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Climate Case Ireland’s amendments for Ireland’s Climate Bill.

Posted on: 19-05-2021

Climate Case Ireland’s proposed amendments to Ireland’s Climate Action and Low Carbon Development (Amendment) Bill 2021

Overall level of ambition

  1. Amend s.6A(5) of the Act (as inserted by s.9 of the Bill) to ensure the interim 2030 target is legally certain and scientifically consistent with the Programme for Government commitment. Dr. Andrew Jackson, Prof. Barry McMullin, and Prof. John Sweeney propose two alternative potential wordings, one of which is:

“The first two carbon budgets proposed by the Advisory Council shall provide for a total amount of greenhouse gas emissions over the course of the first two budget periods ending on 31 December 2030 that is no greater than the total amount of greenhouse emissions that would result from annual greenhouse emissions in 2021 being 7% below the baseline level, and annual greenhouse gas emissions then reducing by a further 7% in each successive year of the period 2022-2030, such that annual emissions in 2030 would correspond to 51.6% of the baseline level. For the purpose of this subsection, “the baseline level” means the level of greenhouse gas emissions reported for the year ending on 31 December 2018, as set out in the national greenhouse gas emissions inventory prepared by the Agency.”

  1. Insert a provision empowering the Minister to bring forward the target year for complete decarbonisation and to raise the interim 2030 target by way of secondary legislation, in a manner consistent with the delegation doctrine. This could for example be worded as follows, adapted from Scotland’s Climate Change Act 2009 (the text below is premised on our amendment at point 1 above being adopted; the text could of course be adapted if the current version of s.6A(5) is retained by the Government or if the text of s.6A(5) is otherwise amended):

“X. Modification of interim target and year of complete decarbonization

  • Having received a report from the Advisory Council under section 12(1), the Minister may by regulations:
  • substitute the final percentage figure specified in section 6A(5) with a figure within the range 52 to 100 per cent (and shall in addition substitute a higher year-on-year percentage reduction in section 6A(5) accordingly), provided always that the Minister may only substitute a higher figure than the one for the time being mentioned; and/or
  • substitute the year specified in section 3(1) with a year no earlier than 2030, provided always that the Minister may only substitute an earlier year than the one for the time being mentioned.
  • In preparing regulations to be made under subsection (1), the Minister must have regard to—
    • the target-setting criteria, and
    • the most up-to-date report received from the Advisory Council under section 12(1).
  • As soon as reasonably practicable after making regulations under subsection (1), the Minister must publish a statement setting out in respect of each modification of a percentage figure or year by the regulations—
    • the Minister’s reasons for modifying the percentage figure and/or year,
    • the extent to which the modification takes account of the target-setting criteria, and
    • whether the modification is consistent with the most up-to-date advice received from the Advisory Council, and

shall, as soon as may be, cause this statement to be laid before each House of the Oireachtas.

  • Where, having received a report from the Advisory Council under section 12(1) recommending that the percentage figures specified in section 6A(5) and/or the year specified in section 3(1) be substituted, the Minister decides not to make regulations under subsection (1), the Minister shall, as soon as practicable, publish a statement setting out his or her reasons and shall, as soon as may be, cause this statement to be laid before each House of the Oireachtas.
  • Where the Minister substitutes the percentage figures specified in section 6A(5) under subsection (1)(a), the Advisory Council shall as soon as practicable propose a new carbon budget or budgets (as applicable) for the first two budget periods ending on 31 December 2030.”
  • Related amendment: insert a new s.14A(2) of the Act (Climate reporting and the role of JOCCA), via s.14 of the Bill, as follows:

“(2) The Minister shall, as soon as practicable after the publication of a statement under section X(3) or (4), at the written request of a joint committee, attend before it to give an account of his or her reasons for modifying or not modifying the percentage figure for the time being specified in section 6A(5) and/or the year specified in section 3(1).”

