The Supreme Court has made a decisive intervention into what many would argue is the most significant challenge facing the political establishment, and has done so in a way that is a cause for international embarrassment.
The Government has the role under the separation of powers of deciding on policy, not the courts, but the the Supreme Court has quashed the Government’s statutory plan for tackling climate change.
The reason for this is that it is a statutory plan. The plan was adopted under the provisions of the Climate Action and Low Carbon Development Act, introduced by the Oireachtas in 2015.
As explained by Chief Justice Frank Clarke: "The question of whether a plan actually does comply with the statute in such regard is a matter of law rather than a matter of policy."
So the reason the courts have a role in what one of the richest countries in the world plans to do to help avert climate catastrophe is because the Oireachtas and the Government chose to make it so.
Under the 2015 law, an interested member of the public is entitled to know what Ireland intends to do to meet its objectives in relation to climate change. An interested member of the public cannot assess the statutory plan, however, if the plan does not contain specifics.
“The 2015 Act requires that the public have sufficient information from the plan to enable them to reach such conclusions as they wish,” the Chief Justice noted.
He characterised some aspects of the plan as being “excessively vague or aspirational”. When choosing examples to illustrate what he meant, he noted some from the agricultural sector.
How we got here
A timeline as to how we got to this stage is helpful in assessing how the court’s ruling may affect the Government.
The Act was introduced in 2015, and the statutory plan was adopted in July 2017. The Act envisages a series of plans, and the 2017 one was to run for five years, but was open to being altered.
The Friends of the Irish Environment challenged the plan in 2017, and the case was heard in the High Court in 2019. The environmental group lost, but appealed to the Supreme Court.
In 2018, while the High Court case was waiting to be heard, the government proposed a new climate plan, which became the Climate Action Plan 2019.
As this plan was not formulated using the provisions of the 2015 Act, it is not a statutory plan.
The 2019 plan, which some argued was itself a response from the then government to the court action, included a proposal to introduce amendments to the 2015 Act.
The heads – or general outline – of this proposed amending Bill were published late last year.
The current coalition’s programme for government, agreed in June, includes a commitment to introduce a climate amendment Bill in its first 100 days.
This aspect of the Government’s programme is a very challenging one. The coalition is committed to an average 7 per cent per annum reduction in overall greenhouse gas emissions, from next year to 2030, and to zero emissions by 2050.
“The 2050 target will be set in law by the Climate Action Bill, which will be introduced in the Dáil within the first 100 days of government alongside a newly established Climate Action Council,” the programme states. “The Bill will define how five-year carbon budgets will be set,”
Those within the Government pressing for legally binding specifics to be included in a new statutory plan, can now argue that further international embarrassment, and the Four Courts, await any failure to adequately do so.