Open Letter on Ireland’s revised Climate Bill 2021.
Posted on: 14-05-2021
Open letter on Ireland’s revised Climate Bill 2021
We welcome the latest iteration of Ireland’s Climate Bill, which represents an undoubted improvement on the draft published in October 2020. The new general obligation (s.3(3)) requiring the Government and Minister to carry out their functions in a manner consistent with the objective of the UN Framework Convention on Climate Change (UNFCCC) and Articles 2 and 4(1) of the Paris Agreement is a positive statement of intent.
However, several gaps and issues remain which threaten to undermine Ireland’s commitment to the Paris Agreement and the need to limit global temperature increase to below +1.5C relative to pre-industrial levels. We therefore call upon the Government to incorporate the following amendments to ensure that Ireland’s Climate Bill provides a clear and binding commitment to remaining below +1.5C; to ensure that action on climate change and biodiversity loss is fully complementary; and to enshrine climate justice and just transition as the Bill’s central organizing principles.
- Overall level of ambition
1.1 The National Climate Objective (NCO)
The NCO is defined as follows: “The State shall, so as to reduce the extent of further global warming, pursue and achieve, by no later than the end of the year 2050, the transition to a climate resilient, biodiversity rich, environmentally sustainable and climate neutral economy (in this Act referred to as the ‘national climate objective’).” A climate neutral economy is defined as “a sustainable economy and society where greenhouse gas emissions are balanced or exceeded by the removal of greenhouse gases.”
However, it is unclear how much Ireland’s emissions will be reduced and how much Ireland’s emissions are expected to be balanced or removed (to achieve “neutrality”). Negative emissions technologies (NETs) are subject to “multiple feasibility and sustainability constraints” according to the Intergovernmental Panel on Climate Change. The technologies differ widely “in terms of maturity, potentials, costs, risks, co-benefits and trade-offs.” Indeed, the deployment of NETs may result in grave environmental and social consequences, overlooking the fact that the climate and biodiversity crises are inextricably linked.
Furthermore, a 2050 objective is too late for Ireland. It means that having already contributed disproportionately to the climate crisis, Ireland is set to consume more than our fair share of the rapidly depleting global carbon budget for 1.5C.
– The National Climate Objective should explicitly acknowledge that remaining within a 1.5C temperature threshold is the overarching goal of the bill.
– An appropriate definition for “complete decarbonisation” should be used in place of climate neutrality, to capture the following idea: “Complete decarbonisation refers to zero energy emissions, combined with nature-based solutions that enhance biodiversity to sequester carbon from sectors where some emissions remain inevitable.”
– Provide for a ratchet mechanism, in accordance with Article 4(3) of the Paris Agreement, to empower the Minister to bring forward the target year for complete decarbonisation and interim targets by way of secondary legislation (in a manner consistent with the delegation doctrine). This would help to ensure Ireland’s climate legislation reflects progression and highest possible ambition.
– In parallel, the Bill should be amended to give the Climate Change Advisory Council a specific duty to report, monthly, on whether Ireland’s target year for complete decarbonisation (or carbon neutrality, if the Government sticks with the current formulation) ought to be brought forward. The Advisory Council should answer the question each time it reports: does the current target year for complete decarbonisation represent Ireland’s “highest possible ambition” and “progression”?
1.2 A 2030 target
The inclusion of an interim target is positive; however, science and climate justice must be the barometers against which we measure progress and sufficiency. A reduction of 51% by 2030 against a 2018 baseline is not compatible with Ireland’s equitable contribution to tackling climate breakdown and is not comparable with proposed reductions in leading jurisdictions.
The Programme for Government commitment (if delivered) would amount to about -46% comparing annual emissions in 1990 vs annual emissions in 2030. This compares to the EU’s target of at least -55% over the same period, and the EU target is itself insufficient to comply with Paris Agreement. Ireland is therefore proposing to contribute below the EU average to an insufficient EU goal. This stands in contrast with the UK, which recently enshrined in law a target of achieving a 78% reduction in emissions between 1990 and 2035. Finally, it is worth noting that Ireland will not be enshrining in law the most ambitious target over the next decade; Denmark has enshrined -70% 1990-2030 in law, meaning a >51% reduction over the next decade.
Recommendation: As a first step, amend s.6A(5) to ensure the interim 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 (by way of example) is:
“The first 2 carbon budgets proposed by the Advisory Council shall provide for a total amount of greenhouse gas emissions over the course of the first 2 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.”
In parallel, the Bill should be amended to give the Climate Change Advisory Council a specific duty to report, monthly, on whether the ambition of this 2030 target ought to be raised, and whether any additional interim targets are needed. The Advisory Council should answer the question each time it reports: do current targets (% reduction and year) represent Ireland’s “highest possible ambition” and “progression”?
- Climate Justice and a Just Transition
The Bill does not provide adequate definitions or meaningful obligations regarding the principles of climate justice and just transition.
