Environmental Law and Justice

Jamie McLoughlin

Introduction

In ‘Climate Case Ireland’, Clarke CJ, writing for a unanimous seven-judge Supreme Court expressed the view, albeit obiter, that the Irish Constitution does not protect a derived right to a healthy environment. However, he also indicated that express constitutional rights, like the right to life (Article 40.3), the right to the inviolability of the dwelling (Article 40.5), and property rights (Article 43), could be relevant in future cases of an environmental nature, i.e. he acknowledged the possibility that rights protected by the Irish Constitution might have ‘green’ content. In this regard,the case of Byrne v Abo Energy Ireland Ltd is worthy of examination as the High Court realised the potential suggested in ‘Climate Case Ireland’ that (at least certain) rights under the Irish Constitution contain ‘green’ content.  

Byrne v Abo Energy Ireland Ltd: A Brief Summary

Byrne concerned severe noise pollution emanating from wind turbines. The plaintiffs alleged that the noise from the turbines interfered with their ability to use and enjoy their property, including their family home, and therefore constituted a nuisance. They also claimed breaches of their constitutional rights to property and inviolability of the dwelling. Half way through the trial, the defendants admitted their liability for nuisance. The issues then became how were damages to be calculated, whether the nuisance should be abated by an order to shut down the turbines or in the alternative, payment (offered by the defendants) of ongoing compensation for continuous nuisance, and whether the tort of nuisance was inadequate to protect the underlying constitutional rights at stake such that the plaintiffs were entitled to invoke a separate claim for breach of constitutional rights.

Concerning the first issue, Quinn J held that the assessment of damages needed to reflect the fundamental constitutional interests involved, namely, the family home or ‘dwelling’ as a place of ‘refuge, rest, and relaxation’, as well as the principle of equality in that, for example, any interference with a person’s ability to relax by reading a book in their garden arising from noise nuisance from a neighbouring factory would be the same regardless of the monetary value of their property. Accordingly, he rejected the approach argued for by the defendants to calculate the level of compensation owed by reference to the notional damage done to the capital value of the plaintiff’s home. In terms of the second issue, Quinn J decided that notwithstanding the important public interest in the contribution made to renewable energy generation by the wind turbines in the context of Ireland’s climate targets, the appropriate from of abatement of nuisance was the issuance of a permanent injunction to shut down the wind turbines. His conclusion was informed by his finding that damages would be an insufficient remedy going forward for the extent of the interference with the plaintiffs’ ability to enjoy their home, and the unneighbourly conduct of the defendants which militated against them being allowed to pay damages for future nuisance in lieu of an injunction. However, it is the third issue, the adequacy of the tort of nuisance, and what this reveals about the content of constitutional rights that is the main focus of this blogpost.

Constitutional Rights and Tort Law

Quinn J recited the now well-established position that there is no need to invoke a constitutional right where an existing common law remedy, such as a tortious cause of action like nuisance, exists, provided that that remedy is adequate to vindicate the constitutional right in question. He cited the comments of O’Donnell J (as he then was) in Clarke v O’Gorman [2014] 3 IR 340, at 359 to this effect:

‘…existing torts and other causes of action known to common law are to be considered the method by which the State performs its obligation to vindicate the constitutional rights of the citizen. It is only therefore if it can be shown that the existing law does not adequately protect the constitutional rights of the citizen that a separate claim for breach of constitutional rights can be invoked.’

He referenced the case of Sullivan v Boylan (No. 2) [2013] IEHC 104 (Hogan J) involving a debt collector conducting a campaign of harassment outside of someone’s home as an example of where the tort of nuisance was found to be insufficiently protective of the interests safeguarded by the Constitution’s guarantee of the inviolability of the dwelling. In that case, a claim for damages based directly on Article 40.5 of the Constitution was permitted.

