One need not be a Cassandra to note that the forests of the world are rapidly vanishing, as are wetlands to development, mangroves to fish farms, and grasslands to desert; small continents of plastics now rotate in all five oceans, growing larger each year, fragments leaching into the stomachs of pelagic turtles, fish, and birds; heavy toxins now contaminate the Arctic and do not degrade; glaciers from the Andes to the Himalayas are melting, as are the ice sheets of the North and South Poles; Australia’s Great Barrier Reef is bleached white and disintegrating, and with it some of the most astonishing life forms on earth; fresh water amphibians are plummeting, as are avian migrations, pollinators, and butterflies; two thirds of the breeding birds of Britain, a country noted for its attention to them, are in decline, some species already extinct; the tiger, the orangutan, and mega-vertebrates on every continent are living on borrowed time and may find their final refuge in zoos; forms of life that developed over eons, entire complexes of life, are winking out like birthday candles, up to three species an hour, an estimated 15% to 40% of all species by 2050, not to malice, not necessarily by design, but all by human hands.[i]
Oliver A. Houck
Last month Friends of the Irish Environment (FIE) argued before the High Court of Ireland that the State’s failure to abide by treaty obligations to curb rising anthropogenic greenhouse emissions breached the constitutional rights of Irish citizens to life, bodily integrity and a healthy environment. It follows a Dutch appellate court ruling, upholding the decision of a lower court ordering the Dutch government to accelerate emissions cuts.[ii]
The willingness of FIE to devote themselves to this case is laudable, but prospective loss or injury to Irish citizens from spiralling emissions – emanating in particular from the agriculture and transport sectors (33% and 20% respectively of the national total[iii]) – appears too indeterminate to ground an action under Irish law.
Man-made climate change is as good as a fact, but the consequences are uncertain in any specific location. Judges are, understandably, reluctant to make orders based on unforeseeable future events.
The island of Ireland could actually become more hospitable to human habitation under certain climate change scenarios, with drier and hotter summers predicted, albeit with an increased likelihood of storm events; increased atmospheric CO2-levels could improve growing conditions for cereal crops such as wheat.[iv] Our rising emissions may have greater impact elsewhere, but the argument is made on behalf of Irish people living in the State, not the huddled masses of climate refugees we should expect.
Moreover, Irish Courts have previously expressed a reluctance to interfere in the operation of the Executive or Legislative branches of government, considering this a breach of the principle of the Separation of Powers.[v] This is based on the assumption that judges have neither the expertise nor the democratic legitimacy to make binding orders regarding how other arms of the state should make and implement law. However frustrating this can be, it is not anti-democratic, and respect for the Separation of Powers is only abandoned in extremis.
I anticipate a virtue-signalling judgment to the effect that the government should do something to comply with the state’s international treaty obligations to reduce emissions, but will fall short of ordering mandatory curbs, or imposing deadlines to bring changes into effect. In the event of the High Court making a prescriptive judgment the government will, inevitably, appeal this to the Supreme Court, which will be reluctant to set itself on a collision course with the elected government.
So even a favourable judgment for FIE is likely to be the equivalent of a pat on the head with a rolled-up newspaper for the government, following which, the Taoiseach will ‘carefully study the important judgment’ – before claiming all ministerial cars will henceforth be run on slurry.
Elsewhere, an Irish Times editorial will forcefully assert – thundering at times – it is imperative for the state to act NOW, while kindly providing delicious recipes for beef and lamb, along with a full-colour motoring supplement and readers’ offers for cheap flights, in the same edition. The steady stream of Brit-bashing Brexit coverage will resume the following day.
Large corporations have already positioned themselves to profit from the commercial windfalls presented by climate change. Unfortunately, the prospect of multinational companies showing ‘corporate responsibility’ remains oxymoronic during our current phase of Globalisation.
Mitigation strategies may have adverse side effects. Already we have seen the expansion of sitka spruce plantations across Ireland, which acidify soils and strangle biodiversity,[vi] in pursuit of an improved carbon balance sheet to allow increases in dairy production.
There are also question marks around the impacts of wind farms, especially those sited on blanket peat[vii], with hundreds of tonnes of concrete required in construction, and disruption inevitable to wildlife, especially the flight paths of birds. If ‘green’ energy initiatives are pursued merely for a new generation of electrified autonomous vehicles, constructed from steel, then they do not justify the inevitable environmental impacts.
