount to age discrimination when read with Article 2 and 8.

In addition, the Court also raised the possibility of a breach of Article 3, which entails the prohibition of torture and inhuman/degrading treatment. It is not unusual for the Court to introduce another article into the mix (under

Page 56 Activism the principle of iura novit curia - “the court knows the law best).” However, what is unorthodox is that Article 3 that was raised – an unconventional avenue to proceed in climate litigation, as of yet. In the past, the ECtHR has held a high bar for Article 3 disputes and in the remit of climate change where there is no case law to rely upon, it will be interesting to see how the Court will ajudge their own pleading.

In Bouyid v Belgium, the minimum level of severity for a breach of Article 3 amounts to “actual bodily injury or intense physical or mental suffering,” and in absence of this, if treatment “humiliates or debases an individual showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance.” These feelings of fear stemming from climate change-induced natural disasters, such as the forest fires of Portugal, could be argued on behalf of the plaintiffs to arouse “fear” and “anguish” and indeed be “capable of breaking an individual’s... physical resistance”, especially as these events become increasingly widespread. Furthermore, in Dogenay v Turkey, “a sense of vulnerability” amounted to be a factor in contributing to a breach. The Court must ask itself the question – “are the applicants, as children and young people, particularly vulnerable to climate change?” Indeed, they might be.

It was decided in Atesoglu v Turkey that children were especially “vulnerable,” reducing the threshold for breaches of Article 3.

Furthermore, the Court has made it clear on numerous occasions that there are positive obligations upon states to adequately prevent breaches of Article 3. In Volodina v Russia, the Court required states to establish “adequate legal frameworks affording protection against ill-treatment of what the authorities knew or ought to have known.”

Perhaps this could mean, within the remit of climate litigation, states must introduce adequate regulation to reduce emissions, so as to prevent the suffering of individuals in their jurisdiction. What exactly does this mean? Well, in the application form, it is intended that anything less than the 1.5°C cap in growth in global temperatures of the Paris Climate Agreement should be enough to cause breaches of the ECtHR. It is not unusual at all for the Court to consult other sources of international law and the Paris Agreement could be a useful instrument in determining whether states have fulfilled their positive obligations.

However, with the sheer amount of cases before the ECtHR, it looks like we will be waiting a while for a judgement on this particular case, despite its “fast-tracking.” Nonetheless, it is an important judgement for European climate litigation. The introduction of Article 3 is a novelty in these cases, but the fact it was submitted by the Court, shows at least some chance of success on these grounds. What is a great inspiration to us all is the youth of the applicants. It proves that access for justice is for all, especially on such crucial issues that decide our own futures and that of the Earth. There may be high bars for Catarina, Cláudia, Martim, Mariana, Sofia, and André to overcome but may their passion, resilience, and dedication permeate through.

“From Greta Thunberg, the teenage stalwart of the modern environmentalist movement, to the millions of students around the world who took to the streets over climate change inaction.

It is apparent just how passionate and engaged the global youth are in protecting their own futures.”

“Right here, right now is where we draw the line. The world is waking up. And change is coming whether you like it or not.”

-Greta Thunberg

Photo Courtesy of Matthew O’Shea, JS Law and Business

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Photo Courtesy of Samantha Tancredi, JS Law and Political Science

Interview

“The greatest threat to our planet is the belief that someone else will save it.”

-Robert Swan

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The Complicated Relationship Between the U.S. and the Paris Climate Agreement

By Niamh Stallings, Masters in International Comparative Law One of the most significant challenges facing the international community in the twenty-first century is global warming. Climate change poses a major threat to the survival of our planet, and its impacts are becoming increasingly more apparent: our summers are experiencing more rainfall, polar ice caps are disappearing, and forest fires frequent arid regions such as Australia and California. These are only a few of the effects of climate change.

In 2015, the United Nations established the Paris Agreement to respond to the global threat of climate change by reducing carbon emissions and fossil fuels. The Agreement came into force in 2016 and has since been ratified by 196 countries. The Paris Agreement is an international non-binding agreement of climate change action. By signing up to the Agreement, parties are promising to do their part in reducing greenhouse gas emissions. Each country sets its own goals for reducing greenhouse gas emissions and they are encouraged to be as ambitious as possible. State Parties are afforded flexibility in how they wish to achieve individual climate change goals. The Agreement has a robust system for reporting and collecting targets of the State Parties and requires Parties to declare their targets every five years.

In September 2016, former U.S. President Barack Obama used his executive power to sign the Paris Agreement at the end of his presidential term of office, as he was unable to secure congressional approval because his political party was not the majority in either branch of Congress. This unfortunate fact made it relatively easy for his successor, Donald Trump, to withdraw from the Agreement as it was never ratified by Congress. The U.S. withdrawal from the Agreement meant that it was no longer bound to its promise to reduce greenhouse gas emissions, and the Trump administration subsequently tampered with or dismantled over 100 national environmental laws. For example, the Trump administration altered how costs of pollution to human health and safety are conducted under the Clean Air Act which weakened government authority to issue clean air and climate change rules.

The Impact of U.S. Withdrawal The Paris Agreement fundamentally confirms the direction of international cooperation in responding to climate change. The U.S. withdrawal from the Agreement shocked international governments and environmental non-governmental organisations. Trump’s denial of climate change tarnished the international reputation of the U.S. as a key player in global environmental policy Obama’s administration had committed the US to the Agreement and promised to abide by its terms. Within a year, the U.S. government under the Trump administration turned its back on the Agreement, losing international credibility and standing.

The U.S. is the second largest emitter of greenhouse gasses in the world. Remarkably, 10 per cent of the U.S. greenhouse gas emissions is methane. Methane greatly affects the environment in that it warms up the atmosphere.

This is a fundamental problem because higher temperatures lead to worse types of disasters such as storms, heat waves, floods and droughts. A warmer climate creates an atmosphere that can gather, retain and drop more water, changing weather patterns in a way that wet regions become wetter and dry regions become dryer. The U.S. climate policy has a strong hold over global climate governance. The failure of the U.S. to adequately regulate greenhouse gases will have devastating effects at a global level. Therefore, combatting climate change must be a global effort.

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Another consequence of the U.S. withdrawal from the Agreement is a decrease in funding towards fighting climate change. According to the financial budget of the U.S. in 2018, the U.S. slashed its budget for international climate activities by $10.9 billion. This meant taking away all of the funding from the Clean Power Plan, a set of regulations aimed at reducing greenhouse gas emissions in power plants. It also meant defunding climate change research. The U.S. also stopped contributing to the U.N.’s Green Climate Fund when it had previously promised to give $3 billion. This further illustrates the lack of commitment on the part of the U.S. towards combatting climate change.

The Prodigal Son In January 2021, following the inauguration of Joe Biden, the U.S. re-joined the Paris Agreement. President Biden has affirmed that tackling the climate crisis will be of his top priorities as president. He has promised an enforcement mechanism to ensure net-zero emissions by 2050 and has designed a $2 trillion clean energy plan.

The President has also signed an executive order demanding all agencies to review any actions that are inconsistent with his climate change policies.

Biden has signed new eco-friendly executive orders, some of which have revoked executive orders of Trump.

