Environmental Law and Justice

Dublin, 10 December 2025

This submission is prepared by Alessandra Accogli and Diarmuid Torney from the Institute for Climate and Society at Dublin City University (DCU) and Candice Maharaj, Amy Strecker, Amanda Byer and Andrew Jackson on behalf of the Environmental Law and Justice Group at University College Dublin (UCD) Sutherland School of Law. There are multiple challenges to realising a right to a healthy environment in Ireland, which is increasingly important given the steady increase in land degradation, water pollution, biodiversity loss and climate change. The lack of substantive rights in this area stands in sharp contrast to the relative latitude granted to various industries to continue polluting practices. For this submission, our focus is limited to the environment-related human rights issues identified in Question 3, with particular attention to both substantive elements (1), and procedural elements (2), as well as scope for action (3).

We would be very happy to host one or more events during the Special Rapporteur’s visit at either or both of our universities, potentially in collaboration with other universities and civil society organisations (see section 4 for further details).

We would also be happy to provide further input on any of the questions below, or on questions not covered in the present submission.

1. Issues related to the protection/realisation of substantive elements of the right to a healthy environment

The Bunreacht na hÉireann (the Irish Constitution) does not explicitly contain a human right to a healthy environment.

In 2017, in Friends of the Irish Environment (FIE) v Fingal County Council, the High Court held that ‘the right to an environment that is consistent with the human dignity and well-being of citizens at large’ enjoys protection under Article 40.3.1° of the Irish Constitution in light of the doctrine of ‘derived’ or ‘unenumerated’ rights.^[1] According to the latter, a human right can be derived from the general guarantee of ‘personal rights’ in Article 40.3 of the Constitution, even if it is not explicitly mentioned in its text.^[2] However, in FIE v Fingal County Council, Mr Justice Barrett limited himself to recognising the right but did not provide an answer to the questions raised about the contours of the right.^[3]

In 2020, in FIE v Government of Ireland (‘Climate Case Ireland’), the Supreme Court disagreed with the High Court’s conclusion on this point, holding that there is no derived right to a healthy environment in the Constitution. The court stated that such a right was either unnecessary if it did not go beyond the existing rights to life and bodily integrity or impermissibly vague if it did,^[4] since there should be a ‘concrete shape’ to the right before it is recognised as a human right.^[5] The court clearly felt that a referendum would be a more appropriate means of recognising such a right. As the court stated, ‘in most of the states where a constitutional right in the environmental field has been recognised, same has been achieved by the inclusion of express wording in the constitutional instruments of the state concerned’.^[6] However, the scope of existing constitutional rights may not be wide enough to accommodate the various impacts of environmental degradation on individuals, especially with regard to long-term impacts and future generations. For example, the right to bodily integrity, which is a derived right under Article 40.3 of the Irish Constitution, is primarily limited to risks to a person’s health.^[7] Thus, the threshold for establishing that environmental degradation constitutes a human rights issue is higher than it would be if a standalone right to a healthy environment was recognised.

While case law in Ireland shows signs of indirect engagement with the right to a healthy environment via existing constitutional rights, environmental harm will not be treated as a standalone human rights issue unless the Constitution explicitly recognises such a right. Instead, it must be linked to a specific impact on an individual’s health or, at least, private sphere, an approach that carries significant evidentiary challenges. This was illustrated in Coyne v An Bord Pleanála, where the High Court dismissed a challenge to a proposed data centre development on the basis that the applicants had not provided evidence of any causal link between the operation of the data centre and an infringement of their personal rights.^[8]

The lack of a standalone environmental human right creates a lacuna in the existing framework of rights in Ireland and reduces avenues for justice.