Environmental opportunism includes the distortion of supermarket shelves being stacked with organic products wrapped in plastic and flown half-way around the world; continued reliance on motor cars for single occupants in urban areas, when the manufacture of transport alternatives are generally far less carbon-intensive, and may bring health benefits in the case of bicycles. It is most obvious in the greenwashing propaganda of the agricultural sector,[viii] which until recently claimed Irish livestock’s lower emissions profile justifies further expansion – as beef and dairy would only be produced elsewhere with higher emissions.
Thankfully, the ‘our coal smokes less than their coal’ argument can now be dismissed as new data from the United Nations Food and Agriculture Organisation (FAO), analysed by An Taisce, reveals Ireland is, in actual fact, the most carbon-intensive beef producer in Europe, and ranks as Europe’s third highest on emissions from its dairy sector.[ix]
Importantly, narrowing the environmental agenda to climate change alone obscures the equally pressing consideration of the Sixth Extinction, the extreme nature of which has been established empirically in Ireland.
Is it possible that alternative rights, already implied by the Irish Constitution, to protect Irish nature could be argued? Could spiralling emissions then be reduced alongside meaningful biodiversity-gains?
This argument will build on a foundation of Natural Law, a school of thought embedded in the language of the Irish Constitution. The assumptions of Natural Law can be traced to Classical antiquity: ‘the unwritten and unfailing statutes of heaven’ as Sophocle’s Antigone puts it; beyond the temporary, and periodically unjust, laws of any state.
During the Middle Ages, especially through the writings of Thomas Aquinas, this ‘pagan’ Classical school of thought was adopted by the Roman Catholic Church. In more recent times this became associated with a toxic and myopic focus on human sexuality, especially women’s bodies. It still transmits, however, compelling arguments for universal justice – a Natural Law – beyond, and above, positive law, informed by dialectic and logic, not simply Christian Revelation as is widely assumed.
The jurist and former President of the High Court, Declan Costello previously wrote: ‘It has more than once been judicially observed that it can clearly be inferred that the [Irish] Constitution rejects legal positivism as a basis for the protection of fundamental rights and suggests instead a theory of natural law from which those rights can be derived.’[x]
From the 1960s judicial Natural Law interpretations ascribed a host of ‘Unenumerated Rights’[xi] to all Irish citizens, including to bodily integrity, work, marry, privacy in marital relations, and free movement within the State. These rights are not explicitly identified in the Irish Constitution but are intrinsic to our human condition, and flow in particular from a generalised protection of personal rights under Article 40.3. With a Sixth Extinction upon us, applying Natural Law, the Unenumerated Rights of other species to survive, along with ourselves, urgently needs to be ‘discovered’ in the Irish Constitution.
For this to occur, however, the courts must overcome a contemporary slide towards moral relativism, and an aversion to decisive ethical responses. No doubt truth is a shifting target, and any single account is insufficient, but we need to restore faith in a capacity to settle ethical arguments at a given point in time. As Aristotle – whose influence on Aquinas’s Natural Law theory was immense – pointed out:
The theorizing of truth is in one sense difficult, in another easy. This is shown by the fact that whereas no one person can obtain an adequate grasp of it, we cannot all fail in the attempt; each thinker makes some statement about the natural world and as an individual contributes little or nothing to the inquiry; but a combination of all conjectures results in something considerable.[xii]
Post-modernists will argue otherwise, but their insouciant outlook of ambient confusion is an admission of failure. Holes can be picked in any argument but the argument as a whole can still stand. One should hardly propose anything without the ambition of arriving at “something considerable” – an elusive truth. Our capacity to determine justice requires that we overcome a ponderous Post-Truth incoherence.
The foundations of the logic we still depend on in rational discussion can be traced to the first systematic philosophers, including Aristotle. A contemporary interpreter, the philosopher Alasdair MacIntyre sees in the dialectic process, ‘the movement from thesis to thesis as a movement towards a kind of logos which will disclose how things are, not relative to some point of view, but as such’. Contemporary environmental challenges require new logical departures, disclosing “how things are”, “as such.”
This should lead to an extension of Natural Law theory to encompass Wild Law or Earth Jurisprudence. Then our laws can confront the reality of an over-sized human population radically out of balance with its environment, with Ireland presenting a difficult case.