In particular, Biden has abandoned Trump’s orders that weakened the requirements to reduce greenhouse gas emissions as well as those that promoted offshore drilling. He has also placed a moratorium on the leasing of fossil fuels for government resources, ordered agencies to stop any government aid that incentivises fossil fuel activities and directed federal agencies to acquire electric and carbon-free cars.

Conclusion Global warming is an ongoing crisis that threatens the survival of humans, animals, plants and the planet in general. Global warming has caused climates all around the world to change. This climate change has led to more frequent and intense droughts, storms and heat waves which can directly harm people and animals. Global warming is mostly caused by human activity, such as the burning of fossil fuels like coal, gas and oil. The burning of fossil fuels then creates greenhouse gasses such as CO2 which then gets trapped in the atmosphere. Therefore, these activities, amongst others which enable the growth of global warming, should be regulated. States must take steps to reduce greenhouse gasses as fast as possible. The Paris Agreement created State responsibility for mitigating the effects of climate change. It provides that States have the obligation to create ambitious goals and measures to reduce their emissions of greenhouse gasses.

Since the start of 2021, Joe Biden has made it clear that fighting climate change will be a major priority of the U.S. After re-joining the U.S. to the Paris Agreement, Biden has committed the country to reducing greenhouse gas emissions to zero by 2050. Biden aims to achieve net zero emissions through clean energy policy incentives, energy efficiency projects and public works programmes. It remains to be seen whether Biden’s successor will follow through on the current plans of the U.S. to fight climate change. This is why President Biden should pursue climate change policies through legislative action during the first two years of his term, when both houses of Congress are represented by a majority of his political party. Legislative action should include but not be limited to: decreasing carbon pollution; combatting forest destruction and helping transition developing countries to clean energy sources such as wind and solar energy. To conclude, it is essential that Biden gets climate change bills passed because climate change is an urgent issue and must be regulated to reduce its devasting effects.

“Every drop in the ocean counts.”

-Yoko Ono

Photo Courtesy of Alannah Campbell, JF Midwifery

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Policy

The Dichotomy of Interference: Voluntourism and Outsourced Emissions

By Ellen Hyland, JS Law and Political Science “There is no planet B” encapsulates the recognition of climate change as an issue common to every citizen on earth. The Paris Agreement was signed in 2015 by 196 parties and emphasises the need to reduce global emissions and combat climate change. It also highlights, in particular, the plight of developing countries, who are frequently mentioned in the Agreement for two main reasons:

1. Developing countries are more vulnerable to the effects of climate change.

2. Developing countries are more likely to depend on heavily-polluting industries.

Although the facts above are in part an unfortunate side effect of poverty and the natural environment, it is important to note that interference from developed countries and economies can perpetuate these realities. This article will explore two examples: one benign and the other more serious.

Developing Countries are more Vulnerable to the Effects of Climate Change 2010 marked a year of devastating natural disasters, with two major earthquakes hitting Haiti in January, and New Zealand in September. Both earthquakes were of a similar magnitude (7.0 and 7.1 respectively), both were shallow, and both hit near large population centres. In spite of this, Haiti’s earthquake killed an estimated 230,000 people, while in New Zealand one person died of a heart attack and two were seriously injured. Many attribute the dramatic difference in casualties to building code regulations, and the poor construction of buildings in Haiti that led to their collapse during the earthquake. This example highlights the fact that even where the strength of the natural disaster is the same, less developed countries suffer more. In respect of climate change, developing countries are particularly vulnerable because not only are they situated in locations that are more at risk to the effects of climate change, but they are also disproportionately ill-equipped to deal with its side effects.

A 2018 Guardian article on the harm caused by ‘voluntourism’ explains how Western charitable organisations that send unskilled volunteers to developing countries to undertake construction projects can maintain poor building development. Unskilled labour will always produce poorer results than skilled labour. The money would seemingly be better spent on funding public works, education, and training for the residents of the community. It follows that if the effects of climate change are to be mitigated by providing for strong foundational structures that can withstand extreme weather events, we need to rethink the types of construction aid that is needed and realise that money is better spent on sending skilled workers to disadvantaged areas rather than volunteering ourselves.

Building long-lasting, durable structures should be a priority for any person concerned about climate change.

This example may seem benign when compared to the catastrophic effects of climate change, but it is arguably representative of a mindset that assumes that because a certain policy or outreach project is well-intentioned, it is good. This mentality may hinder the global effort to combat climate change.

Developing Countries are More Likely to Depend on Heavily Polluting Industries A 2018 report on the “carbon Loophole” explains that around 25 per cent of the global carbon footprint comes from imported goods. In a world characterised by international trade and a growing global economy, this may seem innocuous to the topic at hand. It is submitted that this figure of 25 per cent, however, encapsulates the

Page 66 Policy essence of why those developed countries that are signatories to the Paris Agreement need to be held accountable for their emissions and consequences that arise beyond their national borders.

The “carbon loophole” describes a situation where countries with highly regulated environmental controls do not cut their emissions, but rather outsource them to countries with underregulated environmental controls which are less economically developed. The aforementioned report explains that under the Kyoto protocol – and now the Paris Agreement – these countries are able to claim that they have cut their emissions in order to meet their targets, while maintaining their emissions abroad to help with infrastructure and other projects. In a New York Times article, Brad Plumer explains that between 1990 and 2015, Britain lowered its national emissions by 33 per cent, but in counting the emissions created by imported materials needed to build things like cities and cars, Britain’s emissions actually increased in this period.

Many studies have initially found a positive correlation between foreign direct emissions and carbon emissions, and then a decline as the country is better able to handle environmentally-sound manufacturing and business.

Chor Foon Tang and Bee Wah Tan, for example, describe this effect in Vietnam in a 2014 study. They recommend that foreign investors adopt clean technologies to help them curtail emissions and sustain economic development at the same time. These outsourced emissions are not due to necessity or lack of resources; those same companies that can transfer pollutants are also capable of transferring cleaner, more sustainable means of conducting business.

The Dichotomy To treat less affluent nations as though they are independently creating their own problems when it comes to climate change is potentially damaging. Having said that, it would be ignorant to posture that all interference from developed countries has been detrimental.

The Paris Agreement obligates developed countries to assist developing countries to reduce their emissions, and Article 9.1 even stipulates that “[d]eveloped country Parties shall provide financial resources to assist developing country Parties”. Countries are fulfilling these obligations in unique ways, as a 2018 report from the UN describes how Lithuania paid for six schools in Georgia to have solar power, and New Zealand assisted with a large water and sanitation project in Kiribati. It is reasonable to suggest that projects like these are not just throwing money at the problem in the hopes that climate change will go away - they are finding specific solutions that will do good.

There is therefore a dichotomy that exists between the methods of interference in developing countries when it comes to climate change. Misplaced aid in construction projects and the outsourcing of emissions to developing economies is harmful, but it would be remiss not to also acknowledge the projects that do help communities that suffer from the effects of climate change. It is posited that this phenomenon can be curtailed through education on how to help developing countries in effectively preparing for the ramifications of climate change, and how to stop pollution outsourcing and provide for sustainable trade. When planet A is on fire, there should be no argument over whether water or kerosine is more appropriate to extinguish the flames.

“When planet A is on fire, there should be no argument over whether water or kerosine is more appropriate to extinguish the flames.”

