7 August 2020

A week ago today, the Supreme Court unanimously ruled that the Government’s 2017 National Mitigation Plan was inadequate to address the threat of climate change.

It was a historic judgment, to say the least, and campaigners and activists the country over celebrated the unprecedented win.

But what exactly did the ruling say, and what does it mean going forward? We spent the week taking a deeper dive into the judgment and chatting to Dr. Áine Ryall, Co-director of the Centre for Law and the Environment at University College Cork, who helped us get through it all in bite-size pieces.

Let’s dig in.

Remind me, what did the Court actually say last week?

The seven judges of the Supreme Court all sided with Friends of the Environment (FIE) on 31 July 2020 and declared that the 2017 National Mitigation Plan fell “well short” of what was required by law.

What do they mean by required? Simply put, the Plan had to comply with the 2015 Climate Act.

In this Act, the government committed to pursue, and achieve, the transition to a “low carbon, climate resilient and environmentally sustainable economy by end of the year 2050”.

And in their ruling, the Court quashed the 2017 National Mitigation Plan. The government must therefore make a new plan which takes account of what the Supreme Court said about the degree of specificity required by law as regards to the measures set out in the Plan to deliver the 2050 objective.

Another thing that’s important in this ruling is that the Supreme Court gave “significant weight” to the views of the Climate Change Advisory Council, who have been very critical of the State in the past for the lack of progress in meeting climate targets.

And one last thing to keep in mind – the High Court had ruled against FIE in September 2019 after hearing their case.

The appeal from the High Court judgment then leapfrogged straight on up to the Supreme Court, bypassing the Court of Appeal, which, Dr. Ryall said, “confirms that the issues involved here were issues of general public and legal importance”.

So, if I have this right, the Court basically intervened in politics? Does this mean they can do this for any policy?

No. The Supreme Court in this case determined what the 2015 Act required. This is a matter of law, not policy.

The National Mitigation Plan must comply with the requirements set down in the 2015 Act.

As the Chief Justice observed, “what might once have been policy has become law by virtue of the enactment of the 2015 Act”.

Okay, so we’re talking about the 2015 Act and the 2017 National Mitigation Plan here, but did the Climate Action Plan from 2019 have anything to do with this case?

As we’ve said before, the case brought against the government by FIE involved a challenge to the 2017 National Mitigation Plan on the basis that it did not comply with the 2015 Act.

Last year’s plan wasn’t made under the 2015 Act. So it is not a formal statutory plan like the National Mitigation Plan is.

But, the State did bring up the 2019 Plan in its defense during the Supreme Court hearing. It argued essentially that climate policy continues to evolve and a much more detailed plan now exists in the form of last year’s plan.

However, the challenge was to the 2017 Plan, and that’s what was on the table for the Court to consider.

Okay, I’m with you. So we have a ruling, and how important would you say it is?

Well, in Dr. Ryall’s words, it’s “landmark” with wide-ranging implications.

In the ruling, Dr. Ryall tells us, the Court says a “reasonable and interested person” must be in a position to make a judgment as to whether or not the National Mitigation Plan is realistic and if they agree that the policy options available in the Plan can achieve the 2050 objective.

This part of the judgment, according to Dr. Ryall, “is very strong on public participation and on the need for transparency as regards Government policy on climate action”.

Right, so we have this landmark ruling with a strong position on public partipication AND the Government has to make a new Mitigation Plan. That sounds good! What happens now?

As we’ve already established, all that has happened so far, in the simplest of terms, is that the Supreme Court has quashed the National Mitigation Plan and the Government must now make a new one.

And in this new plan, the Government has to take into account what the Supreme Court has said about the degree of specificity required by law when setting out the measures designed to deliver the national transition objective by 2050.

While we don’t know right now when this new plan will emerge, the judgment, Dr. Ryall says, “is very timely”.

“The Programme for Government promises a new climate legislation within the first 100 days in office. It is anticipated that this forthcoming legislation will bring about a number of very significant changes, which include making provision for five-year carbon budgets as well as a new and stronger Climate Action Council,” she told us.

So, remember as we said eariler: the ruling gave “significant weight” to the views of the Climate Change Advisory Council, which is set to be reviewed and strengthened into what will become the Climate Action Council.

The Climate Action Council will be provided for in this aforementioned new climate legislation that is due to arrive in the Dáil within the first 100 days of this government.

(I’m pretty sure I just broke my own record for the word “climate” in a set of paragraphs. Moving swiftly on).

So essentially in a line, the ruling, “adds momentum for more ambitious and more urgent climate action from Government,” according to Dr. Ryall.

Alright, so we have a new plan that needs to be written up and the promise of new climate legislation that now has the weight of this ruling behind it. Dare I say it – can I be optimistic?

Yes, there is cause for optimism, Dr. Ryall believes. However, that’s no reason for the public to let up.

“Everything turns on the public keeping up the pressure on Government for more ambitious and more urgent action on climate,” Dr. Ryall reminded us.

And in regards to the law, the ruling means that all future National Mitigation Plans are subject to judicial review, like what we just saw here.

The possibility of judicial review, Dr. Ryall, says “will (hopefully) concentrate the Government’s mind” as they sit down to pen the new plan.

Our immense gratitude to Dr. Ryall for insight and expertise. We’ll have lots of explainers coming your way this month, so keep an eye out!