Rules and Regulations
In rural Ireland in particular, environmental law is often seen as a body of rules foisted on the populace, often in exchange for an EU subsidy, rather than an element of practices adopted for the commonweal. Accordingly, Coyle and Morrow view many such regulations ‘as a technical instrument of social goals and policies, rather than a body of principles aiming at the articulation of a concept of justice and the good life.’[xiii]
This can partly be attributed to the prior failure of Natural Law theorists to identify inherent rights in other species. In contrast, the sanctity of human property rights have been vigorously upheld. Early modern theorists, drawing on Christian Revelation rather than reason, assumed rights of virtually unrestrained possession, along with dominion over all wild creatures. The seventeenth century Dutch jurist Hugo Grotius described this as ‘a grant which was renewed on the restoration of the world after the deluge’. To deprive any owner of this would, he said, be ‘an act of injustice.’[xiv]
Importantly, however, up to that point there had been little necessity to assert the rights of wild animals, even in Europe, as humans were, to a substantial degree, living in harmony with their environments, at least to the extent of allowing other species to survive. According to Tim Flannery: ‘after the last muskox died in what is now Sweden about 9,000 years ago, the European mainland did not lose another species until the seventeenth century.’[xv]
Since then the picture has changed dramatically across the world with sixty percent of wild animals wiped out since 1970 alone.[xvi] Coyle and Morrow affirm: ‘The very agricultural practices which were held out as a moral necessity by the natural rights theorists can, it seems, create untold environmental damage.’ Given the scale of ecological damage that has ensued – associated with European colonisation of the globe – they argue that ‘the ethical assumptions of the seventeenth century conception of property cannot survive in such circumstances.’[xvii]
The condition of a planet containing over seven billion human beings, living longer than ever, enjoins alternative approaches to land ownership, as Coyle and Morrow put it: ‘If human agriculture was ever in harmony with nature it certainly is not any longer and the sanctity of individual ownership must be restrained. Duties must join rights.’[xviii]
Natural Law is an ongoing, truth-seeking dialectical process with the aim of disclosing, “how things are, not relative to some point of view, but as such.” It is the methodology to determine laws which is divine, not the laws themselves. If Natural Law is to have any relevance it must adapt to current conditions.
A re-imagining of Natural Law is evident in the field of Earth Jurisprudence, or Wild Law. According to one of its inspirations, Thomas Berry: ‘The Universe is not a collection of objects but a communion of subjects and every member of the Earth Community has three inherent rights: the right to be, to habitat, and to fulfil its role in the ever-renewing processes of the Earth community.’[xix] These rights ought, logically, to be incorporated into Irish law.
What is Wild Law?
How can these aspirations be given tangible legal form? In a seminal 1972 article ‘Should Trees Have Standing?’[xx] Christopher D. Stone explores how Wild Law might apply. He argues that natural objects could have legal standing by analogy with companies, states, infants, incompetents, municipalities or even universities. Thus a court appoints a trustee when a corporation acts incompetently or fraudulently. He wrote:
On a parity of reasoning, we should have a system in which, when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship … The guardian would urge before the court injuries not presently cognizable – the death of eagles and inedible crabs, the suffering of sea lions, the loss from the face of the earth of species of commercially valueless birds, the disappearance of wilderness areas.
He also draws an analogy with the law of patents and copyright:
I am proposing that we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions and privacy: make the violation of rights in them to be a cost by declaring the piracy of them to be the invasion of a property interest.
He further suggests that this could lead to modifications in our representative democracies:
I am suggesting that there is nothing unthinkable about, and there might on balance even be a prevailing case to be made for an electoral appointment that made some systematic effort to allow for the representative “rights” of non-human life.
Considering most of our laws are framed in national and regional assemblies this argument has merit, albeit mechanisms would require careful consideration.
Stone envisages changes in our legal culture informing wider social norm, as, ‘a society that spoke of the “legal rights of the environment” would be inclined to legislate more environment-protecting rules by formal enactment.’
Intriguingly, he suggests, ‘What is needed is a myth that can fit our growing body of knowledge of geophysics, biology and the cosmos’, proposing ‘that we may come to regard the Earth, as some have suggested, as one organism of which mankind is a functional part’. Similarly, Coyle and Morrow maintain: ‘The problem is that meaningful change responding to environmental and social imperatives will require a true paradigm shift in how we regard our relationship with the world of which we form a part.’
Any transformation in our relationship with the natural world requires the participation of poets, artists and philosophers. One philosopher, Timothy Morton, makes the intriguing claim that putting ‘something called Nature on a pedestal and admiring it from afar does for the environment what patriarchy did for the figure of women.’[xxi] Perhaps W.B. Yeats’s apparent identification of Irish nature with a ‘glimmering girl’, ‘with apple blossoms in her hair’ distracted from an ongoing exploitative relationship, linked to our colonial inheritance.