  1. Insert a new s.12(1) into the Act (via s.12 of the Bill) to task the Climate Change Advisory Council with reporting monthly on whether Ireland’s interim 2030 target and target year for complete decarbonisation ought to be raised or brought forward, respectively, to ensure Ireland’s efforts reflect “progression” and “highest possible ambition” in accordance with the Paris Agreement. This could be worded as follows:

“12. (1) With reference to the target-setting criteria, the Advisory Council shall conduct a review each month of—

  • the final percentage figure and year-on-year percentage reduction specified in section 6A(5), and
  • the year specified in section 3(1), and

shall prepare and submit to the Minister a report containing its findings and recommendations consequent upon that monthly review, no later than the final working day of each given month.

(2) Without prejudice to the generality of subsection (1), the report shall state whether the Advisory Council considers that the final percentage figure and year-on-year percentage reduction for the time being specified in section 6A(5) and the year for the time being specified in section 3(1) represent the State’s highest possible ambition and progression, and shall give the Advisory Council’s reasons in this regard.

(3) The Advisory Council shall publish the reports prepared under this section on its website no later than the fifth working day of each month.

(4) The obligation in subsection (1)(a) shall apply until the end of the year 2030.”

  1. Insert the following provision as new section 12(2)(g) of the Act (via s.12 of the Bill), in relation to the Advisory’s Council’s annual report:

“(g) a statement recording whether the Advisory Council considers that the current version of each of the following:

(i) the climate action plan,

(ii) the national long term climate action strategy,

(iii) the national adaptation framework,

(iv) a sectoral adaptation plan,

(v) the carbon budget programme, and

(vi) any sectoral emissions ceiling,

represents the State’s highest possible ambition, and such recommendations or advice as the Advisory Council considers necessary or appropriate regarding the measures and actions that could be taken to reflect such ambition, representing progression beyond the State’s then current measures and actions.”

  1. Insert the following provision, which is adapted from the Scottish Act:

“X. The target-setting criteria

(1) In this Act, the “target-setting criteria” are—

(a) the objective of not exceeding the fair and safe Irish emissions budget,

(b) European and international law and policy relating to climate change (including the United Nations Framework Convention on Climate Change and protocols to and agreements under that Convention, including the Agreement done at Paris on 12 December 2015),

(c) scientific knowledge about climate change,

(d) technology relevant to climate change,

(e) economic circumstances, in particular the likely impact of the target on—

(i) the Irish economy,

(ii) the competitiveness of particular sectors of the Irish economy,

(iii) small and medium-sized enterprises,

(iv) jobs and employment opportunities,

(f) fiscal circumstances, in particular the likely impact of the target on taxation, public spending and public borrowing,

(g) social circumstances, in particular the likely impact of the target on those living in poorer or deprived communities,

(h) the likely impact of the target on public health,

(i) the likely impact of the target on those living in remote rural communities and island communities,

(j) energy policy, in particular the likely impact of the target on energy supplies, the renewable energy sector and the carbon and energy intensity of the Irish economy,

(k) environmental considerations and, in particular, the likely impact of the target on biodiversity,

(l) the likely impact of the target on the achievement of sustainable development, including the achievement of the United Nations sustainable development goals,

(m) current international carbon reporting practice,

(n) the requirement for the State’s climate targets to represent its highest possible ambition and progression.

(2) In this Act, the “fair and safe Irish emissions budget” is the aggregate amount of net Irish emissions of greenhouse gases for the period 2021 to 2050 as recommended by the Advisory Council as being consistent with the State, in line with the principles set out in Article 3 of the United Nations Framework Convention on Climate Change, contributing appropriately to the holding of the increase in global average temperature to 1.5°C above pre-industrial levels.”

  1. Insert a new section 1A into the Climate Act as follows:

“1A. The objective of this Act is to ensure that the State does its fair share, on the basis of equity and the principle of common but differentiated responsibilities and respective capabilities, to limit the global average temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.”

Related amendments:

  • Insert as a new s.3(3)(a)(iii) of the Act (via s.5 of the Bill):

“the objective of this Act, as set out in section 1A”

  • Replace new s.4(2)(a) of the Act (via s.6 of the Bill) with:

“ensure that the plan is consistent with the carbon budget programme and the objective of this Act, as set out in section 1A.”