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Fashion

Fast Fashion, the Environment, and the Need to Stop the Cycle

By Doireann Minford, JF Law and Political Science The Fast Fashion Industry Every year, 300,000 tonnes of textile waste are incinerated or sent to landfill sites. Burberry alone burned £28.6 million worth of goods in 2017. The fast fashion industry is a method of design, manufacturing, and marketing with the goal of rapidly producing goods in order to maximise profit. It has turned the traditional two fashion seasons a year into an unsustainable fifty-two ‘micro-seasons’ annually in response to the highly competitive nature of high-street brands. Clothing may seem cheaper than ever, but wherein lies the true cost? Industry-wide water consumption, emissions, and chemical use were ignored as contributors to the global climate crisis until recently.

The fast fashion industry is responsible for an estimated 10 per cent of global carbon dioxide emissions every year.

Should the burden of solving these problems be left to environmentally-conscious consumers? Or is it arguably time to use policy, legislation, and governmental initiatives to end the climate crisis the industry has contributed to?

The Demand for Inexpensive Clothing There is no doubt that sustainable clothing is expensive. It is produced with ecological integrity as well as sustainability in mind and, when compared to well-known high-street brands, it is just not as accessible. Brands such as Zara have promised that by 2025, their clothing will be fully sustainable. While this may point towards a trend in high-street brands attempting to atone for their previous transgressions against the environment, this trend will not be met well by all.

When affordable clothing shops such as Penneys reopened after the first lockdown last year, many commentators were quick to criticise the people queuing outside these stores for the chance to shop in person for the first time since March. All too quickly these critics were reminded just how fast children grow. In a time where one in five people in the country were on some form of unemployment payment, it was assumed that everyone had access to online stores to avail of their shopping needs. For many, this is all they could afford or all that they were willing to buy. Penneys broke their daily sales records twice in the days that followed reopening, showing us that the demand for low-cost clothing will never reach zero.

The Exploitation of Workers The exploitation of both humans and the planet accounts for the majority of these businesses’ profits. They can demand extreme turnarounds for new products in order to feed the West’s greed without any regulation by locating their factories in countries with poor records for workers’ rights such as India, Bangladesh, and Vietnam.

Workers, predominantly women and girls, are forced into these factories for wages of less than 15 cent an hour for long shifts in perilous conditions. In one investigation of a factory in India, it was found that no worker was part of a trade union and 99 per cent of the women and girls interviewed were being paid far less than the Indian minimum wage.

“The fast fashion industry is responsible for an estimated 10 per cent of global carbon dioxide emissions every year.”

Page 68 Fashion While it is easy to take the moral high ground and argue that these factories are halfway across the globe and that we can’t control business practices inside of them, every time we buy goods from a fast fashion brand, we are complicit in modern-day slavery. The problem may even be closer to home than was once presumed. An investigation found that in Leicester, a factory that supplied clothing to the brand Boohoo was allegedly paying staff £3.50 an hour, far below both the living and minimum wage in the UK. A company that recorded extremely high sales due to the move to online shopping at the start of the pandemic allegedly still made its factory workers come into work while sick with the Coronavirus. While the business has launched a review to eradicate “malpractice” with regard to its supply chain issues, the evidence lies in the wording. The company does not see the exploitation of workers in 2020 as a horrific breach of their power, both as a corporation and as an employer, but rather a poor business move that can be corrected with a review instead of institutional change. On the legislative side, countries like India and Britain are not lacking. They have laws stipulating a minimum wage and working hours. But when it comes to the actual implementation of this legislation, the truth about the power of these corporations comes to light.

The Environmental Impact The textile industry still represents 10 to 20 per cent of pesticide use according to the World Resources Institute. To irrigate crops like cotton, one of the most commonly used fabrics in the industry, a vast amount of water is needed, with the majority of retailers opting to dispose of it with the ‘open-loop cycle’ method in which no water is cleaned or recycled but rather is let pollute both water and land. Stores may attempt to recoup conscious consumers’ respect by bringing out ‘green’ collections. But this is simply a marketing ploy. To counteract the environmental impact as well as the exploitation of workers, a slow approach to fashion is needed. The “fifty-two micro-seasons” need to be reconsidered.

Consumerism An increase in social media’s influence over our lives, influencing us as to what to buy, as well as a trend towards consumerism since the 2000s have led to more demanding consumers who have a different perception of ‘throwaway’ fashion. We have been convinced by brands to believe that regular updates are needed for our wardrobe to remain in style. The average American discards 81 pounds of clothes yearly, destined not for charity shops or the recycling centre, but for landfills or incinerators. One in three women consider a garment to be ‘old’ after being worn once or twice. This is not a natural conclusion to come to, but rather one that has been fed to us by the very companies that produce these clothes to maximise profit. During the pandemic, after endless lockdowns, it is only natural that a pick-me-up can be found through a package coming in the mail, yet this pick-me-up is at the expense of the environment, as well as the workers who put their lives at risk by working through the pandemic to make clothes for you. Alternative options must be examined.

While waiting for regulation of the industry, we can choose to be conscious of the businesses we support.

While it may seem difficult and expensive to start, if one can, fast fashion can be avoided unless absolutely necessary. When consumers are confronted with the negative externalities of the industry, they are more likely to reconsider where they shop. This information needs to be more widely accessible.

The Future of Fast Fashion In 2002, Ireland imposed the plastic bag levy, something that was unthinkable at the time, and usage of plastic bags has dropped by 90 per cent since. While demand for fast fashion will never reach zero, that does not give the government the right to bypass it as an issue completely. A societal response will never be effective without legislative change and effective implementation. A world with no fast fashion may be impossible to create, but for the sake of the future inhabitants of our planet, one with as little fast fashion as possible should be aimed for.

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Interview

“The environment is everything that isn’t me.”

-Albert Einstein

Interview

Page 16

Photo Courtesy of Katie O’Reilly, JS Law

Page 71

Urban

15-Minute Cities, Irish Planning Bureaucracy, and Dutch Urban Design

By Ted Halligan, JS Law and Political Science With more of us than ever living in cities and urban areas, urban design plays an increasingly important part in tackling climate change. Suburbanisation and urban sprawl have had a terrible consequence for the climate, namely through fostering a culture of car dependency. One of the best ways urban designers can combat this car dependency is by creating what many are calling a “15-minute city,” this being the idea that everyone in a city should have access to all essential services they require within a 15-minute walk or cycle of their home.

This is impossible in many places in Ireland due to how many local authorities regulate land use. Most land development in Ireland will require planning permission; it is an offence to develop land without the Local Council’s permission. One of the reasons Councils can object to land being developed in a particular way is if it goes against the county development plan’s zoning objectives. The Council, in deciding its County Development Plan, will decide how it wants the County’s land to be used. The primary reason for this is to prevent land use in ways that are thought to be incompatible (i.e., building a shop or factory next door to a residential house). The map below is the county development plan drawn up by Dún Laoghaire-Rathdown County Council. The area highlighted in yellow is zoned for residential use only; it is illegal to open a shop in the areas highlighted yellow.

