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On 23 August 2024, An Bord Plean\u00e1la, the Irish planning authority, had refused permission for the windfarm on the basis that such a development would materially contravene the local development plan and would therefore be contrary to the proper planning and sustainable development of the area. Irish planning legislation requires An Bord Plean\u00e1la to consider a local development plan but it also gives the Board discretion to grant planning permission even where the proposed development would materially contravene such a plan.<\/p>\n
On 14 October 2024, the applicant windfarm company was granted leave by the Irish High Court to judicially review the decision of An Bord Plean\u00e1la refusing planning permission. The applicant claimed that by not overriding the local development plan and granting planning permission to the windfarm, the Board acted unlawfully and failed to exercise its discretion in accordance with section 15 of the Climate Action and Low Carbon Development Act 2015 (as amended). Section 15 imposes an obligation on various public sector bodies (including An Bord Ple\u00e1n\u00e1la) to perform their functions consistently with the Ireland\u2019s climate plans and objectives. Specifically the applicant contended that the refusal of planning permission was in breach of the Board\u2019s duty to perform its functions, as far as practicable, in a manner consistent with Ireland\u2019s climate plans, strategies, and objectives, including Climate Action Plan 2024 (CAP24). CAP24 set a target of achieving 9 GW of onshore wind and an 80% share of renewable electricity by 2030. The applicants argued that Board\u2019s recent pattern of refusing windfarm projects could render it impossible, in practical terms to achieve this target. In balancing its obligation \u2018consider\u2019 the local development plan with its \u2018more stringent\u2019 section 15 obligations, the applicant argued that the Board should have exercised its discretion and overridden the local development plan, unless it was not practicable for it to do so.<\/p>\n
The Board argued in favour of a narrower reading of section 15 and denied that it had failed to comply with this public sector climate duty. It asserted that section 15 could not be understood as requiring it to grant permission simply because it is a renewable energy project, or require it to subjugate all other planning and environmental considerations because the development may bring about some climate benefits.<\/p>\n
In its judgment of 10 January 2025, the Irish High Court found that An Bord Plean\u00e1la had acted unlawfully and therefore quashed the decision and remitted the matter to the Board. Although the Court indicated that the case could be resolved on two highly fact-specific grounds \u2013 reliance on the incorrect provision of the Planning Act and the taking into account of an irrelevant consideration \u2013 the Court opted to engage with the broader question about the nature and scope of the Board\u2019s obligations under section 15.<\/p>\n
The Court noted that \u2018all vectors of interpretation point strongly in the same direction\u2019 towards an \u2018imperative\u2019 and \u2018far-reaching\u2019 reading of section 15 that require An Bord Plean\u00e1la and other relevant bodies (subject to the provision) to \u2018act in conformity with the climate plans and objectives\u2026 unless it is impracticable to do so\u2019. Looking closely at the language of the provision, the Court noted that section 15 imposes \u2018a very high standard only just falling short of unconditional compliance requirements\u2019. It found that \u2018practicable means capable of being put into practice, not merely doing what is reasonable\u2019 and should be seen as an objective rather than a subjective standard. This does not mean allowing an application which would be prohibited by law but it does mean exercising discretionary or evaluative powers in whatever way is likely to be consistent with the state\u2019s climate plans and objectives. The broader context and purpose of the amendments \u2013 explicitly changing section 15 from \u2018have regard-to\u2019 obligations to \u2018comply-with obligations\u2019 \u2013 make clear that the Act creates sweeping obligations across the whole public sector to facilitate radical and far-reaching action. The Court found that the interpretative obligations under EU law to interpret a national provision in a manner that supports and implements EU (climate) law rather than allows such law to be undermined would also refutes a narrow reading of section 15. Finally, the Court noted that an ECHR compliant reading of section 15 \u2013 necessitated by section 2 of Ireland\u2019s ECHR Act 2003 \u2013 also reinforces a reading of section 15 that requires compliance in practice with renewable energy infrastructure goals.<\/p>\n
The judgment was one of the first opportunities for a domestic court to consider the landmark decision of the European Court of Human Rights in Klimaseniorinnen v Switzerland where the Strasbourg Court found for the first time that Article 8 \u2018encompasses a right to effective protection from the serious adverse effects of climate change\u2019. The Irish High Court focused in the finding that article 8 of the ECHR imposes a positive obligation on the State to put in place a legislative and administrative framework with respect to climate change designed to provide effective protection of human health and life, and a further positive obligation to apply that framework effectively in practice, and in a timely manner. The Court noted that Ireland has a legislative framework for addressing climate change, but found that \u2018it is clear that it is not being complied with\u2026 [which] on the logic of Klimaseniorinnen involves a breach of art. 8 of the ECHR\u2019. The Court made clear that what it was doing was seeking to interpret section 15 in a ECHR compliant manner and that an interpretation of the provision that \u2018allows the climate goals in legislation to fall by the wayside due to a failure by the board to exercise discretionary powers to override development plans is an interpretation that fails to conform with ECHR obligations contrary to [the interpretative obligation] section 2 of the 2003 Act\u2019. The Court also identified a failure on the part of An Bord Plean\u00e1la to perform its functions in a manner compatible with the State\u2019s obligations under the ECHR, contrary section 3 of the ECHR Act 2003.<\/p>\n
The Court identified the following 3-step check-list for An Bord Plean\u00e1la, and by extension any public sector bodies to whom section 15 applies, to use when making a decision relevant to the achievement of Ireland\u2019s climate plans\/objectives:<\/p>\n
