Constitutional Right to Environmental Protection

Conclusion as to Constitutional Right Contended For

For centuries, humanity has exploited the abundant resources of the natural environment. Until relatively recent decades, this process of exploitation was greatly untrammeled by legal restrictions, prompted perhaps by a notion that nature’s bounty is endless and an unawareness of the toll that humanity’s industrial and technological progress has taken, and is taking, on the quality of the environment that humanity requires for survival. The historically exploitative approach adopted by our ancestors towards the environment has, in Ireland, been tempered in recent years, not least by a generally beneficial and largely European Union-inspired environmental law regime which is informed in part by the experience of member states that have had to cope with industrialisation and its ill-effects to a greater extent and for a longer time than Ireland. (That environmental law regime is sometimes criticised for its complexity, but complex issues such as environmental protection are rarely, if ever, susceptible to simple solutions), Along with legislative change, and well within the lifetime of this Court, there has also surfaced a rising public concern about increasing environmental degradation and a greater public awareness that the quality of our life as a nation, and as members of the wider human community, is threatened by the processes which have yielded the very quality of life which we presently enjoy, It is in this pressing issue that resides within the Constitution an unenumerated and previously not expressly recognised personal right to an environment that is consistent with the human dignity and well-being of citizens at large.

A constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large may be perceived to raise so many issues as to make it a right that is more aspirational than practicable. The court has given examples of some of the questions that can present in this regard. But, again, the court does not accept that all these questions require to be addressed and to be answered before the right contended for can be recognised to exist. Other rights, such as freedom of speech, and even previously recognised, unenumerated constitutional rights such as the right to bodily integrity, face similar complications, being subject to limits can that only be defined, demarcated and understood over time, and yet they are recognised to exist.

What existing constitutional rights come into play when it comes to measures hostile to the environment? It seems that the following rights are of relevance: the right to life, the right to work and the right to private property. These rights are capable of supporting individual claims in particular environmental situations. However, this is a rudimentary form of environmental protection. Is there an underpinning, unenumerated personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large? Or, to put matters otherwise, are the individual protections touched upon above, and recognised at law, but particular manifestations of a right to an environment that is consistent with the human dignity and well-being of citizens at large, with this last right continuously informing or underpinning those individual protections, albeit that it has hitherto been to some extent obscured by them?

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 fulfillment 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. It is not so utopian a right that it can never be enforced. Once concretised into specific duties and obligations, its enforcement is entirely practicable. Even so, every dimension of the right to an environment that is consistent with the human dignity and well-being of citizens at large does not, for the reasons identified previously above, require to be apprehended and to be described in detail before that right can be recognised to exist. 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.

The European Convention on Human Rights

The Convention received a surprising lack of attention in the submissions before the  court. Indeed, the number of judicial review applications in which the Convention features in  the statement of grounds, gets lightly touched upon in the written submissions, and seems to peter out completely at oral hearing is striking. The Convention is a serious and important document, not lightly to be prayed in aid and, if referred to in pleadings, ought in truth to receive fulsome attention thereafter in order that a court may confidently proceed in the full knowledge of any human rights concerns contended to present. Human rights are too important and consequential for an alleged breach of those rights simply to be included in pleadings as a ‘catch all’ or supplementary ground by reference to which relief is sought and then scarcely touched upon thereafter.

It seems to the court that the public participatory process which preceded the grant of the new runway permission satisfies the State’s obligations under the above-mentioned Convention provisions. Insofar as there is no express statutory mechanism permitting further public participation following the grant of planning permission, any such restriction on subsequent public participation is justified by, and proportionate to, the public interest in, administering a functioning and efficient system of planning in Ireland.

The court acknowledges that while the European Court of Human Rights has, in a number of cases, considered the compatibility of procedural restrictions with the European Convention on Human Rights, including restrictions on public participation, many of these cases concern situations of inadequate (or no) public participation in circumstances where there is a clear risk to the health of residents from toxic emissions,

Further, the European Court held that there was no flaw in the decision-making process as, adequate studies had been carried out; the results of those studies had been made available to the public; and the applicants had access to judicial review. The European Court emphasized that, while the judicial review was split into phases due to the splitting of the decision-making process, this was due to the structure of French law, and the applicants had the occasion to participate in each phase of the decision-making process and to make observations.

Nothing in the case-law of the European Court of Human Rights suggests that there is a mandatory requirement of public participation where, the mere duration of an existing permission is extended.

Case I Applicants

The court respects the fighting-spirit of Ms Merriman and her fellow applicants and sympathizes with her and them as regards the predicament in which they find themselves. The court is satisfied to grant Ms Merriman and her fellow applicants leave to bring their judicial review application. However, it follows from the reasoning of the court in the preceding pages that it must respectfully decline to grant any of the reliefs sought of it at this time by Ms Merriman and her fellow applicants.

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