Dún Laoghaire-Rathdown is a good example of the negative aspects of urban sprawl. In many cases, you have kilometres of suburbs without adequate amenities nearby. This forces people to take their car if they want to, for example, go to the local shops or visit a local park. This increases car traffic on the roads, which in turn is worse for the environment.

Photo Courtesy of the Planning and Organisational Innovation Department

Urban

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However, there are ways of fixing this through the promotion of mixed-use zoning and creating more diverse transport infrastructure, both of which are keys to the creation of a 15-minute city. A model of what a 15-minute city would look like can be seen in Amsterdam.

Amsterdam, as well as many other Dutch cities, has embraced mixed-use zoning. Zoning laws still exist, and any development must be completed in line with the municipal zoning plan (“bestemmingsplan”). The suburbs of Amsterdam have shops and houses situated on the same street throughout housing estates; this is rarely seen in Ireland, and in most cases, it would not be allowed to be built. Another key aspect of planning in the Netherlands is to foster densification; around half of the residences built between 2002 and 2020 were built within the existing cityscape as it was in 2000. This high-density housing and allowing for land to be used commercially near residences allow for services to be moved within walking distance of people to create a 15-minute city.

This type of development can and should be encouraged at a local level in Ireland. Building at a higher density and allowing businesses to locate/establish themselves within residential areas will result in shorter journey times and give people the option not to take the car.

The second aspect of creating a more sustainable urban environment is achieved by giving people more options to move around the city. One of the main ways this can be done is through street design. Up until very recently, Dublin had been poor in implementing this. Our streets were designed with a car-centric approach, particularly from the perspective of cyclists and pedestrians. Cycling infrastructure was poor, frequently only consisting of painted lines as cycling lanes on roads if at all, and pedestrian infrastructure can often be challenging to navigate due to poorly designed intersections. This actively discourages people from walking and cycling as it is perceived as being slower and/ or unsafe. It is also particularly harmful for people with young children and disabilities for this reason.

An example of this can be seen below at the intersection between the Drumcondra Road and Griffith Avenue (This intersection is due to be redesigned). If you were to follow the rules of the road here as a pedestrian, you would continue along Griffith Avenue (the green line). You would follow the orange line, stopping at six sets of lights because there are no pedestrian lights along the green line. The reason for this is because this intersection was designed to accommodate cars first and pedestrians have been an afterthought; this is a blatant example of car-centric design.

Photo Courtesy of the Dublin Commuter Coalition

Page 73 Space Again, the Netherlands is leading the way in this area. Modern Dutch street design incorporates all road users, pedestrians, cyclists, and vehicles. Taking this holistic approach to street design allows people to choose what transport method they want and does not force them into the car. There is far more space apportioned to cyclists and pedestrians and extensive traffic calming measures to make the street more comfortable to navigate for other road users. This approach to infrastructure design gives people options as other transport methods are convenient to use outside of the car, encouraging greener forms of transportation.

Recently, local councils in Dublin have been moving towards a more inclusive model of street design. This can be seen through Dublin City Council’s COVID Mobility Measures: widening paths and construction of safer cycling infrastructure and Dún Laoghaire Rathdown’s construction of the Blackrock cycle route, as well as a general expansion of cycling infrastructure across the county. This reprioritisation of street space away from cars and towards pedestrians and cyclists is a positive step forward as it encourages/incentivises people to out of their vehicles.

Local Government has a large part to play in helping to tackle climate change. There are many lessons in urban design that can be taken from the Netherlands, particularly in relation to street design. We are certainly moving in the right direction, however, a more holistic approach would include a more relaxed attitude towards zoning, which also must come from the county councils. These factors illustrate how Local Government can encourage people out of their cars and on to their feet by creating a 15-minute city.

Star Wars: The Battle for Environmental Regulation of Outer Space

By Eoin Jackson, JS Law and Matthew O’Shea, JS Law and Business In recent years, demand for environmental regulation has gained momentum. Such demand has focused on ensuring that both states and corporations are held accountable for polluting the environment and the atmosphere of this planet. However, as the reader will be aware, human activity extends beyond the confines of Planet Earth.

Space debris consisting of pollutants such as defunct satellites, fragments of space rockets and launch materials has become a growing problem with the rise of space exploration. National Geographic reports that space debris leads to an increased risk of collision with live spacecraft, greater difficulty with launching satellites, and the potential for harm as debris crashes to Earth.

The authoritative instrument concerning space exploration is the Outer Space Treaty 1967. While comprehensive, this has a number of deficiencies when it comes to the protection of the orbital environment. These deficiencies will be examined and recommendations will be made to ensure that we do not continue our pollution of the planet into the final frontier.

The Problem with Space Debris The European Space Agency (ESA) describes space debris as “all non-functional, human-made objects, including fragments and elements thereof, in Earth’s orbit or re-entering into Earth’s atmosphere.” This reflects the evolution of space exploration and is cognisant of the growth in human activity. However, the Outer Space Treaty provides no clear definition of space debris and does not address sustainable space exploration in an adequate

Page 74 Space manner. In fact, there is no current international consensus on what constitutes space debris, making it difficult to impose any liability on those who are responsible for its potential damage.

Article VII of the Treaty imposes liability on any State that sends an object into space, which subsequently causes damage to another State, whereas Article IX imposes a duty to act “with due regard to the corresponding interests” of other nations. However, it is submitted that this does not adequately address the issue of debris, which is becoming more and more prevalent, and is insufficiently clear on how those exploring space should act. Without adequately defining what actually constitutes space debris, the door is left open for orbital debris to go unaddressed and unpunished, while the interpretative issue is left with lawyers. The consequences of a growing presence of space debris include damage to existing satellites and space stations, as well as more frequent occurrences of space debris falling back into the Earth’s atmosphere, with a further potential of damage to our environment. In 2006, space debris colliding with the International Space Station took a chip out of a reinforced window, serving as a foreboding sign of potential things to come. It is thus worthwhile to adopt a formal definition such as that of the ESA, which would allow for greater clarification and culpability for those engaging in space exploration, and better reflect modern conceptions of space debris.

Liability As previously mentioned, the liability of a state under the current regime is limited to damage caused by an “object” sent into space that subsequently causes damage to another state. This leads to several issues when considering liability in the broader context of space debris and environmental protection. Firstly, the absence of a legal definition of space debris makes it unclear whether it falls into the category of “object” for the purposes of the Treaty. Secondly, liability only applies when damage is caused to another State and not the orbital environment.

This provides little incentive for actors to take proactive measures in favour of sustainable space exploration. Space debris remains present regardless of whether it has collided with another nations objects, thus liability must reflect the precautionary principle in favour of removing ecological danger before it worsens the existing environment.

Finally, the strict focus of the Treaty on “states” makes it unclear as to how to impose liability on private corporations. As will be discussed in further detail, the future of space exploration is increasingly being left in the hands of the free market. The current regime provides for no direct measure to impose liability where it is a corporation and not a State opting to launch an object. While it can be argued that a State could be held liable where they facilitate the launch by the corporation, the absence of balance in this theory would place an onerous burden on space faring nations.

It is therefore submitted that liability should be expanded to encompass all “actors” responsible for space debris. Further, that such liability should adopt a precautionary approach that obligates these actors to prevent pollution prior to damage to others. This need for greater regulation becomes all the more apparent as we look towards the future of space exploration.