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- What decision-making options are practicably available to the board (or a relevant public sector body) that would contribute to achieving Ireland\u2019s climate plans and objectives identified in section 15?<\/li>\n
- Is this decision that furthers climate goals prohibited by some strict legal requirement? If so, an Bord Plean\u00e1la (or the relevant public sector body) cannot take this decision no matter how climate friendly it is.<\/li>\n
- If an Bord Plean\u00e1la (or the relevant public sector body) has discretion, can it exercise its discretion in a way that supports the achievement of Ireland\u2019s climate goals?<\/li>\n<\/ol>\n
The Court added a clarification that the presumption in favour of using discretionary powers to permit renewable energy infrastructure does not automatically translate into an obligation to refuse permission for developments related to high emitting activities. The Court\u2019s reasoned that the target of net-zero emission by 2050 (implicit in Ireland\u2019s national climate objective) implies a continuing necessity for some emissions at least in the short term. The Court also indicated that in such a case it would also need to consider the trade-offs and \u2018displacement effect\u2019 (i.e., a risk of the project relocating to another jurisdiction with less demanding environmental standards).<\/p>\n
The Court also found that the \u2018effectively fixed approach\u2019 adopted by the board of persistently refusing to material contravene development plans in support of renewable projects even in the face of the climate emergency breaches section 15.<\/p>\n
Media reports have indicated that there will likely be an appeal and that leave may be sought to leapfrog over the Court of Appeal and appeal directly to the Supreme Court in light of the significance of the judgment.[1]<\/a><\/sup><\/p>\n
Climate change litigation implications<\/h3>\n
The case falls under C\u00b2LI scenario 2: in this case a private actor challenged a public authority\u2019s refusal to authorise a renewable energy project. There are several important implications of this judgment for climate governance and litigation in Ireland and beyond.<\/p>\n
First, section 15 requires all <\/em>relevant public sector bodies (defined with reference to prescribed and public bodies covered by the Freedom of Information Act 2014) to perform their functions, in so far as practicable, in a manner consistent with national climate plans, strategies, and objectives, not just An Bord Plean\u00e1la. This is significant as it will likely require all such bodies to review if how they are performing their functions is in fact consistent, in so far as practicable, with Ireland\u2019s statutory climate plans, strategies and objectives. While it does not require them to do something that is precluded by another mandatory legal requirements, it requires them to exercise their discretionary powers in a climate-friendly way. Where such relevant public bodies fail to do so, they will face the threat of a judicial review. The Coolglass<\/em> judgment is also likely to be of relevance to all Ministers of the newly elected Irish Government by virtue of similarly worded provision in section 6B(13) and 6C(9) of the revised Climate Act requiring Ministers \u2018in so far as practicable\u2019 to \u2018perform their functions in a manner consistent with\u2019 carbon budgets and their relevant sectoral emissions ceiling.<\/p>\n
Second, the High Court\u2019s interpretation of public sector climate duties could be influential in other jurisdictions where their national framework climate laws contain similar public sector duties. For example, Scotland\u2019s Climate Act also imposes an obligation on public sector bodies to exercise its function in a way best calculated to contribute to the delivery of Scotland\u2019s emission reduction targets.<\/p>\n
Third, it can be anticipated that the High Court\u2019s clarification that high emitting projects may not be not captured to the same extent by this obligation due to the residual emissions implicit in net-zero and the displacement effect will likely be revisited in a future case. The Court itself made clear that it would be appropriate to leave detailed consideration of this point off until a case where this actually arises. There does not appear to be an obvious basis in the Climate Act itself for differentiating between exercising discretion in favour of renewables but not exercising it against high emitting activities when it comes to section 15. Nor does it make sense from the perspective of sticking to Ireland\u2019s carbon budgets and achieving its 2050 national climate objective. As one of Ireland\u2019s leading climate scientists Hannah Daly recently wrote:[2]<\/a><\/sup><\/p>\n
\u201c[R]enewable energy supply is only one half of the picture. Realising their transformative potential is only possible if the clean electricity that comes from wind and solar farms is used to replace fossil fuels. This may sound so obvious that it shouldn\u2019t need to be stated, but a critical misunderstanding persists: some interpret climate commitments under the climate law as simply building more renewables.<\/p>\n
But this is not the case. Renewables are a tool, not the goal in themselves. Ireland\u2019s legally binding commitments are expressed as carbon budgets \u2013 limits on greenhouse gas pollution in five-year periods. Emissions reductions only happen when renewables actively displace fossil fuels\u201d.<\/p><\/blockquote>\n
It would seem to follow, that at least from a scientific perspective, exercising discretion to prevent further emissions intensive activity under section 15 is just as important as exercising discretion to support renewables projects. It is also interesting to note that the Dutch Court of Appeal rejected a \u2018carbon leakage\u2019 or \u2018displacement effect\u2019 argument in Urgenda v Netherlands<\/em> on the basis that the State had not properly substantiated the existence of such a risk. This type of effectiveness\/substitution argument is a live question in the pending Milieudefensie v Shell <\/em>Supreme Court appeal. Given the dialogue between Europe\u2019s highest courts in the first wave of framework climate cases and anticipated appeal in Coolglass<\/em>, we can anticipate similar levels of engagement between courts in this wave of pending cases. Indeed, it would seem like only a matter of time before the Irish Supreme Court will be called upon to rule definitely on the nature and scope of section 15, including on interpreting it as requiring discretionary power to be exercised in a pro-renewables but not necessarily in an anti-high emitting activities way.<\/p>\n
[1]<\/a> Tim Healy, \u2018An Bord Plean\u00e1la takes \u2018serious issue\u2019 with judge\u2019s ruling over windfarm refusal\u2019 (The Irish Independent<\/em>, 29 January 2025). huling-over-windfarm-refusal\/a1447055863.html<\/a><\/p>\n