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The Need for a Constitutional Protection of the Environment
Aisling Maloney
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When reflecting upon the past hundred years of the Irish State, Ireland is ranked among the worst-performing developed countries for climate action both in the EU and globally. In 2020, the Climate Change Performance Index (CCPI) ranked Ireland 39th out of 57 countries when it came to responding to the climate crisis.1 This article reviews the handling of the environmental crisis by the Irish State and highlights the need for an amendment that instigates a constitutional protection of the environment. Ireland’s environmental history is composed of three areas: changes to the environment that were caused by the actions of humans in the past, the effect that these changes have on Ireland today, and the attitude of the Irish government and citizens towards environmental matters. The purpose of this article is to demonstrate the need for an enumerated constitutional protection of the environment in the Irish Constitution.
Recent Developments
In the earlier half of the 20th century, Ireland had no legislation that related to the environment, like many other countries in Europe, but this has changed in recent decades with the introduction of eight acts that are focused on environmental matters: Environmental Protection Agency Act 19922, the Waste Management Act 19963 , Minister for the Environment and Local Government (Performance of Certain Functions) Act 20024 , Protection of the Environment Act 20035 , Environment (Miscellaneous Provisions) Act 20116 , Environment (Miscellaneous Provisions) Act 20157, Climate Action and Low Carbon Development Act 20158, and the Climate
1 Kevin O’Sullivan, ‘Ireland ranked among worst performers in 2020 climate rankings’, The Irish Times, 07/12/2020. 2 Environmental Protection Agency Act 1992. 3 Waste Management Act, 1996. 4 Minister for the Environment and Local Government (Performance of Certain Functions) Act 2002. 5 Protection of the Environment Act 2003. 6 Environment (Miscellaneous Provisions) Act 2011. 7 Environment (Miscellaneous Provisions) Act 2015. 8 Climate Action and Low Carbon Development Act 2015. 57
Action and Low Carbon Development (Amendment) Act 20219. Ireland currently has a developed system of environmental legislation that acts in accordance with directives set out by the European Union.
In recent years, there has been a renewed focus on climate action and environmental action. In May 2019, Ireland became the second country in the world to declare a climate and biodiversity emergency, following the UK's similar declaration. 10The Irish government has introduced new policies and legislation regarding climate change and the environment that are designed to help the country transition a climate-neutral economy and lessen the effects of climate change. This included the crucial Climate Action and Low Carbon Development (Amendment) Bill 202111, which is meant to support Ireland’s goal of achieving a climate-neutral economy by no later than 2050. Ireland has also been involved in climate talks at an international and EU level, such as COP26, and has signed up to several international climate agreements, such as the 2015 UN Paris Agreement and EU Agreements. The Paris Agreement was signed by Ireland in 2015, and its terms included several measures aimed at halting global warming and reducing and reversing climate change. These agreements were designed to set Ireland on a path to a more sustainable future. However, Ireland failed to meet its overall renewable energy target for 2020 and had to pay a total of €50 million up to December 2020 for a ‘statistical transfer’ of renewable energy to make up for a shortfall in meeting targets. The causes of this failure were mostly due to Ireland’s reliance on fossil fuels for heating purposes, the agriculture industry, and the government's lack of action. Changes need to be made to prevent this scenario from happening again in the future.
One of the most vital pieces of Ireland's environmental legislation is the Climate Action and Low Carbon Development (Amendment) Act 202112. This act set out a path to netzero emissions by 2050, which would mean that the amount of greenhouse gas that is being released into the atmosphere is equal to the amount that is being removed from the atmosphere. The Government is attempting to do this through carbon budgets, which is the allowance for how much carbon Ireland is allowed to emit within a five-year period. Each Minister will have their own targets to meet to reduce emissions, and Local Authorities will also have to create their own Climate Action Plans. The Minister for
9 Climate Action and Low Carbon Development (Amendment) Act 2021. 10 Paul Cunningham, ‘Ireland becomes second country to declare climate emergency’10/05/2019, RTÉ, https://www.rte.ie/news/environment/2019/0509/1048525climate-emergency/. 11 Climate Action and Low Carbon Development (Amendment) Bill 2021. 12 Climate Action and Low Carbon Development (Amendment) Act, 2021. 58
Communications, Climate Action and the Environment passes regulations under the legislation providing the detail of the regulatory requirements, then enforces this environmental legislation along with the Environmental Protection Agency. While signing up to international agreements and introducing new policies is important, the only way out of this crisis is if this is followed up with instigating a constitutional protection of the environment, it has the potential to create more accountability for achieving these targets than acts and agreements.