2. Issues related to the guarantee of procedural elements of the right to a healthy environment, in particular access to justice

Ireland’s procedural environmental rights are grounded in the Aarhus Convention, which guarantees access to information, public participation, and access to justice in environmental matters. Although Ireland has ratified the Convention, it is not part of domestic law in light of the Irish dualist legal system, as the Oireachtas (Irish Parliament) has not passed legislation to this effect.^[9] While section 8 of the Environment (Miscellaneous Provisions) Act 2011 provides that ‘judicial notice’ must be taken of the Convention, this does not amount to a strong or comprehensive domestic implementation of the Convention. The latter becomes indirectly binding in Ireland through EU legislative measures implementing it in the Member States, together with the Court of Justice of the EU’s purposive approach to its interpretation.^[10]

However, recent changes to national law under the Planning and Development Act 2024 (PDA 2024) have curtailed access to justice in environmental matters, especially concerning standing and legal costs. The Act has raised the bar for individuals, NGOs and unincorporated associations when it comes to standing. First, individuals who have not participated in the decision-making process must show that they are, or may be, directly or indirectly materially affected by the matter in order to have standing.^[11] Second, unincorporated groups face strict requirements, including the need for a written constitution, a governing body, and a minimum of two-thirds of its members voting in favour of bringing legal proceedings.^[12] Third, in order to have deemed standing in EIA cases, NGOs must have a constitution with an environmental object, must have a minimum of 10 members, and the board of directors must have passed a resolution authorising the bringing of proceedings.^[13]

The 2024 Act is particularly problematic on the question of legal costs and the need, pursuant to the Aarhus Convention, to avoid prohibitive expense. Historically, the potential for applicants to be exposed to high litigation costs has proven one of the main barriers to accessing environmental justice in Ireland. The general rule in civil litigation in Ireland is that costs follow the event (i.e. the loser pays).^[14] However, this rule has been displaced in the case of certain planning and environmental actions by special costs rules under Irish law adopted pursuant to the Aarhus Convention and EU law, which aim to ensure that planning and environmental litigation is not prohibitively expensive, and provide that:

(a) as a starting principle, each side bears its own costs; and

(b) the court has discretion to award (only) a winning applicant its costs or part thereof.^[15]

Where these special rules apply, an applicant can be confident that they will not be exposed to the other side’s costs in the event that the applicant loses.^[16] Further, applicants in planning and environmental cases can often, in light of these rules, find lawyers willing to act for them on a ‘conditional fee’ basis. In such cases, the applicant will not pay its lawyers for their time unless and until the applicant’s action is successful, at which point there may, at the court’s discretion, be an award of costs against the respondent (typically the State or a public body) in the applicant’s favour, which will serve to pay the applicant’s lawyers for at least part of, and perhaps all of, their time.

With a view to reducing the amount of planning and environmental litigation in Ireland, the 2024 Act provides for the costs system described above to be replaced (these new costs rules have not yet been commenced). In its place, while each party will continue to bear its own costs as a first principle, the Government will prescribe the maximum amount that the court may award to a winning applicant. The Government recently went out to public consultation on the proposed maximum ‘caps’ for different types of cases.^[17] As the report informing these proposals states, the proposed standard cap is ‘significantly less’ than the average applicant legal costs payment in the past.^[18] The result will be that public interest applicants – who rely on lawyers acting for them on a ‘no win, no fee’ basis – will likely find it difficult to find lawyers who are willing to act for them in the future; this will likely lead to individuals and NGOs seeking to represent themselves as ‘lay litigants’ in court. In contrast, respondents and developers will continue to be able to pay their lawyers on a full market basis, meaning that there is likely to be an equality of arms issue.

While section 295 of the PDA 2024 introduces a financial assistance mechanism (legal aid) to contribute towards the legal costs of applicants who do not succeed in obtaining relief in judicial review proceedings or who succeed in obtaining such relief only in part, the parameters of this (uncommenced) scheme remain entirely unclear. However, it is clear that the scheme will be means-tested, meaning that it will not be available to all.

Further, in addition to capping winning applicants’ ability to recover costs, the Government recently indicated that it is exploring further reforms aimed at ‘ensur[ing] that applicants face an element of [financial] jeopardy in taking cases’.^[19] The example cited is the UK’s system of requiring individual applicants to pay GBP £5000 and NGO applicants GBP £10,000 when they lose a case.^[20] In addition, and more generally, the Government indicates that ‘There will also be an examination of the appropriateness of ‘no foal, no fee’ structures, and their impact on the courts system’.^[21] In other words, having already taken steps to make it unattractive for lawyers to act for public interest applicants by capping the legal costs payable to winning applicants, the Government is now apparently exploring whether it should prohibit ‘conditional fee’ arrangements altogether, which is currently the central method for securing public access to environmental justice in Ireland.