Going Forward: The Growing Need for Authoritative Action Man-made material is entering orbit and beyond at a rate the Outer Space Treaty could never have envisaged.

Private corporations such as Elon Musk’s SpaceX have reached a stage of readiness for space exploration, and it has been reported that there are now between 70-90 launches into space per year. This is far beyond what the framers of the Outer Space Treaty could have perceived when drafting it in the 1960’s, before man had set foot on the moon. As technology advances, and the atmosphere-defying capabilities of nations and private corporations alike increase, it is expected that this level of 70 to 90 launches per annum can only increase, bringing with it more frequent instances of space pollution. This indubitably brings about a greater need for authoritative action to be taken in this area.

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Space

Space Court: Establishing a Regulatory Body for the Protection of the Space Environment In line with the need for action, we propose the establishment of an international environmental body, with specific responsibility for the regulation of space exploration. Such a body could mediate disputes between actors and determine liability for pollution of the orbital environment. If successful, it would operate having regard to the Outer Space Treaty, but also be capable of engaging with the commercial sector as its influence on space exploration becomes apparent. International regulations, operating in line with the precautionary principle would be of great assistance to space explorers in understanding the need to operate in a sustainable manner. This also leaves precedent for the regulation of planetary exploration, when technology reaches the point that it becomes possible to extract resources from other planets. Humanity has struggled to address the consequences of overexploitation of our planet’s resources. We must not make the same mistakes as we seek to take the next giant leap for mankind.

Conclusion It is clear that the Outer Space Treaty no longer fully reflects the space exploration environment on Earth. The Treaty, while well-intentioned, is outdated, and leaves much to be desired in terms of imposing responsibility on those who act in an unsustainable manner while exploring space. Bearing in mind the alarming pollution levels on our own planet, and the ever increasing rate of exploration, the time has come for change in space pollution regulation. In light of the above suggestions, it is time for us all to remember: “[d]o or do not. There is no try.”

Sky High Emissions in Aviation: International Regulation, the Carbon Offsetting and Reduction Scheme, and COVID’s Impact

By Sophie Brennan, Postgraduate Student in International and European Business Law Aviation’s Contribution to Emissions, pre COVID It will not come as a surprise that civil aviation (aviation which is inclusive of both commercial and private flights, ie. non-military aviation) plays a role in the ever growing concerns around climate change. In September 2020, the Air Transport Action Group reported that the aviation industry had produced 915 million tonnes of carbon dioxide in 2019, globally. This figure indicates that the aviation industry was responsible for twelve per cent of CO2 emissions across all transport sources. Considering that the aviation industry was on a path of growth until the pandemic hit – with just over one and a half billion travellers internationally in 2000, compared to just under four and a half billion in 2020 - and with flying continually becoming cheaper and more accessible, it is clear that the contribution of aviation to global warming requires regulation and fundamental change.

Regulation of Aviation Emissions The aviation industry and its contribution to global emissions can be regulated on three separate levels: nationally, regionally, and internationally. While there are a host of approaches to aviation emissions on both national and regional levels, aviation is said to be most effectively handled at an international level due to the global nature

Page 76 Air of the industry itself. After all, international flights account for sixty five percent of the industry’s emissions, as of 2019. A prevalent international framework on climate change is the Paris Agreement 2016, alongside the preceding Kyoto Protocol. The Kyoto Protocol was an extension of the 1992 United Nations Framework Convention on Climate Change. The Paris Agreement set out to improve upon and replace Kyoto, however, it makes no explicit mention of aviation provisions, which were reportedly edited out in the final days of drafting. According to Dr. Olumuyiwa Benard Aliu, a former president of the International Civil Aviation Authority (‘ICAO’) this omission to mention aviation was a ‘vote of confidence’ in the ICAO, vesting exclusivity in the ICAO to deal with international aviation emissions. While the Chicago Convention, the Convention on Civil Aviation which established the ICAO, does not give the ICAO explicit control over such emissions. It does provide ‘sufficient authority’ to develop legal mechanisms surrounding the environment and aviation.

The Standards and Recommended Practices (‘SARPs’) are the technical specifications adopted by the ICAO Council which aim to achieve the highest level of uniformity possible with regards to regulations, standards and procedures. Annex 16, Volume IV on Environmental Protection establishes the Carbon Offsetting and Reduction Scheme for International Aviation (‘CORSIA’), officially adopted in June 2018. The incentive of the CORSIA was to address any annual increases in CO2 emissions from international civil aviation above 2019/2020 levels and to help the aviation industry reach its aspirations of making growth in international flights ‘carbon neutral’ after 2020. The strategy was to implement the scheme in phases, with a voluntary pilot phase from 2021-2023, a ‘first phase’ from 2024-2026 also voluntary in nature and a ‘second phase’ through to 2035 which applies to States on a mandatory basis. There are exemptions however, for small islands, lesser developed countries, and States which contribute to less than half of a percent of air traffic. The main premise of the CORSIA was to combine the amount of emissions between 2019 and 2020, and make that amount the baseline. In following years, airlines will have to restrict themselves to the established baseline, and if they were to go over, they would be obliged to purchase emissions units to offset their excess. Similar strategies have been seen before, for example in the EU Emissions Trading System (‘ETS’), which has proven to be an effective mechanism in decreasing emissions. According to the European Commission, emissions from installations covered by the ETS declined by thirty five percent from 2005-2019.

“The aviation industry and its contribution to global emissions can be regulated on three separate levels: nationally, regionally, and internationally. While there are a host of approaches to aviation emissions on both national and regional levels, aviation is said to be most effectively handled at an international level due to the global nature of the industry itself.”

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Air

COVID Complications A global pandemic under which frequent holiday makers and business travellers are being instructed by their national governments to stay at home has had a massive impact on the aviation industry and the number of flights in 2020. In the EU alone, passenger traffic was down seventy percent. Ryanair, for example, lost €320 million in the third quarter of 2020, with the losses in European airlines overall amounting to nearly 30 billion USD. Because of this drastic halt in commercial flights, the baseline which was to be calculated as the average of 2019 and 2020 emissions from the sector would have been much lower than foreseeable at the inception of the CORSIA. The baseline, taking 2020 into account, would be thirty percent more stringent than anticipated. This would create a situation in which airlines would struggle to keep on track with the baseline from year to year.

An Inappropriate Economic Burden Going forward, if airlines were to stick to the emissions baseline of 2019/2020, this would certainly have generated an inappropriate economic burden with regards to the COVID-19 pandemic. This burden is in contravention to Assembly Resolution A40-19, which safeguards against same. It is worth noting that this economic burden would only be an issue if the aviation industry springs back in 2021 This is subject to uncertainty, but for the purposes of this article it can be assumed to be true. The reality of imposing an unfair burden on the industry was considered by the ICAO Council at its 220th session in June 2020. An analysis by the Committee on Aviation Environmental Protection was taken into account. Ultimately, the Council utilised the safeguard in paragraph 16 of A40-19 which ensures the ‘sustainable development’ of the aviation sector, and determined that the value of 2019 emissions shall be used instead of 2020 emissions during the pilot phase, so as not to burden the industry and States which have voluntarily become involved in CORSIA’s pilot phase. It was noted that if 2020 emissions were to be used, it would go against the original intentions and objectives of the 193 member states which adopted CORSIA at the beginning. The Council also highlighted the importance of paragraph 17 of A40-19, which offers an opportunity to examine the actual impacts of COVID-19 on CORSIA. This could serve as a good opportunity to examine the industry and its emissions as recovery post-COVID begins to unfold. Overall, the remedy provided was described as the ‘most reasonable solution available’ by ICAO President Salvatore Sciacchitano.

