Today seven judges of the Supreme Court will sit to hear an appeal from An Coimisiún Pleanála against a decision by Judge Richard Humphreys in the High Court last January. The case relates to the planning of a wind farm. It was the first judgment to consider in detail the nature and scope of the obligation imposed on public bodies under Section 15 of the Climate Action and Low Carbon Development Act 2015. The legislation was amended in 2021, in what the judge described as a “step change” from a “have regard to” to a “comply with” obligation regarding our climate targets. The speed at which the appeal is being heard and the number and experience of judges on the bench are an indication of how important a case it may be.
Our judicial system is increasingly in the front line in the fight to avert catastrophic climate change. Last year, in the so-called Swiss grannies’ case, the European Court of Human Rights ruled in favour of a group of campaigning Swiss women in finding that Switzerland had violated their human rights by not taking sufficient action to mitigate climate change.
Similarly, a German Court, while in the end not awarding damages to the Peruvian farmer taking a case against a large German energy company for its climate emissions, still established a precedent for holding major greenhouse gas emitters liable for climate-related risks under German civil law.
Equally relevant was a decision by the Northern Ireland High Court in Belfast last month to quash permission for a proposed upgrade of the A5 road, between Derry and Aughnacloy, Co Tyrone. The judge said the authorities had failed to demonstrate how it fit into plans, strategies and policies that map out a realistic and achievable pathway to a net zero target by 2050.
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The number of legal challenges in relation to transport projects suggests that it, along with energy, is likely to be one of the key legal battlegrounds. The A5 decision may lead to a rethink within Transport Infrastructure Ireland, because several of its major roads projects go against everything we need to do to meet our climate targets.
Even if we get all the electric vehicles aimed for under our climate plan, we will still need a 25 per cent reduction in daily car journeys in the next five years to get on the right path. To get there, we need easy access to alternative low-carbon options, so we are going to have to reallocate road space to improve walking, cycling and public transport. In a State which has promoted car dependency for decades, that change is going to be hotly contested.
The fact that better low-carbon solutions are now at hand will help. I can understand the frustration for those fighting for the new A5 road on safety grounds. Yes, that road needs to be made safe. But there is also an opportunity to build the new rail line recommended by the recent Strategic Rail Review, running from Portadown to Dungannon, Omagh, Strabane, Letterkenny and Derry. It would take cars off the road, and be a game changer for the whole northwest.
In energy, the political challenge for a non-fossil fuel producer such as Ireland is so much easier because the cleaner alternative is where all the innovation, investment and savings are already happening. It is also a new economy – something we are quite good at, although you rarely hear that perspective. In 2001, the average Irish person was responsible for 19 tonnes of CO2 being emitted. That figure is now down to 10. The next reduction to five tonnes per person is imminently achievable and will be good for us as well as the environment.
Last month, we stopped burning coal in our power system. More wind and solar power will similarly allow us to switch away from expensive and polluting natural gas. In transport, every time we improve the sustainable alternatives, the Irish public responds with a large increase in patronage. Look at how rural bus use went up 165 per cent over the last five years, once we started to provide a proper service. Similarly, Irish farmers showed what is possible when they used 30 per cent less fertiliser in the first year of the Ukraine war and still maintained their productivity. Our carbon tax is an example internationally of how to effectively fund the retrofitting of hundreds of thousands of warmer homes and bring people out of energy poverty.
The idea, popular among those invested in the status quo, that the low-carbon solutions do not work, or are going to cost us a fortune, is perhaps what is on trial, in the end, in so many of these cases. The courts will have to independently decide between those arguing that we should protect business as usual and those asking that we respect their rights under the European Convention on Human Rights and stop the destruction of our natural world.
This transition has been clearly mandated by the United Nations, by our European Union and by the Oireachtas through extensive legislative provision, and well considered policy direction. Recent decisions offer some hope that it may now also have increasing judicial support.