Besides access to justice concerns, the UNECE Aarhus Convention Compliance Committee has raised issues about the compatibility of the PDA 2024 with the Convention’s other core rights: public participation and access to information. The Committee’s November 2025 report notes potential restrictions on public participation in planning decisions, particularly for applications to alter, extend, or revoke existing permissions.^[22] For example, the vague wording of section 138(2)(b) could be interpreted in a way that excludes public participation in some applications to extend permission durations.^[23] The report also states that it is not satisfied that adequate provisions have been made to ensure that appeals under the Access to Information on the Environment Regulations can be decided in a timely manner,^[24] and that, in the case of a successful appeal, the information request is fulfilled in a timely, adequate, and effective manner.^[25] Refusals by public authorities have created a backlog of appeals, and in recent years, a substantial number of decisions to withhold information were successfully challenged and annulled.^[26]

Overall, these reforms undermine the procedural pillars of the right to a healthy environment, limiting access to justice for individuals, NGOs and informal community groups, as well as public participation and access to environmental information.

Lastly, procedural rights in the Republic of Ireland are inextricably linked to those of Northern Ireland where developments posing significant adverse effects on the right to a healthy environment straddle the political border separating the north from the south. One such case is the current application by a Canadian mining company (Dalradian Gold) to mine for gold and other metals in the Sperrin mountains, one of the most legally protected landscapes in Europe. In addition to constituting the largest mining application in the history of the island, the mine operation site (which includes a 17-storey tailings dam to be located 1200m from the local primary school) is ecologically connected to the catchment area of the River Foyle and Tributaries, a Special Area of Conservation (SAC) including the River Finn SAC, posing risks along the catchment in the Republic of Ireland including to drinking water and protected species such as the Native Atlantic Salmon. There have been several procedural barriers to effective participation of the public to date due to a lack of access to information about the mine and ancillary developments, the belated notification to the Republic of Ireland concerning the possible transboundary effects (only in January 2025), and the lack of possibility of citizens in the Republic of Ireland to access the public inquiry except in person.^[27] The public inquiry into the mining project will resume on 13 April 2026 and although 1600 citizens and statutory bodies from the Republic of Ireland made public submissions in the transboundary consultation that eventually took place, the inquiry will not be live-streamed or recorded, and if Irish citizens wish to be present at the public inquiry, they must travel to Omagh for a total of 22 days from April to June when the public inquiry is scheduled. This presents a barrier to effective participation.

 3. What needs to be done: Embedding substantive and procedural environmental rights and duties expressly within the Irish legal system

In April 2023, the government-mandated Citizens’ Assembly on Biodiversity Loss (CABL) recommended holding a referendum to insert both substantive and procedural environmental human rights into the Irish Constitution, including rights to a ‘clean, healthy, and safe environment’ and to a ‘stable and healthy climate’,^[28] a recommendation that was accepted in principle by the parliamentary committee of both Houses tasked with considering the CABL’s final report.^[29] Finally, in the government’s October 2024 response to the recommendations, the status of this recommendation is listed as ‘in progress’, with the report indicating that the National Parks and Wildlife Service – responsible for protecting and conserving Ireland’s natural heritage and biodiversity – is tasked with exploring how the rights of nature could be formally recognised, including the possibility of constitutional change. The response also states that Ireland is a member of the Aarhus Convention, with no other mention of human environmental rights, substantive or procedural. Apart from the fact that the human right to a healthy environment is no longer mentioned, the government’s response raises questions about the extent to which this recommendation is actually being implemented. The call to embed substantive and procedural environmental rights and duties expressly within the Irish legal system, including in the Constitution and in complementary implementing legislation, was reiterated in a 2025 report commissioned by Community Law and Mediation’s Centre for Environmental Justice.^[30]

In conclusion, our position on the above issues is as follows:

