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Open Letter on Ireland’s 2020 Climate Bill.

The Climate Action and Low Carbon Development (Amendment) Bill 2020 (the ‘Climate Bill’) has been described by Climate Case Ireland campaigners as “designed to prevent litigation and avoid legal accountability” at a time when access to justice for environmental organisations and others is being restricted by government.

As Dr. Andrew Jackson pointed out to the Joint Oireachtas Committee on Climate Action, crafting a bill with a view to avoiding legal accountability is counterproductive. A weak legal framework will undermine climate action. Meaningful and sustained reductions in emissions, underpinned by science and climate justice, is the only course of action that will allay the concerns of those who may otherwise have to turn to the courts.

Moreover, this is second-generation climate legislation, and should be drafted accordingly. We call on the government to learn from the climate legislation trajectory of other nations. Particularly, the Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 which amended Scotland’s 2009 Climate Change (Scotland) Act.

We, the undersigned, call on the Fine Gael/Fianna Fáil/Green Party government to address the following issues in their draft Climate Bill:

1. Taking positive learning from Climate Case Ireland: Climate Case Ireland
successfully challenged the Government’s 2017 National Mitigation Plan on
the basis that the Government had failed to specify the manner in which it
proposed to achieve the overall objective of the original 2015 Climate Action
and Low Carbon Development Act within section 4(2)(a). The re-drafted 2020 Climate Bill makes a number of changes to reduce accountability such as:
a. Removing and replacing section 4(2)(a) of the Act. To preserve the
effect of the Supreme Court’s judgment, section 4(7), as inserted by the
Bill, should be deleted or amended to be “without prejudice” to section
4(6);
b. Requiring the government only to “pursue” the 2050 goal rather than
“pursue and achieve”; the latter was the phrase used in the 2015 Act
and the previous Government’s 2019 Heads of Bill;

c. Use of weak, permissive language to reduce legal accountability, such
as “have regard to” and “in the opinion of the Government”, “in the
Minister’s opinion”;
d. The 2050 objective no longer refers to achieving an “environmentally
sustainable economy”. This should be reinstated.

2. A 2030 Target: The National Climate Objective should reflect an explicit
commitment to complete decarbonisation (not “net-zero”) by 2030 at the very latest and an equitable and scientifically sound commitment to remaining within a 1.5C temperature limit. By decarbonisation we mean zero energy emissions, combined with nature-based solutions that enhance biodiversity to sequester carbon from sectors where some emissions will remain inevitable. We call on Ireland to join other European countries such as Norway, Iceland, Finland, Sweden, Scotland and Austria who have committed to decarbonising by 2030-2045. The Bill should furthermore include a ratchet mechanism that would empower the Minister to bring forward the decarbonisation year target and interim targets by way of secondary legislation (in a manner consistent with the delegation doctrine). The Bill should specify clear criteria to guide the Minister’s selection of an earlier decarbonisation target year and interim targets and would also need to protect against backsliding.

3. Climate Justice and Just Transition: Decarbonising Ireland’s economy in a
decade will not be easy. As Professor Kevin Anderson told the Joint
Committee on Climate Action, the burden of effort in decarbonising must be
borne by those who can easily afford to do so, not those that are already
struggling. For this reason, the principles of climate justice, and just transition should be defined, and should include the principle of a progressive distribution of the financial burden of climate mitigation and adaptation measures. These must be central organizing principles of the Bill, with clear accountability mechanisms.

4. Reliance on undeveloped and untested technologies: The Bill should aim
for full decarbonisation and a decarbonisation target year of 2030, rather than a ‘climate neutral economy’ – the Bill currently implies use of technological CO2 “removals” to reach its 2050 target. In his evidence to the Joint Committee on Climate Action, Professor Kevin Anderson reiterated the
IPCC’s statement that such technology has “multiple feasibility &
sustainability constraints” and should not replace real action to reduce
emissions.

5. Interim targets: The Bill’s carbon budgets should be pegged to interim
targets that will put Ireland on a pathway to a decarbonisation target year of 2030.

6. 7% not enough: The Programme for Government commitment to reduce
emissions by 7% a year on average over the next decade is not enough to
make a fair share contribution to keeping global temperature rise below
+1.5°C.

7. ‘Have regard to’ language should be strengthened: In his evidence to the
Climate Committee, Professor Barry McMullin states that the Bill’s carbon
budgets are to be guided by recommendations that will be “ungrounded…at
best arbitrary and at worst utterly ineffective”. The requirement to ‘have
regard to’ various matters in the setting of climate action plans, long-term
climate action strategies, national adaptation frameworks, sectoral adaptation plans and 5-year carbon budgets should be strengthened to ‘consistent with’ in relation to:
a. The overall objective of the UNFCCC and the temperature limits
specified in the Paris Agreement
b. Fulfilling the principles of climate justice and just transition;
c. Fulfilling the objectives of the National Biodiversity Action Plan, the
Aarhus Convention and in particular should respect, protect and fulfil
the rights of public participation in the creation of all plans, strategies,
and frameworks under the Bill as outlined by Dr. Áine Ryall to the
Committee.

8. Legal accountability needs to be built in throughout the Bill: Significantly,
the Bill lacks legal accountability. Carbon budgets should be legally binding.
All activities undertaken by public bodies, Government departments and
private industry should be consistent with the carbon budgets. “Borrowing”
from future carbon budgets should be prohibited, and emissions in excess of the carbon budget limit should be carried forward. Where the government is off-course in any carbon budget period and/or where a carbon budget is ultimately exceeded, there should be a binding legal obligation on the government to correct course and compensate as soon as possible and at the latest in the next budget period. Failure to remain within the carbon budget limit should be met with clear sanctions, rather than merely appearing before a committee. We call for all public bodies to carry out their duties in a manner ‘consistent with’ the temperature limits and principles of the Paris Agreement. The following language adapted from s.3(1) of the European Convention on Human Rights Act 2003, could usefully be inserted into the Bill for this purpose:
“Subject to any statutory provision (other than this Act) or rule of law, every
organ of the State shall perform its functions in a manner compatible with the overall objective of the United Nations Framework Convention on Climate Change and with the Paris Agreement’s aim of holding the increase in the global temperature to well below 2°C above pre-industrial levels and
pursuing efforts to limit the temperature increase to 1.5°C above
pre-industrial levels.”