  • Replace new s.4(6)(a) of the Act (via s.6 of the Bill) with:

“ensure that the strategy is consistent with the carbon budget programme and the objective of this Act, as set out in section 1A.”

  • Replace new s.4(11) of the Act (via s.6 of the Bill) with:

“The Government and a Minister of the Government, shall perform its or his or her functions in a manner consistent with the most recent approved climate action plan, the most recent approved national long term climate action strategy, and the objective of this Act, as set out in section 1A.”

  • Insert as a new s.6A(9)(a)(ii) of the Act (via s.9 of the Bill):

“that is consistent with the objective of this Act, as set out in section 1A, and”

  • Replace new s.6B(13) of the Act (via s.9 of the Bill) with:

“The Government and a Minister of the Government shall perform its or his or her functions in a manner consistent with a carbon budget that has effect under subsection (7) or (11), as the case may be, and with the objective of this Act, as set out in section 1A.”

  • Replace new s.14B(3) of the Act (via s.15 of the Bill) with:

“A local authority climate action plan shall be consistent with the most recent approved climate action plan, national adaptation framework, and the objective of this Act, as set out in section 1A, and in making a local authority climate action plan, a local authority shall have regard to— (a) the most recent approved national long term climate action strategy, (b) the most recent approved sectoral adaptation plans, and (c) any policies of the Minister or the Government on climate change.”

  • Insert as a new s.15(1)(f) of the Act (via s.16 of the Bill):

“(f) the objective of this Act, as set out in section 1A.”

  1. Replace new section 3(1) of the Act (via s.5 of the Bill) with:

“The State shall, so as to reduce the extent of further global warming, achieve complete decarbonisation between 2030 and 2035 at the latest, with the objective of not exceeding the fair and safe Irish emissions budget (in this Act referred to as the ‘national climate objective’).”

  1. Insert a definition of “complete decarbonisation” as follows:

“‘Complete decarbonisation’ means zero energy emissions, combined with nature-based solutions that enhance biodiversity to sequester greenhouse gases from sectors where some emissions remain inevitable. ‘Completely decarbonised economy’ shall be construed accordingly.”

  1. Delete the definition “climate neutral economy” and replace references to “climate neutral economy” throughout the Bill with “completely decarbonised economy”.

Accountability

  1. Delete new s.2A on the limitation of liability (s.4 of the Bill), which is wholly contrary to the principles of climate justice and is in our view unlawful. The European Convention on Human Rights Act 2003 s.3 provides for damages to be recoverable for infringements of human rights. By excluding this possibility, Ireland would fail to provide an effective remedy under Art 13 ECHR and Art 9(4) of the Aarhus Convention.
  2. Amend s.15 (Duties of certain bodies) – to include (c) the Government of Ireland within the definition of “relevant body.”
  • The following sections should in addition be amended to ensure that “the Government” (and not only “A Minister of the Government) has duties under these provisions:[1]
  • 4(11): current text “A Minister of the Government, shall, in so far as practicable, perform his or her functions in a manner consistent with the most recent approved climate action plan and the most recent approved national long term climate action strategy.”
  • 5(7): current text “A Minister of the Government shall, in the performance of his or her functions, have regard to a national adaptation framework approved by the Government under this section.”
  • 6B(13): current text “A Minister of the Government shall, in so far as practicable, perform his or her functions in a manner consistent with a carbon budget that has effect under subsection (7) or (11), as the case may be.”
  • 6C(9): current text “A Minister of the Government shall, in so far as practicable, in the performance of his or her functions, comply with the sectoral emissions ceiling that applies to the sector for which that Minister of the Government has responsibility.”
  1. Amend s.4(8)(k), s.4(11), s.6B(13), s.6C(9), s.14B(3), s.15(1) to remove “in so far as practicable.” This represents a ‘get out clause’ or loophole; moreover it is unclear what “practicable” refers to in this context.
  2. Amend s.4(3) of the Act (via s.6 of the Bill) to remove “In the Minister’s opinion” – such language seeks to ‘litigation proof’ the making of climate action plans, thus reducing accountability, and is inappropriate as such.
  3. The Bill should be amended to contain a much stronger legal duty requiring “the Government” and Ministers of the Government to stick to carbon budgets and to correct course and compensate where a budget is exceeded.