Looking Forward Once the aviation industry begins to recover from COVID-19 and flight demand increases again, the CORSIA will have a proper chance to operate uninhibited, providing an incentive for airlines to make ethical decisions regarding their emissions and resulting in a reduction of same. It is anticipated that the CORSIA will ultimately result in an offset of two and a half billion tonnes of CO2 within the aviation industry by 2035. If this estimation is fulfilled, these initial issues with the scheme may be outgrown, and the impact of the aviation industry on the environment may be regulated more efficiently.

“Once the aviation industry begins to recover from COVID-19 and flight demand increases again, the CORSIA will have a proper chance to operate uninhibited, providing an incentive for airlines to make ethical decisions regarding their emissions and resulting in a reduction of same.”

“Unprecedented technological capabilities combined with unlimited human creativity have given us tremendous power to take on intractable problems like poverty, unemployment, disease, and environmental degradation. Our challenge is to translate this extraordinary potential into meaningful change.”

– Muhammad Yunus Photo Courtesy of Alannah Campbell, JF Midwifery

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Interview

An Interview with Environmental Justice Solicitor Rebecca Keatinge

By Emma Bowie, JS Law Rebecca Keatinge is an environmental justice solicitor working with the Community Law and Mediation Centre (CLM), an independent, community-based organisation that works to empower individuals experiencing disadvantage by providing free legal information, free legal advice, education and mediation services.

What drew you to working in the area of refugee and migrant rights after completing your History and Political Science degree in Trinity?

After my undergraduate degree, I moved to London and did a master’s degree in international development, and as part of my course I had the opportunity to study migration and development theory. I then interned at the UN Refugee Agency in London with their public information unit. The protection team there worked on legal cases, which I found really interesting. After my internship, I started working as a caseworker for an organisation in London which provided asylum-seekers and refugees with legal aid … It was a great way of getting experience in that area of law, without needing to be a fully qualified solicitor. In the UK, an accredited caseworker can appear before tribunals and present cases and bail applications, and that was a great learning curve in terms of advocacy.

Having the opportunity to work with individual applicants was a real privilege, especially as they would often share details about their personal journeys and situations.

After working with the organisation Refugee and Migrant Justice, you undertook the training required to become a solicitor in Ireland. Why did you decide to pursue a legal education after working with an NGO? When I was working in that sector, I could see that there was a glass ceiling in terms of what I could do as an accredited caseworker. Ultimately, if you want to bring an application for judicial review, or represent a client in the higher courts, you need to be a qualified solicitor. The team of solicitors working with Refugee and Migrant Justice would bring judicial review applications of decisions relating to the cases that I was working on. They would also bring as applications to the Home Secretary - sometimes in the middle of the night - with the purpose of preventing deportations. It was really exciting and impactful work, and I knew that a qualification was necessary if I wanted to progress down the legal route.

I think the legal route is quite attractive in that you can advise someone as to the outcome of a net issue, and achieve positive change at an individual, micro level. I started studying for the FE1s while I was working with the UN Refugee Agency in Cambodia on sabbatical from my job in London, and sat my exams when I returned to Ireland. For me, the human story at the heart of a legal case is where it is at – even when you’re studying law, it is the stories behind the cases that help you remember them, be it the snail in the bottle or obscure maritime scenarios!

That was definitely one of the things that attracted me to law … I also knew that with a legal qualification, I could work outside of refugee and immigration law, and help other communities experiencing disadvantage.

You were recently appointed as the new Environmental Justice Solicitor of the Community Law and Mediation Centre in Coolock. Could you tell us about the aims of the recently established Centre for Environmental Justice?

CLM is forty-five years old this year, and is firmly rooted in the social justice sector in Ireland. Over the past couple of years, the Centre has been seeing environmental issues become more prevalent in its own work, while also observing the emergence of climate justice movements in countries such as America, the Netherlands, or

Page 80 Interview France. CLM decided to do the groundwork in Ireland and set up the Centre for Environmental Justice with the aim of meeting unmet legal needs relating to environmental concerns. That may sound quite lofty, but when you look at the issues that CLM has been engaging with, such as housing, health and employment concerns, many of these can be traced back to environmental health issues. For example, living in an apartment that is badly insulated or is not retrofitted may lead to the aggravation of an existing respiratory condition. CLM aims to look at these issues through a different lens, and provide legal advice and representation to individuals effected by such issues.

The Centre also provides legal support to community groups and NGOs on environmental law issues, as well as training and capacity-building through community engagement. We will be working on law reform and policy issues, and hope that the casework we do will ultimately influence our existing law and inform policy issues. The strength of the centre is that it is being set up within the existing structure of CLM - we are not re-inventing the wheel or setting up a new entity. I am grateful that CLM already has an established training system and a profile in terms of law reform.

Before working with CLM, you were the Managing Solicitor of the Mercy Law Resource Centre, which provides free legal advice and representation to people who are homeless, or at risk of becoming homeless. In light of your experience, could you explain the relationship between climate change and housing inequality in Ireland?

All of our homes need energy, and while at a political level we are having discussions about how we can heat our homes in a more environmentally-friendly way, where people are living in poorer housing that discussion is rarely had.

We need to join those dots – at Mercy, I met many people who were living in poor housing conditions and there is an environmental health dimension that needs to be considered there. We are now seeing retrofit schemes being rolled out by the government, and CLM’s concern is the accessibility of those schemes for the people we are working with – can they reduce their experience of disadvantage and social exclusion? We are really encouraged by the government focusing on local authorities in rolling out retrofit, and that is great if you are living in a social housing estate that is going to be targeted by the scheme. However, we also need to consider those who are living in private rented accommodation and are in receipt of housing assistance payment. If that tenant’s landlord is not willing or financially able to avail of retrofit, they may find themselves in fuel poverty. At the broader policy level, we need to ensure that people are not disproportionately burdened by energy costs by virtue of living in a home that hasn’t qualified for retrofit. In my past work, I would have also frequently heard people’s concerns regarding lack of access to greenspaces. The location Photo Courtesy of Rebecca Keatinge

Page 81 Interview of social housing in relation to busy roads and greenspaces is definitely an issue which we are mindful of at CLM. In your opinion, are there any pressing legal or policy reforms which are necessary to ensure the protection of the rights of marginalised groups disproportionately impacted by climate change in Ireland?

The Climate Action and Low Carbon Development (Amendment) Bill 2020 is due to be published shortly, which is to be welcomed. In November, CLM partnered with Saint Vincent de Paul and the Jesuit Centre for Faith and Justice to make a submission on the Bill, calling for a strengthening of its language to ensure that climate justice is properly defined. We also recommended that a stronger obligation be placed on the government in terms of meeting the specific needs of communities who are either particularly vulnerable to the effects of climate change or the measures being introduced to address climate change. Our submission also emphasised that just transition should be at the centre of the state’s response, so that our move towards sustainability brings everyone along with it in a fair and equal way. We see that with the Bord na Móna peat station closures in terms of workers’ rights, but just transition can also apply much more broadly. The third limb of our response focused on public engagement and ensuring that the Bill obliges the State to meaningfully allow for public participation in decision-making. We see the Climate Bill as a really important opportunity to ensure that there is engagement with communities who are experiencing disadvantage.

