No right to an environment in Constitution, State argues

The State has told the High Court there is no “unenumerated right” to an environment in the Constitution.

Unenumerated rights are not expressly mentioned in the written text of a constitution but are inferred from the the constitution, or cases interpreting it.

Lawyers for the State were responding to claims by an environmental group challenging a decision extending planning permission granted to the Dublin Airport Authority (DAA) for a second runway at Dublin Airport.

Friends of the Irish Environment, in proceedings against Fingal Co Couyncil and the State, with the DAA and Ryanair as notice parties, claim the proposed runway will lead to increases in Ireland’s greenhouse gas emissions.

Among its claims, it argues there is a constitutional right to life, bodily integrity, water, and health derived from an environment consistent with human dignity and well-being.

Represented by John Kenny BL, instructed by solicitor Fred Logue, Friends of the Irish Environment argues the runway will lead to an increase in the pace of climate change and will impact on the alleged rights.

Ciaran Toland SC, for the State, argued there is no unenumerated right to an environment in the Constitution and environmental policy was a matter for the Oireachtas and government.

The group’s claim that a legal right to an environment exists in 177 other countries was speculative, counsel said.

Any suggestion a right to an environment can be implied into the Constitution on the basis of an international consensus, when the European Convention on Human Rights does not contain such a right, was misconceived, he argued.

The group’s action is the third of three actions challenging the council’s decision to extend the runway permission by five years.

The DAA wants to build a €320 million, 3,110 metre runway, located on townlands north and north west of the airport terminal building, as part of its plans to turn the airport into an international hub.

The environmental group’s action argues the decision to extend planning permission is not in compliance with various EU directives, such as the Habitats Directive as well as the 2000 Planning and Development Act, and is unlawful.

It also claims the council has not justified its decision in light of the National Transition Objective set out in the Climate Action and Low Carbon Development Act 2015.

The group has also raised issues in relation to recognition of environmental rights in the Constitution.

A second challenge is by 22 individual residents — most with addresses at Kilreesk Lane, St Margaret’s, Co Dublin. They claim the development is illegal on grounds including the council failed to consider or address their concerns about the runway’s effect on their homes and lands.

They also claim an environmental impact assessment and an appropriate assessment of the possible impact the proposed development could have on the residents should have been done before the planning permission was extended.

The respondents and notice parties have opposed both actions.

The hearing of those two cases before Mr Justice Max Barrett continues.

The judge has already reserved judgment in a third challenge by the St Margaret’s Concerned Residents Group against the DAA.

In those proceedings, the group claims certain pre-construction works carried out by the DAA in December 2016 on the proposed runway amounts to unauthorised development. It is claimed the works were done before a waste management plan by the DAA was submitted to the council.