Still, there is the question of whether there is enough being done. Many climate activists believe that the government’s Climate Action Plan came too late, including the director of Friends of the Earth, who said that ‘This would have been a great plan if this was 10 years ago’13, and that more needs to be done soon to truly make an impact. Stronger, more detailed measures should be introduced and more should be done to hold Ministers and departments to account, such as setting stricter annual targets for their emissions and finding more sustainable ways to make progress. Although Ireland has signed up to several international agreements that set out targets for reducing emissions globally, the EU targets are binding, which means that countries can be fined for not meeting them, and this can cost the country millions of euros each year. Unfortunately, Ireland is consistently falling behind targets, which not only means losing out on millions of euros, but also putting our future at risk and making it harder to reach targets in the future.
However, simply making these policies and signing these agreements hasn't been enough to solve the environmental problems that this country is facing, and therefore a constitutional protection of the environment should be in place. The climate crisis was not an issue when the Constitution of the Irish Free State and Bunreacht na hÉireann was first created, so it makes sense as to why this protection was not included in the first place. Now that it has become a serious issue, it is vital that it is included now.
This is not a new concept, as other countries have already taken this step. Indonesia has introduced the right to a ‘good and healthy environment’ into its Constitution.14 India has gone even further. Originally, the Indian Constitution did not contain any specific provisions for environmental protection or for the control of pollution. When India
13 Caroline O’Doherty, ‘Environmental groups deliver devastating critique of the Government's Climate Action Plan’ (09 July 2019) < https://www.irishexaminer.com/news/arid30935772.html> accessed 28 February 2022. 14 Simon Butt and Prayeti Murharjanti, ‘The Constitutional Right to a Healthy Environment in Indonesia’ (2020) 33(1) Journal of Environment Law 33. 59
gained its independence in 1947, it then employed a range of regulatory instruments to preserve and protect its natural resources. Eventually, certain specific provisions were incorporated by the Constitution’s 42nd Amendment Act, 197615, and subsequent amendments. The Constitution of India played a significant role in protecting and preserving their environment, as it guaranteed the enforcement of any legal rights relating to the environment and provided compensation for damages caused to the environment. If this constitutional protection of the environment was implemented into Bunreacht na hÉireann, then it would do a great deal to improve Ireland’s environmental situation, since this would give the Courts the power to judicially review any legislation giving effect to the right.
The leading case that discusses the need for a constitutional amendment to protect the environment is Friends of the Irish Environment v The Government of Ireland16 [2020]. In this case, the Supreme Court quashed the Government’s National Mitigation Plan as being ultra vires as it failed to comply with the standards that are required by the Climate Action and Low Carbon Development Act 2015. This was a key decision that received a lot of praise, as it is one of the few successful climate cases in Ireland. The Court found that there is no unenumerated right to a healthy environment in the Constitution, and so an explicit constitutional amendment needs to be implemented. This constitutional amendment would better reflect the increasing will of the Irish people to protect and preserve the environment.
Conclusion
Given how the right to environmental protection has been adopted and developed in other countries, it has the potential to play a significant role in the protection of our environment and, given that it was not included in the Constitutional Convention17 should at least be included in the next Citizens ‘Assembly. After examining how Ireland has handled the environmental crisis in the past, a written constitutional protection of the environment is of paramount importance if there is any chance of this country taking the necessary measures against climate change.
15 42nd Amendment Act of the Indian Constitution, 1976. 16 Friends of the Irish Environment CLG v the Government of Ireland, Ireland and the Attorney General [2020] IESC 49. 17 Houses of the Oireachtas, ‘The Convention on the Constitution’ [2012], https://www.constitutionalconvention.ie/Documents/Terms_of_Reference.pdf 60