9. Reparations: in building meaningful climate justice obligations into the bill, Ireland’s responsibility for loss and damage should be addressed. Ireland must immediately step up its contribution to the Green Climate Fund so as to be in line with countries with a similar GDP and support the UNFCCC Loss and Damage fund. Financing emissions reductions efforts overseas alongside the provision of technological support should be viewed as reparations for harms done due to climate change under the Loss and Damage mechanism.

10. Emissions from international aviation and shipping: Such emissions
associated with Ireland should be taken into account in setting the
decarbonisation target, interim targets, and carbon budgets under the Bill.

11. Impact assessment and reporting on emissions: All plans, projects and
programmes requiring environmental impact assessment or strategic
environmental assessment should be assessed for their full climate impacts
including non-territorial emissions based on the most up-to-date scientific
knowledge. Also, the EPA, as part of its regular emissions-reporting function, should be tasked with monitoring and reporting on Ireland’s “consumption emissions” in addition to our territorial emissions. For example, the UK estimates its emissions on a “consumption” basis along the supply chain for goods and services consumed in the UK, regardless of where they occur internationally.

12. Fossil fuel infrastructure and fracked gas: The construction of new fossil
fuel infrastructure and the re-permitting of existing infrastructure should be prohibited by the Bill. This is due to the full life cycle greenhouse gas
emissions in the development and operation of projects like liquefied natural gas (LNG) terminals and gas-fired power plants and storage facilities, and in light of the State’s obligations under both human rights law and to pursue the objectives of the UNFCCC and the Paris Agreement in good faith, and the implicit obligation to refrain from acts likely to frustrate these objectives. In solidarity with affected communities worldwide and given the irrefutable scientific evidence of the adverse public health, environmental and climate impacts of fracking, banned in Ireland since 2017, we also call for the insertion into the Bill of a section that amends the Petroleum and Other Minerals Development Act 1960 in order to prohibit the importation or sale of fracked gas.

13. The public’s role: Provide for strong obligations to proactively disseminate information relating to the functions and outputs of bodies under the Climate Bill to facilitate oversight and engagement and also provide for participation, particularly at a local level. Recommendation 1 of the Citizens Assembly should be implemented in full.[1]

14. The provisions relating to the Climate Change Advisory Council should be amended to:
a. Replace voting ex-officio members with independent experts (or at
least remove voting rights from any ex officios);
b. Be adequately resourced (UK Climate Change Committee’s Secretariat
has about 35 staff);
c. Be gender balanced;
d. Be inclusive of directly affected interests e.g. youth, future generations
and migrants from worst affected nations;
e. Add additional experts with expertise in industrial relations, law &
social justice;
f. Be tasked with regular reporting on whether current decarbonisation
dates, interim targets, long term strategy, carbon budget programme &
climate action plan represent “progression” and still represent Ireland’s
“highest possible ambition” in accordance with the Paris Agreement.

[1]
97% of the Members of the Citizens’ Assembly on Climate Change recommended that to ensure climate change is at the centre of policy-making in Ireland, as a matter of urgency a new or existing independent body should be resourced appropriately, operate in an open and transparent manner, and be given a broad range of new functions and powers in legislation to urgently address climate change. Such functions and powers should include, but not be limited to: To examine any legislative proposals, it considers relevant to its functions and to
report publicly its views on any implications in relation to climate change; the relevant Minister must respond publicly to the views expressed in a report prior to the progress of the legislative proposal; To propose ambitious 5 year national and sectoral targets for emissions reductions to be implemented by the State, with regular review and reporting cycles; To pursue the State in legal proceedings to ensure that the State lives up to its legal obligations relating to climate change.

List of signatories:

Organisations
Climate Case Ireland
Extinction Rebellion Ireland (XRI)
Fridays For Future Dublin
Fridays For Future Ireland
Not Here Not Anywhere
Dublin Ecofeminists
Just Transition Greens
RISE
Right To Change
Christian Aid
Friends of the Irish Environment
Irish Doctors for the Environment
Urgenda
Environmental Justice Network Ireland
Community Law and Mediation
National Women’s Council
Oxfam Ireland
War on Want
Friends of the Earth Nigeria
350.org
ClientEarth
Jesuit Centre for Faith and Justice

An Taisce
People Before Profit
Safety Before LNG
The Union of Students in Ireland
Love Leitrim

Individuals
Sinéad Mercier
Orla Kelleher
Clodagh Daly
Andrew Jackson
Attracta Uí Bhroin
Seán McCabe
Thomas Pringle TD
Ber Grogan
Paul Murphy TD
Joan Collins TD Right to Change
Catherine Connolly TD
Senator Lynn Ruane
Brid Smith TD People before Profit
Cllr Lorna Bogue
Beth Doherty
Saoi O’Connor
Max Fulham
Rose Guy

Rianna Carroll
Caroline Lewis
Tony Lowes
Ciara Brennan
Marjan Minnesma, CEO of Urgenda
Cllr Sophie Nicoullaud Green Party/Just Transition Green
Asad Rehman, War on Want Director
Chima Williams, Friends of the Earth Nigeria
Stevie Fitzpatrick CWU ( personal capacity)
John Barry