The right to a healthy environment is a complex issue, and this is reflected in the European Court of Human Rights [ECtHR] approach to the subject.  Although, the European Convention on Human Rights [ECHR] does not enshrine any explicit right to a healthy environment, environmental jurisprudence has developed due to the exercise of convention rights being undermined.  The rise in environmental awareness due to the risks posed by climate change has resulted in an increase of environmental NGO’s and public interest groups taking legal action against governments over their lack of action to combat climate change. The difficulty of public interest litigation, based on the ECHR, is that Art 34 precludes these groups from access to the ECtHR. This poses the question of whether the governments will soon have to legislate on this issue?  

The most valuable decision to date on this issue is that of State of Netherlands v Urgenda Foundation [Urgenda], an unprecedented case in the EU which galvanized the media and public interest in 2015. Urgenda argued that Article 2 and 8 of the ECHR imposes positive obligations on the government to take precautionary steps against climate change. In Ireland, the recent “Fossil Fuel Divestment Bill” used similar reasoning. 

In the Urgenda case, the court provided a rather political judgement by confirming the State owes a duty of care to its citizens, under Art 2 and 8 ECHR, to reduce greenhouse gases. However, the government argued that the impacts of climate change are too uncertain as a basis for a claim. Such language suggests that the court is reluctant to interfere in such a delicate domain. 

In a similar vein, the Irish NGO ‘Friends of the Irish Environment’ initiated legal action earlier this year to address the government’s contribution to climate change, the so called Climate Case Ireland. This case centers on the government’s approval of the ‘Mitigation Plan’ in 2017, which, it is argued, violates the Climate Action, the Low Carbon Development Act 2015 , human rights obligations, and falls short of the Paris Agreement on Climate Change on reducing carbon emissions. Arguably, if the High Court decides to quash the ‘Mitigation Plan’, the right to a healthy environment as a human right would be recognized.      

This case, which is the first in Irish history where citizens are seeking to hold their government accountable for contributing to climate change, is still awaiting judgement from the High Court.

Photo: Thomas Millot via Unsplash

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