1. Ireland should propose constitutional amendments recognising the right to a clean, healthy, and sustainable environment, as recommended by the CABL. This reflects democratic deliberation and would, if adopted, strengthen environmental governance.
2. The Government should publish a transparent implementation plan, including timelines and responsible departments, for embedding environmental rights protections in both the Constitution and ordinary legislation. The current ‘in progress’ designation lacks detail and risks indefinite deferral.
3. Ireland should align the PDA 2024 with Aarhus-compliant procedural rights, and should not take any further steps that will have the effect of undermining these rights. Recent reforms significantly weaken access to justice, contrary to Ireland’s obligations under the Aarhus Convention.                                                                                                                  
4. There needs to be much greater cooperation between the Republic of Ireland and Northern Ireland in environmental matters, especially concerning public participation in the planning process for projects in either jurisdiction that pose significant transboundary impacts.^[31]

The visit of the UN Special Rapporteur Astrid Puentes Riaño can bring much needed attention to these issues by publicly reaffirming that constitutional recognition of environmental human rights is consistent with international human rights standards, particularly following the recognition of the right to a healthy environment by both the Human Rights Council and the UN General Assembly, and is increasingly being adopted across jurisdictions.

In this regard, we would be grateful if the Special Rapporteur raised the following questions with the Department for Housing, Local Government and Heritage (and any other public representatives) during her visit:

• What concrete steps have been taken to implement the CABL recommendation to insert environmental human rights into the Constitution?
• How will the Government ensure alignment with the Aarhus Convention’s procedural guarantees, particularly in light of recent legislative reforms by way of the PDA 2024?
• What plans does the Government have for greater cooperation with Northern Ireland on environmental issues?

4. Key contacts, organisations and places to visit

Special Rapporteur Puentes Riaño is warmly invited to visit both the Environmental Law and Justice (ELAJ) Research Group at UCD Sutherland School of Law & the Institute for Climate and Society at DCU School of Law and Government to present her work and discuss the Irish context in further detail. We would be happy to host one or more events, which could involve a combination of faculty and students. These events could be hosted within the framework of the All Island Climate and Biodiversity Research Network (www.aicbrn.net), which brings together researchers across the island of Ireland from a range of disciplines and perspectives.

The UCD ELAJ Research Group (https://elajucd.com/) brings together researchers and practitioners working across the full spectrum of environmental law. Its members contribute cutting-edge research, policy engagement, and strategic litigation, including work on landmark cases such as Climate Case Ireland and ongoing projects on land and spatial justice through the ERC-funded Property Injustice project (https://www.landlawandjustice.eu/). The Group fosters interdisciplinary dialogue with a view to collaborating on thematic challenges facing the environment (including its natural and cultural dimensions). These efforts engage the underlying issues where the right to a healthy environment, climate change and environmental democracy/access to justice often intersect.

The DCU Institute for Climate and Society (www.dcu.ie/climate) is Ireland’s first academic research institute devoted specifically to promoting perspectives on climate change from the social sciences and humanities. The mission of the Institute is to shape and support societal responses to climate change in Ireland and around the world. The Institute’s research, education, and engagement activities start from the premise that the solutions to climate change are available, and that the blocks to action are to be found in social processes and dynamics. The Institute examines how different social arenas such as politics, media, education, business and policy can influence climate action.

We welcome the opportunity to discuss our work with the Special Rapporteur during her visit.

Sincerely,

Alessandra Accogli (DCU, Institute for Climate and Society)

Amanda Byer (UCD, ELAJ Research Group’s Convenor)

Andrew Jackson (UCD, ELAJ Research Group’s Deputy Convenor)

Calum MacLaren (UCD, ELAJ Research Group)

Candice Maharaj (UCD, ELAJ Research Group)

Sinéad Mercier (UCD, ELAJ Research Group)

Christie Nicoson (UCD, ELAJ Research Group)

Amy Strecker (UCD, ELAJ Research Group)

Diarmuid Torney (DCU, Institute for Climate and Society’s Director)

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[1] Friends of the Irish Environment v Fingal County Council [2017] IEHC 695, para 264 (FIE v Fingal County Council).

[2] Ryan v Attorney General [1965] IR 294 (SC), 295.

[3]  FIE v Fingal County Council (n 1), paras 255 and 264.

[4] Friends of the Irish Environment v The Government of Ireland [2020] IESC 49, para 8.14 (Climate Case Ireland).

[5] ibid, para 8.11.

[6] ibid, para 8.12.

