Friends of the Irish Environment CLG v. Fingal County Council [2017] IEHC 695 (Nov. 21, 2017)

Friends of the Irish Environment CLG v. Fingal County Council [2017] IEHC 695 (Nov. 21, 2017)

Friends of the Irish Environment (FIE) challenged a decision by the Fingal County Council to issue a five-year extension of its planning permission (originally issued in 2007) to the Dublin Airport Authority for the construction of a new runway.

The High Court denied relief on two procedural issues addressed at the outset of the opinion.  First, it declared that FIE’s arguments alleging the Council breached the EU Environmental Impact Assessment (EIA) Directive and Habitats Directive were impermissible collateral attacks on the validity of the planning permission because the claims were brought many years after the time period for such a challenge had passed.  Para. 9-12.  Second, the High Court determined FIE lacked standing because it did not participate in the planning process (none was provided) and, more importantly in the High Court’s estimation, the Council’s decision to extend its planning permission was not subject to the EU EIA Directive; therefore, FIE could not rely on the Directive or the Aarhus Convention to provide a cause of action.  Paras.  13-17.

Although the High Court denied relief on procedural grounds, it nevertheless addressed additional issues to provide a “comprehensive judgment” in the event of an appeal. 

FIE argued that the Fingal County Council violated the Climate Action and Low Carbon Development Act 2015, which requires public authorities to “have regard to . . . the furtherance of the national transition objective, and . . . the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.”  Para. 211 (emphasis added).  According to FIE, when the Council decided to extend its planning permission for the new airport runway — a decision that would lead to increased greenhouse gas emissions — it should have provided an explanation and justification for departing from the stated objectives of the Climate Action and Low Carbon Development Act 2015.  The High Court disagreed, declaring the Council adequately discharged its duties under the provision by simply considering the matter.  Para. 214.  The Court also noted that the Climate Action and Low Carbon Development Act 2015 does not modify the decisionmaking factors set out in the Planning and Development Act, which governs the Council’s process for granting planning decisions.  Id.

FIE advocated for the High Court to recognize a personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large.  The Court took up this claim, pronounced “[a] right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfilment of all human rights. It is an indispensable existential right that is enjoyed universally, yet which is vested personally as a right that presents and can be seen always to have presented, and to enjoy protection, under Art. 40.3.1° of the Constitution.”  Para. 264.  The Court explained that this right is not so “utopian” that can never be enforced, but will become enforceable once specific duties and obligations are identified. “Concrete duties and responsibilities will fall in time to be defined and demarcated. But to start down that path of definition and demarcation, one first has to recognise that there is a personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large and upon which those duties and responsibilities will be constructed. This the court does.” Id.

The High Court then turned to the question of whether a provision in the Planning and Development Act (s. 42) violated this newly-recognized (but ever-present) constitutional right by excluding the Council’s planning extension decision from public participation.  The Court found the provision to be a “proper and proportionate legislative interference” with the right and declined to rule in FIE’s favor.