Given the nature of the harm experienced by the plaintiffs in this case, i.e. loss of ability to enjoy their home and property in peace, Quinn J was satisfied that the tort of nuisance could provide an adequate remedy in damages to vindicate the underlying constitutionally protected interests. The recognition that this conclusion entails, i.e. harm that is environmental in nature – here noise pollution from wind turbines – is capable of amounting to an interference with Article 40.5’s guarantee of the inviolability of the dwelling – remediable by the tort of nuisance – is highly significant as it signals that Article 40.5 contains green content. In other words, it indicates that Article 40.5 elevates the environmental dimension of the tort of nuisance to a constitutionally protected right to enjoyment of one’s home and property free from environmental nuisances.

‘Greening’ Constitutional Rights: Environmental Nuisance

In his analysis, Quinn J noted the ‘overlap’ between Article 40.5 of the Irish Constitution and Article 8 of the European Convention on Human Rights in its guise as protection against environmental nuisances as illustrated in the landmark climate judgment of the European Court of Human Rights in Verein Klimaseniorinnen Schweiz v Switzerland (Application Number 53600/20). He quoted from paragraph 514 of the Court’s judgment:

‘According to the existing case-law, in order to fall within the scope of Article 8 of the Convention, complaints relating to environmental nuisances have to show, first, that there was an “actual interference” with the applicant’s enjoyment of his or her private or family life or home, and, secondly that a certain level of severity was attained. In other words, they have to show that the alleged environmental nuisance was serious enough to affect adversely, to a sufficient extent, the applicants’ enjoyment of their right to respect for their private and family life and their home.’

And he then observed as follows:

‘The resonances between this analysis of the interaction between Article 8 of the ECHR in relation to environmental nuisances (in that case excessive heat waves) and the common law development of the law of nuisance are readily apparent…

…the conduct of the defendants on its face engages with the plaintiffs’ Article 40.3 and 40.5 rights. The admitted nuisance amounted to a substantial interference for a protracted period with the ability of the plaintiffs to enjoy the ordinary use of their home and in a manner which caused them substantial annoyance, discomfort, inconvenience and mental distress. In addition, the nature of this interference and its level of severity, as attested to by the experts and as supported independently by the recordings and data collected by the experts, reaches the level of severity to fall within the scope of Article 8 of the ECHR…It also, for similar reasons, would appear therefore to engage the plaintiffs’ Article 40.5 rights. The tort of nuisance is designed to protect a person’s property rights and the admitted nuisance here unquestionably engages the plaintiffs’ Article 40.3 property rights.’

Of course, if severe noise pollution from wind turbines is capable of constituting a nuisance sufficient to engage rights under Article 40.5 and Article 40.3 of the Constitution, then there is no reason why sea level rise, flooding, extreme temperature heatwaves, and other climate breakdown induced environmental phenomena which imperil people’s ability to enjoy their homes and property, cannot also do so. Accordingly, State failure to prevent or mitigate such identifiable threats to express rights could result in liability for breach of duties to protect and vindicate under Article 40 of the Constitution. The judicial ‘greening’ of constitutional rights in this way is badly needed in a country which despite its oft-professed love for the environment, routinely fails to live up to such rhetoric with meaningful political action.

Conclusion

The latest report from the EU’s Copernicus Climate Change monitoring service shows that Ireland’s exposure to extreme weather events (like Storm Éowyn) is set to increase due to rising temperatures. The Report forecasts that the breaching of the 1.5 degree global surface air temperature increase threshold – which has occurred in each of the last three years – is set to become the norm by 2030, rather than 2040 as predicted when states signed the Paris Agreement in 2015. This alarming finding is compounded by the recent admission by Ireland’s Minster for Climate, Energy, the Environment, and Transport, Daragh O’Brien TD, that the State will not meet its legally binding greenhouse gas emissions reduction targets by 2030. In light of such political failure to adequately tackle the threat of climate change, it is likely that rights-based environmental litigation will increase in Ireland. Indeed, at the end of January, a potentially ground-breaking case will be heard in the High Court in which the plaintiffs, including Community Law and Mediation’s Centre for Environmental Justice, will argue that the State’s climate action failures violate the constitutional right to life as well as the rights of future generations. The question that remains to be answered is whether the Courts are prepared to step in to ensure that constitutional rights are rights of substance in the face of existential ecological crises like climate change by imbuing them with ‘green’ content.