Rather than celebrate a patriarch, ‘Digging’ for turf, as in Seamus Heaney’s poem by that name, new accounts might draw inspiration from the early twentieth-century Irish poet, Eva Gore-Booth, who poignantly observes in ‘The Landlord’ (1906): ‘Near and dear is the curlew’s cry, / You are merely a stranger passing by.’[xxii] At least one contemporary Irish musician, Rhob Cunningham, has also been moved to song by the curlew’s plight.
A New Species of Rights
Hearteningly, all around the world, from Ecuador to New Zealand, conceptions of Earth Jurisprudence or Wild Law are actually taking route in domestic legal codes. For example, Germany’s constitution makes protection of ‘the foundations of nature and animals’ a national imperative, applicable to government agencies, the legislature and the judiciary. The provision has been cited in over seven hundred cases (including one protecting a rare plant from a dredging project on the River Elbe). Moreover, as Oliver A. Houck puts it, this ‘does not include the more numerous acts of compliance that drew no litigation at all.’[xxiii]
Meanwhile in Ireland species loss continues apace. Liam Lysaght recently records: ‘of the 3,000 species that have undergone a red list conservation assessment, one in every four species is threatened with extinction here.’[xxiv] Of particular concern is the continued ruination of peat bogs through fossil fuel extraction and grazing. Here considerations of nature conservation align precisely with keeping fossil fuels, and embedded methane, in the ground.
Existing environmental legislation, including the EU’s Habitats Directive, is failing to protect endangered species adequately: such as the iconic curlew which is now on the red list. This can partly be attributed to a lack of enforcement, but also, as we observed, such laws are currently considered an encumbrance on property owners, and not part of a scheme of protection for a common inheritance. So how do we ensure that what remains of Irish nature is spared the ravages of human exploitation?
A constitutional amendment enshrining nature rights, similar to that operating in Germany, should be the long-term goal. But this will take time to bring to fruition, especially as mainstream media only falteringly highlights ongoing damage, and none of the main political party prioritise protection of biodiversity.
A Modest Proposal
I propose an alternative test case asserting the rights of a particular species using Thomas Berry’s tripartite test; proposing, for example, the curlew has a right to be, to habitat and to reproduce, alongside humans, based on a Natural Law interpretation of the Irish Constitution. I would argue that all native species hold a previously Enumerated Right to exist on that basis within this jurisdiction. Given the scale of Sixth Extinction we are witnessing in this country it seems crucial that such rights are ‘discovered’ before further, irreversible, losses occur.
The Court could go so far as compulsorily purchasing lands as habitat for species under threat, or prohibiting certain classes of herbicides or insecticides. It will require expert witness from recognised authorities to distinguish the respective rights of native, invasive and naturalized species within any ecology. Property owners should be compensated for any loss, but under the Irish Constitution the common good trumps all rights, including to property, and this course of action is demanded to prevent further irreversible extinctions.
The allocation of reserves and prohibition on the use of toxic chemicals would be a proportionate appropriation by the Judiciary of the powers of the Legislature and Executive branches in circumstances of a serious dereliction of duty. The Sixth Extinction is an emergency happening before our eyes in Ireland and with recognisable victims, unlike the unpredictable devastation that climate change will wreak.
Re-wilding may begin with marginal lands, where farming is already uneconomic. Cattle and sheep farmers can find new roles as landscape guardians, while allocating portions of former pastures to cultivate crops for what The Lancet referred to as a necessary ‘Great Food Transformation.’[xxv]
Eventually, beyond legal prescriptions, habitat reclamation can endear the population to the landscape, and reform destructive behaviours. In developing our appreciation of the soft sounds and sweet aromas in nature we might consider reducing our dependence on noisy, polluting motor cars.
Greater biodiversity also offers scope for judicious harvesting of foodstuffs, building materials and fuel. The tragedy of the loss of so many other species is almost impossible to convey.
Many of us wish to see the law go further: putting to an end the perverse subsidy regime upholding the agricultural industry; dignifying all animals with a decent life, in the wild. For the moment, however, the best legal argument is to assert the rights of all resident Irish species, living in ecological balance, simply to exist. Reduced emissions will be a happy by-product of biodiversity-gain.
In beginning to liberate the natural world from human dominion let us recall the small victories won in the battle against human slavery along the road to great milestones. Wild Law can emerge incrementally in Ireland through our existing constitutional framework.
[i] Oliver A. Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Envtl. L.J. 1, 2017.
[ii] Ddfd ‘Dutch appeals court upholds landmark climate change ruling’, October 9th, 2018, https://www.theguardian.com/environment/2018/oct/09/dutch-appeals-court-upholds-landmark-climate-change-ruling accessed 26/2/19.
