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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