[7] Ryan v Attorney General (n 2) 314.

[8] Coyne v An Bord Pleanála, Ireland and EngineNode [2023] IEHC 412, paras 235-236, 276-288 and 328.

[9] Aine Ryall, ‘Realising Environmental Information Rights: The Impact of the Aarhus Convention in Ireland’ (2015) 4 Environmental Law and Practice Review 1, 4-5.

[10] ibid, 5; see also Orla Kelleher and Mary Dobbs, ‘Constitutionalising Environmental Rights. Practical Insights into the Irish Context’ (Community Law and Mediation 2025) 30 <https://communitylawandmediation.ie/wp-content/uploads/2025/06/CLM-Report-Right-to-a-healthy-environment-Report-online.pdf>.

[11] Planning and Development Act 2024, s 286(1).

[12] ibid, s 286(4)(d).

[13] ibid, s 286(2).

[14] Rules of the Superior Courts, order 99.

[15] Environment (Miscellaneous Provisions) Act 2011, s 50B PDA 2000 and Part 2.

[16] The potential extent of such costs is illustrated by Klohn v An Bord Pleanála, a case which predated the introduction of Ireland’s special costs rules, in which Mr Klohn was required by the Taxing Master to pay €86,000 to the Board, having lost his case. After two preliminary references to the CJEU (Cases C-167/17 and C-739/19), the Supreme Court [2021] IESC 51 ultimately reduced Mr. Klohn’s liability to €1,250 to reflect the “not prohibitively expensive” requirement under the Aarhus Convention and EU law.

[17] See https://www.gov.ie/en/department-of-climate-energy-and-the-environment/consultations/consultation-on-the-regulation-of-costs-payable-in-matters-prescribed-on-foot-of-section-295-of-the-planning-and-development-act-2024-scale-of-fees/

[18] ‘Report on the Regulation of Costs Payable in Matters Prescribed on Foot of Section 294 of the Planning and Development Act’ <2024https://assets.gov.ie/static/documents/80814027/Report_on_the_Regulation_of_Costs_Payable_in_Matters_Prescribed_on_Foot_of_Section_294_of_the_Planning_and_Development_Act_2024.pdf>.

[19] Department of Public Expenditure Infrastructure, ‘Accelerating Infrastructure Report and Action Plan’, 41 <https://assets.gov.ie/static/documents/a1ef9433/Accelerating_Infrastructure_Report_and_Action_Plan.pdf>.

[20] ibid.

[21] ibid.

[22] UNECE, ‘Report of the Compliance Committee on decision VII/8i of the Meeting of the Parties concerning compliance by Ireland’ ECE/MP.PP/2025/55 (November 2025), paras 67-77.

[23] ibid.

[24] ibid, para 155.

[25] ibid, paras 177-182.

[26] Kelleher and Dobbs (n 10) 16-17.

[27] Amy Strecker, V’cenza Cirefice, Alison Hough and Ciara Brennan, ‘Transboundary Environmental Justice: Gold Mining in the Sperrin Mountains’ (EJNI Research Report, April 2025) <https://ejni.net/wp-content/uploads/2025/07/EJNI-Transboundary-Consultation-Sperrins-08.04.25.pdf>.

[28] Citizens’ Assembly, ‘Report of the Citizens’ Assembly on Biodiversity Loss’ (March 2023) 16 <https://citizensassembly.ie/wp-content/uploads/Report-on-Biodiversity-Loss_mid-res.pdf>

[29] Houses of the Oireacthas, ‘Joint Committee on Environment and Climate Action. Report on the Examination of Recommendations  of the Citizens’ Assembly Report on Biodiversity Loss’ (December 2023) <https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/joint_committee_on_environment_and_climate_action/reports/2023/2023-12-14_report-on-the-examination-of-recommendations-of-the-citizens-assembly-report-on-biodiversity-loss_en.pdf>

[30] Kelleher and Dobbs (n 10).

[31] Environmental Justice Network Ireland and Friends of the Earth Northern Ireland, ‘Human rights and the transboundary environment on the island of Ireland’ (December 2025) <https://ejni.net/wp-content/uploads/2025/12/Transboundary-Environmental-Rights-Submission-to-the-UN.pd>.