[iii] EPA, ‘The Simple Guide to Ireland’s Greenhouse Gas Emissions’, 2017, http://www.epa.ie/pubs/reports/air/airemissions/ghgemissions2017/epa_infographic_guide_ghg_12.18_v2.pdf, accessed 19/2/19.
[iv] Stephen Flood, ‘Projected Economic Impacts of Climate Change on Irish Agriculture’, October, 2013, Stop Climate Chaos, https://www.stopclimatechaos.ie/download/pdf/projected_economic_impacts_of_climate_change_on_irish_agriculture_oct_2013.pdf, accessed 19/2/19.
[v] See the (obiter) judgment of Hardiman J. in Sinnott v. Minister for Education  IESC 63;  2 IR 505 (12th July, 2001), https://www.escr-net.org/caselaw/2013/sinnott-v-minister-education-2001-iesc-63-2001-2-ir-505-12th-july-2001, accessed 28/2.19.
[vi] Mary Colwell, ‘A forestry boom is turning Ireland into an ecological dead zone’, October 10th, 2018, https://www.theguardian.com/commentisfree/2018/oct/10/trees-ireland-biodiversity-sitka-birds-extinction, accessed 19/2/19.
[vii] Richard Lindsay and Olivia Bragg ‘WIND FARMS AND BLANKET PEAT. The Bog Slide of 16th October 2003 at Derrybrien, Co. Galway, Ireland’, November, 2005, School of Health & Biosciences University of East London. https://web.archive.org/web/20131218090914/http://www.uel.ac.uk/erg/documents/Derrybrien.pdf, accessed 28/2/19.
[viii] Kevin O’Sullivan, ‘Environmental group calls Origin Green a ‘sham’’, October 4th, 2017, Irish Times, https://www.irishtimes.com/news/environment/environmental-group-calls-origin-green-a-sham-1.3244507, accessed 28/2/19.
[ix] Press Release ‘Bombshell for Irish Peace’, 12th of February, 2019, An Taisce, http://www.antaisce.org/articles/bombshell-for-irish-beef?fbclid=IwAR0uPTUu1TEoZToCGugOCIoS-nmsigAQNU0g_U3XrIZHNU3PKbF2_zO0YIU, accessed 19/2/19.
[x] Declan Costello, ‘Natural Law, the Constitution, and the Courts’, from Lynch and Meenan (eds.) Essays in Memory of Alexis FitzGerald, Dublin, The Incorporated Law Society of Ireland, 1987, p.109
[xi] The original ‘Unenumerated Right’ to ‘Bodily Integrity’ was approved by the Supreme Court in Ryan v. A.G.  IESC 1;  IR 294 (3rd July, 1965)
[xii] Aristotle, Metaphysics, Book 2, Part 1.
[xiii] Coyle and Morrow, The Philosophical Foundations of Environmental Law. Property, Rights and Nature, Oxford, Hart Publishing, 2004, p.211
[xiv] Coyle and Morrow, p.15
[xv] Flannery, 2018, p.251
[xvi] Damian Carrington, ‘Humanity has wiped out 60% of animal populations since 1970, report finds’, 30th of October, 2018, https://www.theguardian.com/environment/2018/oct/30/humanity-wiped-out-animals-since-1970-major-report-finds, accessed 20/2/19.
[xvii] Coyle and Morrow, p.206
[xviii] Coyle and Morrow, p.209
[xix] Quoted in Mike Bell, ‘Thomas Berry and an Earth Jurisprudence’, http://rainforestinfo.org.au/deep-eco/earth%20jurisprudence/Earth%20Justice.htm, accessed 20/2/19.
[xx] Christopher D. Stone, ‘Should Trees Have Standing–Toward Legal Rights for Natural Objects’, Southern California Law Review. 45 (1972): 450–87.
[xxi] Timothy Morton, Ecology Without Nature: Rethinking Environmental Aesthetics, Cambridge, Harvard University Press, 2007, p.5.
[xxii] [xxii] Eva Gore-Booth ‘The Land to a Landlord’, from Sonja Tierney (ed), Eva Gore-Booth: Collected Poems, Dublin, Arlen House, 2018, p.166
[xxiii] Houck, 2017
[xxiv] Liam Lysaght, ‘The six steps needed to save Irish Biodiversity’, February 19th, 2019, Irish Times
[xxv] Prof Walter Willett, MD et al, Food in the Anthropocene: the EAT–Lancet Commission on healthy diets from sustainable food systems, January, 2019. The Lancet. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31788-4/fulltext?utm_campaign=tleat19&utm_source=HPfeature’, accessed 26/1/19.