 

Climate Justice and a Just Transition

  1. Replace the definition of “climate justice” in the Bill (s.3 of the Bill) with a definition modelled on the “climate justice principle” from Scotland’s Act (s.35(23)) and insert a definition of just transition into section 1 of the Act modelled on the “just transition principles” from Scotland’s Act (s.35C).
  2. Insert new provisions – s.3(3)(c) and (d) (via s.5 of the Bill) – requiring the Government and Minister, in carrying out their functions under sections 4, 5, 6, 6B, 6C and 6D, to act in a manner that is consistent with the principles of climate justice and a just transition, and in a manner that represents the State’s highest possible ambition and progression:

“(c) that is consistent with the principles of climate justice and just transition, as defined in section 1, and

(d) that represents the State’s highest possible ambition and progression beyond the State’s then current action.”

Similar amendments will be needed in respect of all of the “consistent with” obligations in the Bill – for a list of the relevant provisions, see our “related amendments” under point 6 on pp.4-5 above.

  1. Insert provisions to comply with JOCCA’s recommendation 62 on loss and damage “as essential to our collective capacity to remain below 1.5°”

“The Government shall increase the State’s contribution to the Green Climate Fund and the United Nations Framework Convention on Climate Change Loss and Damage fund so as to be in line with countries with a similar GDP.”

“The Government shall provide loss and damage funding and support for mitigation and adaptation in Least Developed Countries, while retaining the State’s long-established principle of Untied Overseas Development Aid.”

Fossil fuels, aviation/shipping, and full life-cycle emissions

  1. Insert a provision to ban the importation of fracked gas as proposed by the Human Rights Law Clinic Irish Centre for Human Rights, Safety Before LNG, Belcoo Frack Free, and Love Leitrim.

“Amendment of Petroleum and Other Minerals Development Act 1960

Chapter IIA of Part II of the Petroleum and Other Minerals Development Act 1960 is amended:

(a) in section 5A by the insertion of the following definition after the definition of ‘enactment’: “‘fracked gas’ means petroleum got, raised, taken, carried away or worked by means of hydraulic fracturing;”

(b) by the insertion after section 5C of the following section:

“Prohibition on the importation of fracked gas

5D. (1) Notwithstanding anything in this Act or any other enactment or rule of law, it shall not be lawful for a person to import or sell fracked gas.

(2) For the purpose of the Customs Act, 2015, the importation of fracked gas is hereby prohibited.”

(c) by the insertion in section 5C after the words “section 5B” and before the words “shall be guilty” of the words “or subsection (1) of section 5D”.

  1. Ban the construction of LNG terminals in accordance with recommendation 4 of the JOCCA report.
  2. Ban exploration licences for oil and gas in accordance with the Government’s commitment of February 2021.[2]
  3. Integrate aviation and shipping emissions fully into carbon budgets and future action plans and strategies.
  4. Delete s.6C(2) of the Act (via s.9 of the Bill) and replace it with a definition of sectors to which the sectoral emissions ceiling shall apply, including Ireland’s international aviation and shipping sectors.[3]
  5. Delete s.4(8)(j) of the Act (inserted by s.6 of the Bill), which refers to carbon leakage – there is no evidence supporting the claim that climate policies will have this effect.
  6. Incorporate a prohibition on using credits or offsets as mitigation in accordance with JOCCA recommendation 63:

“The Minister and Government shall not avail of carbon credits or offsets to achieve complete decarbonisation.”

[1] See FIE v Government of Ireland [2021] IEHC 177.

[2] https://www.gov.ie/en/press-release/ee960-government-to-introduce-legislation-to-ban-new-oil-and-natural-gas-exploration-and-extraction/

[3] The UK is set to incorporate international aviation and shipping emissions into its new carbon budget https://www.spglobal.com/platts/en/market-insights/latest-news/coal/042021-uk-pm-johnson-to-back-78-cut-in-co2-emissions-by-2035-report