In 2021 when Ireland’s amended climate law was going through the legislative process, critics noted it contained no legal mechanism to force compliance by government. But these concerns were dismissed in the hope the obligations on public bodies and government would steer the economy and society on to a net-zero emissions pathway.
If the law is working, it should align our investment and planning decisions with commitments under the Paris Agreement. This necessarily requires a long-term view, since emissions released today will be hanging around for a very long time. On human timescales and with currently available technology, carbon dioxide that we release into the atmosphere will stay there causing climate change to worsen for thousands of years. The more we put up there, the worse the problem gets.
The uncompromising physics of climate change simply can’t be managed with actions deferred to a future date, or by relying on unproven or immature technologies, or by promising to do good deeds elsewhere.
We’re all a little bit responsible – this is true – but big emitters have a particular duty to act, as do countries. Climate cases taken by citizens around the world have sought to clarify and enforce this duty, including the Irish “climate case” taken by Friends of the Irish Environment which was ultimately successful in the Supreme Court in 2020. In 2024 in the KlimaSeniorinnen case, the European Court of Human Rights established a direct legal link between a state’s failure to meet carbon reduction targets and the violation of individual human rights. The Senior Women for Climate Protection had formed in 2016 to challenge the Swiss government’s failure to act effectively on climate change.
With so much at stake, not least mounting concerns over food and energy security, you’d think our Government would be planning for a future without fossil fuels. However, legally binding limits are not being translated into practical policies and statutory decisions with the urgency that climate action demands. It is deeply concerning that since the 2021 Climate Law was adopted, numerous planning approvals will substantially increase Ireland’s greenhouse gas (GHG) emissions or lock-in fossil fuel demand even further. For example, approximately 40 additional data centres have received approval since the amended climate law was enacted.
In March this year, the High Court refused an application by environmentalists to quash a decision of An Coimisiún Pleanála that would allow the construction of a €1.6 billion, 200MW data centre campus in Ennis, Co Clare. According to Colin Doyle, a physicist who took the legal challenge along with Friends of the Irish Environment, the proposed data centre will emit 700,000 tonnes of greenhouse gases – more carbon than 50,000 people would produce – every year. This one data centre will consume 21 per cent of the carbon budget for the electricity sector by 2030.
Yet the numbers in the case – the additional emissions the data centre’s energy demand would generate – were not deemed to be a good enough legal reason to quash the decision. The High Court was satisfied by the argument made by the developer and An Coimisiún Pleanála that, when considered in global or European terms, “the GHG emissions associated with the project are small” and that a commitment to procure renewable electricity through a Corporate Power Purchase Agreement would count as adequate mitigation in “net” terms.
In another recent High Court decision, Judge Richard Humphreys refused an application to quash permission for a 600MW power station on the Shannon estuary, accepting the developer’s argument that the facility would replace existing, less efficient, and more carbon-intensive power generation. However, this ignores the cumulative impact of carbon dioxide and its residency in the atmosphere. Any additional emissions will cause additional climate harm: that’s the basic physical and moral challenge of climate change.
The legal firm William Fry, which acted for the developer in the Ennis case, concluded that the judgment confirms that section 15 of the Climate Act 2021 “does not preclude the commission from granting planning permission for a development that generates substantial GHG emissions”. That’s good news for data centres and power plants, but bad news for the climate.
The fact that the atmosphere cannot distinguish between legal and illegal emissions is apparently beside the point: the law is only interested in legal arguments, not mathematical ones.
In the Ennis case, Humphreys acknowledged that carbon budgets were fundamentally mathematical, but he accepted the scientifically questionable claim by the developer that procuring renewable energy in the future would compensate for the energy demand of the data centre. The court has essentially accepted the moral logic of “offsetting”, just as the medieval church took payments for the remission of sins known as “indulgences” (a practice which ultimately triggered the Reformation). While the church could promise a reduction in temporal punishment in purgatory, the emissions from these facilities will stay in the atmosphere forever doing irreparable harm.
The legal situation following both the Ennis and Shannon LNG cases is one where it seems the courts will not act to prevent committed emissions from a combined demand of 600MW of additional and avoidable power-related emissions. This is deeply regrettable.