Air pollution is an issue that has already come to us through our clinics, and we’ll be looking at that from an individual perspective too. We are currently drafting our submission in respect of Eamon Ryan’s smoky fuel public consultation, with a focus not only on the effects of air pollution, but the impact of banning smoky fuels on communities who are dependent on those fuels and cannot access alternative sources on the other - a holistic perspective is very much needed.

“All of our homes need energy, and while at a political level we are having discussions about how we can heat our homes in a more environmentally-friendly way, where people are living in poorer housing that discussion is rarely had. We need to join those dots – at Mercy, I met many people who were living in poor housing conditions and there is an environmental health dimension that needs to be considered there.”

Photo Courtesy of Samantha Tancredi, JS Law and Political Science

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Interview with Trinity Professor and Co-Founder of Natural Capital Ireland, Jane Stout

By Dylan Krug, JS Environmental Science Natural capital accounting is a concept that treats natural resources as assets or stocks that yield a flow of benefits to people. Viewing natural resources through both economic and ecological lenses is an interdisciplinary process that brings together ecologists, economists, business owners, and policy makers. I spoke with Professor Jane Stout about the natural capital accounting approach to environmental management. Jane Stout is a Professor in Botany at Trinity College Dublin, a co-founder of Natural Capital Ireland and a co-founder of the All-Ireland Pollinator Plan. Natural Capital Ireland has partnered with Trinity College, University College Dublin, NUI Galway, University of Limerick, and the IDEEA Group in a project called Irish Natural Capital Accounting for Sustainable Environments (INCASE), a program building natural capital accounts in four Irish catchments.

Ecosystems and Economies are two very complicated systems, how do you study and communicate their interactions without oversimplifying?

That’s a great question, and the answer is that it’s hard. Economists and ecologists have different conceptual backgrounds in different languages, but as ecologists what we do is we study and try to understand the complexities of nature. We look at how ecosystems work, we look at the behaviours and interactions of the systems components, we look at production, distribution, and consumption of goods and services. These are all exactly the same principles that economists study. The approach of ecologists and the approach of economists aren’t that far apart, but we’ve been working very separately and using these different philosophies and languages. So for real sustainability ecologists and economists need to work together because nature’s economy, our ecosystems, underpin everything. By understanding nature’s economy by working with economists who understand the human economy we can bring these systems closer together because if they are not aligned then it’s bad news for both. Through the work on Natural Capital Ireland and through the INCASE project we are learning how to study and communicate clearly across disciplines. We are learning how to do this clearly and without dumbing it down. It is complicated, it takes effort, it takes time, but it’s really exciting. I’m an ecologist, I can appreciate that ecosystems are these networks of interactions where something changes over here and you don’t know what the consequences are, it’s the same in economics and economic systems. You can see that the consequences of one unexpected change can ripple throughout different systems.

People tend to misunderstand the natural capital approach when first learning of it. For the benefit of our readers, could you address the concerns that natural capital accounting commodifies nature and disregards nature’s intrinsic value?

Yes, absolutely, that’s something we absolutely encounter. As an ecologist promoting the natural capital approach some of the fiercest criticisms I get are from my side of the house, from those with an ecological or conservationist background. Just to be clear, the natural capital approach uses the language of economics and business specifically to engage those audiences that aren’t intrinsically interested in nature. Natural capital accounting is an economic metaphor for nature, and the concept is all about linking underlying nature as stocks from which flow goods, services, and benefits to people. So it’s all about linking nature and people, it’s a human centric concept but it doesn’t commodify nature. This is very important, it’s about valuing nature, not putting a price tag on it. Those

Page 84 Interview values might not necessarily be monetary, some might be but not necessarily. The concept doesn’t disregard or replace the intrinsic value of nature, it just tries to make our dependencies on nature visible and by accounting for them, it’s a way to quantify that dependency and track change over time. To me it is one tool in the tool box to try to protect and restore nature both for its own sake, for its intrinsic value, and for our own sake. For me personally it’s been a tool to engage in those conversations where previously we were meeting only closed doors.

This INCASE program is pioneering the building of natural capital accounts in Ireland. You led Phase 1 of the INCASE project, reviewing the existing body of work on natural capital to compile a literature review with Catherine Farrell. What were some of your main takeaways about the existing methodologies in natural capital accounting?

It’s something we talked about for a long time in Natural Capital Ireland about having this pilot, demonstrating that it can actually work. We are halfway through the project, two years in. We started by seeing what everyone else was doing, what’s going [on] in the literature and around the world. There are a lot of different approaches to natural capital accounting depending on what you wanted to do. There is corporate natural capital accounting for businesses and that was driven very much by the Capitals Coalition and the Natural Capital Protocol. What we found was that the UN’s System for Environmental Economic Accounting (SEEA), particularly the Ecosystems Accounts (SEEA-EA) which is spatially explicit, this framework is very widely used, it’s very well standardised, it’s holistic, and it’s flexible and it’s one that’s doable in Ireland. We looked at these different approaches and methods and we settled on the UN backed SEEA-EA approach for all of these reasons, and it’s doable at a range of scales as well, so individual businesses, sectors, ecosystem types, for example the Center for Statistics Office is starting with ecosystem accounting for peatland. It can be scaled up to regions. We are doing it for catchment levels which brings its own challenges and it can be scaled up nationally. Because it uses standards to verify data it’s very robust and it’s what many other countries are doing, so I think that’s what the take home message is from our literature review - that this is an approach to use and lets get on with it. It’s coming down the line in terms of obligations internationally, even nationally we have a national biodiversity action plan, there’s a target to integrate ecosystems into accounts. The time is now, we do have to get on and do this. We concluded at the end of the literature review that this was the best approach and that we could do it. So we did.

Under the EU Water Framework Directive (WFD) and the River Basin Management Plan, water catchments have developed a large body of knowledge to draw from. What gets measured gets managed, so for less well understood ecosystems how does one begin monitoring an ecosystem with the end goal of developing natural capital accounts?

That’s another good question and I am glad you didn’t ask me that a year ago. We learned a lot over the last year.

