Irish High Court recognises personal constitutional right to environment

Merriman v Fingal County Council; Friends of the Irish Environment Clg v Fingal County Council [2017] IEHC 695

Summary

In November 2017, the Irish High Court recognised the existence of a personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large.

The judgment arose from a decision regarding an application for judicial review by two applicants seeking to challenge an administrative decision of the Fingal County Council. In an exercise of statutory power, the Council had granted an extension of time to a planning permission for the Dublin Airport Authority, with the intended effect of allowing the Authority further time to construct a new runway at Dublin Airport.

Facts

The first applicant comprised a group of concerned citizens and the second applicant was the Friends of the Irish Environment, a body corporate whose objects include the protection of the Irish environment.

The applicants submitted that there exists, and should be recognised by the Court, an unenumerated personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large. The applicants contended that this personal right exists in balance with all other rights under, among others, Article 40.3.1 of the Irish Constitution (Constitution). Article 40.3.1 is set out under the sections of the Constitution headed "Fundamental Rights" and "Personal Rights". It states that "the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen".

The applicants argued that the decision of the Fingal County Council (Council) to grant an extension of time for the completion of the new runway at Dublin Airport interfered with the personal constitutional right to an environment consistent with the human dignity and well-being of citizens at large. The statutory power relied upon by the Council was under section 42(1)(a)(ii) of the Planning and Development Act 2000 (PADA), which grants to a relevant planning authority the power to decide an application for an extension of time in respect of a development consent. Under section 42, the Council was obliged to extend the consent for a period no greater than five years to enable the completion of the development, provided that the Council was satisfied of certain matters, including commercial, economic, planning and environmental considerations.

The first applicant sought leave to bring judicial review proceedings and both applicants sought relief by way of an order of certiorari quashing the decision of the Council, as well as various declarations.

Decision

There exists a personal constitutional right to the environment that is consistent with the human dignity and well-being of citizens at large.

The Court upheld a prior observation of the Supreme Court that the Constitution was given to the people by themselves to promote the common good so as to assure the dignity and freedom of the individual. In light of this, the Court held that it would be difficult to assure an individual's dignity and freedom if their natural environment, on which their well-being depended, was being progressively diminished.

While the Court recognised that there are a number of existing constitutional rights that may be relied on by individuals to bring claims to protect themselves against environmental harm, the Court held that there exists a broader underpinning personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large, and that this right is indispensable and an essential condition for the fulfilment of all human rights. It held that this right should enjoy protection under the Constitution, and that it is not so "utopian" that it can never be enforced, as it can be represented as specific duties and obligations.

The Court may expressly recognise a right that previously has not been expressly recognised.

The Court held that it had the power to recognise the existence of previously unenumerated rights. In determining this, the Court cited with approval two key cases.

The first, McGee v Attorney General [1974] IR 284, concerned the constitutionality of a statutory prohibition on the selling or importation of contraceptives for sale in or into Ireland. In McGee, the previously  unenumerated right was a woman's personal right to be assisted in her efforts to avoid putting her life in jeopardy. This right was recognised by the Supreme Court in justifying the plaintiff's exemption from the statutory prohibition.

The second, I O’T. v B. [1998] 2 IR 321, also recognised the role of judges in ascertaining and declaring the personal rights of the citizen other than those specified in the Constitution, and emphasised the importance of declaring such a right in clear and explicit terms.

The fact of a previously unenumerated personal constitutional right having ill-defined parameters does not prevent its existence.

The Court held that the recognition of the existence of a personal constitutional right is not contingent upon all issues raised by the right having been pre-identified and resolved, to the extent that this is possible. The Court acknowledged that such issues may be "manifold" but should not defeat the recognition of the existence of the right. By way of example, the Court referred to other recognised but unenumerated constitutional rights, such as the right to bodily integrity, which presents similar issues of ill-definition and yet has had its existence recognised.

The Court ultimately rejected the applicants' submissions for the Council's decision to be quashed, on the basis that the Council's decision to extend time under section 42 of the PADA did not disproportionately interfere with the personal constitutional right to an environment of the standard identified.

The Court granted leave to the first applicant to bring their judicial review application, but declined to grant relief to both the first and second applicants.

Commentary

This is a landmark case of recognition by a judicial body of the existence of a personal constitutional right to an environment that promotes human dignity and well-being. The Court's comments on such a right being fundamental to the fulfilment of all other human rights are likely comments that go further than recent environmental and climate change decisions.

While the Court expressed confidence in the potential for the right to be enforced, it deferred the definition and demarcation of the right to future decisions. The ultimate decision of the Court is a reminder of the difficulty of enforcing constitutional rights, even as they are recognised and upheld. The Court held that the exercise of statutory power by Fingal County Council did not "disproportionately interfere" with the right, but rather constituted "a proper and proportionate legislative interference" with the right. The Court did not provide elaboration on how it reached this conclusion in its test of proportionality of interference.

The human right to a safe and healthy environment has been recognised in some form in the majority of developed countries, although not currently in Australia, Canada or the United States. Last year, the Australian Panel of Experts on Environmental Law recommended that environmental democracy must have, as its foundation, respect for "an enforceable right to a clean and healthy environment". While it is unlikely that there will be constitutional reform in Australia to reflect this position, a renewed effort for a federal charter of human rights could provide a legislative basis for recognition of such a right in Australia.

The full decision is available here.

Connie Ye is a Lawyer at Allens.