Your starting point is knowing what ecosystems you have, where they are, and their condition. Having data, spatial data, good quality information about land cover and state of the ecosystems is really important. From the other end of the SEEA-EA, knowing what benefits are derived from a particular area, who’s benefiting, what services of the underlying ecosystem deliver those benefits is really important. The whole approach needs lots of data in formats that can be used and repeated over time so that we can track changes. It’s a huge job. We are working with the Environmental Protection Agency (EPA) catchments unit because as you mentioned they already have these good catchment based approaches to assessing and managing, developed under the WFD. What has become clear is that we are lacking condition data on most ecosystems apart from the freshwater ecosystems. The freshwater systems have been assessed under the WFD with indicators for condition. We have them for the whole country, water system by water system, it’s really great. But when it comes to woodlands, to peatlands to all the other types of habitats, we don’t have that condition data at scale. There are bits and pieces of data from individual projects, from reporting, from other EU directives like the Habitat Directive, but we don’t have that detailed available condition data. So the starting point is what do we have, getting the spatial data, understanding what the benefits and services are but I think the challenges we will face nationally going forward is that condition data. I think we need to have a national ecosystem assessment that provides us with ecosystem condition data across the country and it can’t just be a one off. It needs to be repeated and updated so we can track this change over time. The services that

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Interview

flow from the assets depend on the condition of those assets. If our peatland is degraded it ends up not storing carbon but emitting carbon so it’s not providing the benefit that we want in terms of carbon storage.

People and businesses show interest in preserving pollinators even if they themselves are not directly dependent on them. What has been the secret to engaging people with the All-Ireland Pollinator Plan?

It’s really interesting, the natural capital conversation has been harder in terms of people worrying that we are commodifying nature and a little bit skeptical about the approach and all the rest of it. The pollinator plan on the other hand has been a much easier sell. A lot of people want to do something for nature and biodiversity but they don’t know what to do. Pollinators, I think, have really acted as a flagship. They’re something people can get on board with so bees are charismatic, everyone knows something about bees, about butterflies. The link between pollinators and the benefits of pollination is clear and tangible. Anyone who has an apple tree in their garden knows that if a bee doesn’t visit the apple flower, and transfer pollen between flowers, then you don’t produce any apples.

It’s a really clear tangible message of a benefit that we are getting from nature, so it is very closely linked to the natural capital approach but it’s focusing on a single service. We also have data on the state of bees. We did a workshop in 2006 where we looked at the status of all the bee species in Ireland and did this formal process of assessing their conservation status. We found that one third of Irish bee species are facing extinction. So this makes it a really clear and simple message: bees, they’re charismatic, they’re doing something good, they’re at threat of extinction. I think that sort of clear message has been one way of engaging people with pollinators. But really what I think is key to engagement on the pollinator plan has been working across sectors. Working with community groups, schools, gardners, the farming community, business and providing clear guidelines on what they can actually do. So when we say “gosh, pollinators are in trouble”, the first thing people turn around and say is “oh I know, isn’t it terrible?

What can we do?” Working with and providing all of these sectors with clear and tailored guidance on what they can do has been really one of the big successes of the pollinator plan, and those guidelines are based on science.

You need the evidence to support that the actions actually work and have a positive benefit otherwise you’ve got people running all over the place doing things that they think are good for nature that actually turn out not to be which can cause more harm than good but it can also disillusion people and turn them off if what they try to do doesn’t actually make any difference. I think there are lots of really interesting questions about why people engage with pollinators and why the pollinator plan works.

Bees have the benefit of being viewed quite fondly by many. How do we cultivate the same level of public engagement and care for species that don’t have that advantage like large predators, spiders, or native “weeds?”

That is a good question as well. I suppose on the one hand we don’t have to. If we’ve got our flagships species it means we can restore natural habitat with them. We don’t have to convince everyone that every species is important. But on the other hand, as ecologists, we know that ecosystems are intricate networks of interactions and if we lose species from the system than the whole system is less resilient in the face of climate change and things like that. The whole system functions less well and we derive less benefit from it. Sending some clear general messages is important: diversity is good, diversity of species and habitat is good. Being positive, nature benefits our health, wealth and wellbeing. Focus on how we benefit from nature and what we can do to restore it going forward. I think sending those clear general messages about diversity means you don’t have to love everything, but we are all better off if we’ve got that diversity there. That’s my thoughts anyway.

The first Pollinator Plan ran from 2015-2020. The 2021-2025 plan is said to be more ambitious, what do you see changing in your approach?

Yes, it is more ambitious. More partners, more actions, more support, more interactions internationally, more people on board, more nuanced guidelines regarding actions, more monitoring of what’s being done and pollinator populations themselves. When we launched the first plan in 2015 we had no idea how successful it would be

Interview

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and how much support there would be for it and how much demand there would be for it. So this second phase we are really building on that, building on the relationships that have been formed in the first phase, building on the enthusiasm and the weight of expectations. Phase two is more ambitious and I am really looking forward to that launching towards the end of March.

Ultimately it seems natural capital accounting equips policy makers, businesses, and people with the information and understanding necessary to make decisions more in line with the green initiatives like the Irish Climate Action Plan. In what way, anecdotally, have you seen your work with stakeholders change their actions?

These are the questions that academics are always being asked. What’s your impact, what impact are you having? In terms of the natural capital approach we have several semi-state bodies now who embarked on natural capital accounting projects. We’ve got businesses that are starting to realise they are at risk of degradation of their natural capital. They are realising that biodiversity loss might actually affect them. If you look at the world economic forum risk index for the past 5 or 10 years you can see that these environmental risks including biodiversity loss, natural resource loss, and climate change are moving steadily up the scale of likelihood and impact. They’re starting to want to do something. Businesses don’t just want to clean up their image, some of the serious ones realise they actually have to change their practices if they want to survive. People don’t like greenwashing but with the impact on supply chains, they are realising that this is real. Policy makers are realising that this is coming down the line in terms of natural capital accounting they are starting to engage. We’ve got engagement across different areas, for example in the department of agriculture they are very interested in how the approach can inform payments to farmers and interested in how we can measure the success of peatland restoration which is very important in terms of the climate action plan. Also, I suppose in terms of climate mitigation, where do we plant trees? Where is the best place for the trade-offs and I think that is something the natural capital accounts really help us do is highlight those trade-offs. Where do you plant trees so that you get both carbon benefits for climate mitigation but also biodiversity and recreation benefits? Working again with semistates and government departments starting to develop those processes. I think there really is a change in the way some stakeholders are operating and I can see more and more of this in the future, there is more and more demand.

We are trying to push the point that this natural capital accounting framework is a good way to go. So long as there is monitoring, information and data driven decision making and understanding of the value of nature then the decisions can start to be made in a bit more of a sustainable way.

Our readers are primarily students, how can they get involved in these projects or natural capital in general?

My first thing to say would be to become a member of Natural Capital Ireland. It’s free and when you sign up you get newsletters, information about events, and access to resources. So that’s one way to just get more involved.

In terms of getting hands on involved in projects, volunteering or getting in touch with the people running these projects and asking questions. We are always looking to engage and involve new people in these projects. The next generation is much better informed and much more motivated. The other thing that students can do is spread the message, talk to people, your parents, your friends, get the message out there that this isn’t any longer just a load of hippies hugging trees, it’s real and it’s important to everyone in their daily lives. Being in daily lives everyone can behave a bit more environmentally responsibly by thinking about your actions, the same as natural capital accounting, when we have the full data we can make better decisions. Just think about actions, what you’re eating, how you’re consuming, and how you’re traveling. There’s lots that students can do.

If anybody wants to get in touch then the natural capital ireland email is info@naturalcapitalireland.com. Please reach out!

Photo Courtesy of Aoibh Manning, JS Law and French

“What you do makes a difference, and you have to decide what kind of difference you want to make.”

-Dr. Jane Goodall

Photo Courtesy of Aoibh Manning, JS Law and French