Just Transition is not defined in the Bill, contrary to JOCCA recommendation no 52. It is referred to as an item to which the Government and Minister must “have regard” when carrying out their functions under s.4 (see s.4(8)(k)):
the requirement for a just transition to a climate neutral economy which endeavours, in so far as is practicable, to—
(i) maximise employment opportunities, and
(ii) support persons and communities that may be negatively affected by the transition.
Recommendation: We call upon the Government to insert the definition of just transition provided by the International Labour Organisation, as recommended by the JOCCA:
A just transition means a transition that ensures the economic, environmental and social consequences of the ecological transformation of economies and societies are managed in ways that maximise opportunities of decent work for all, reduce inequalities, promote social justice, and support industries, workers and communities negatively affected, in accordance with nationally defined priorities, and based on effective social dialogue.
– Climate justice is poorly defined in the Bill as
‘Climate justice’ means the requirement that decisions and actions taken to reduce greenhouse gas emissions and to adapt to the effects of climate change shall, in so far as it is practicable to do so, safeguard the rights of the most vulnerable persons and endeavour to share the burdens and benefits arising from climate change.
Recommendation: Insert a definition for climate justice in accordance with recommendation 58 of the JOCCA report:
“Climate Justice should be defined in the Bill. It is recommended that this definition reflect the UNFCCC commitment to ‘common but differentiated responsibilities and respective capabilities’ and the principles that climate justice should; – support those who are most affected by climate change but who have done the least cause it. – support the human rights and wellbeing of local communities, indigenous peoples and the most vulnerable – be informed by science, respond to science, and acknowledges the need for equitable stewardship of the world’s resources, particularly biodiversity and ecosystems. -help address inequality and progressively distribute the financial responsibility for climate mitigation and adaptation measures.”
2.2 Meaningful obligations
There are no meaningful obligations underpinning the principles of climate justice and Just Transition in the Bill. As noted by multiple expert witnesses before the JOCCA, a “have regard to” provision imposes only a very weak obligation on the Government or Minister. Furthermore, unless the principles of climate justice and just transition are adequately enshrined within the Bill, a successful transition to a decarbonised society will be extremely difficult.
– Amend the Bill to insert a provision requiring the Government, the Minister, the Climate Change Advisory Council, and local authorities, in the creation and adoption of climate action plans, carbon budgets, sectoral carbon ceilings, and long-term strategies, to act consistently with the principles of climate justice and just transition (and not only “in so far as practicable”).
– Insert provisions to comply with JOCCA recommendation 62 on loss and damage:
– A provision requiring Ireland to increase its contribution to the UN Climate Fund could be inserted.
– The provision of loss and damage funding and support for mitigation and adaptation in LDCs should be named as essential to our collective capacity to remain within a 1.5C temperature threshold.
– Ensuring Ireland’s long-established principle of Untied ODA be retained.
- Fossil fuels, aviation/shipping, and full lifecycle emissions
The Bill does not address non-territorial emissions; does not address emissions from international aviation and shipping; does not address the importation of fracked gas or building of LNG terminals; and does not ban future exploration for oil and gas, despite the government’s February 2021 promise to include this in the Bill.
– Ban the importation of fracked gas in accordance with recommendation 4 of the JOCCA report
– Ban the construction of LNG terminals in accordance with recommendation 4 of the JOCCA report
– Ban exploration licences for oil and gas in accordance with the Government’s commitment of February 2021
– Integrate aviation and shipping emissions fully into carbon budgets and future action plans and strategies
– Delete s.4(8)(j), which refers to carbon leakage – there is no evidence supporting the claim that climate policies will negatively impact competition
– Incorporate a prohibition on using credits or offsets as mitigation in accordance with JOCCA recommendation 63:
(63) The Committee would regard it as inappropriate if the Government planned to meet its obligations by seeking offsetting from other countries rather than reducing emissions in Ireland. A specific prohibition could be considered.
Language in the Bill remains weak in certain key sections and should be strengthened; the Government should not seek to limit its accountability to the public for failing to act on climate change.
– Delete s.2A on the limitation of liability, 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.
– Last month the High Court clarified that “the Government” is not bound by s.15 (duties on certain bodies) of the Climate Act and that provisions that refer only to “A Minister of the Government” similarly do not bind “the Government” as a whole. The following should be amended to ensure that “the Government” also has duties under these provisions: 
– s.15 (Duties of certain bodies) – definition of “relevant body”
– s.4(11): “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.”
– s.5(7): “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.”
– s.6B(13): “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.”
– s.6C(9): “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.”
– Allowing the Minister to carry a budget overshoot forward by reducing the subsequent budget by an equivalent amount (s.6D(5)) could in practice simply lead to unsustainably small carbon budgets, and unfairness on whoever inherits the situation. 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. The current obligation to perform functions in a manner consistent with a carbon budget (s.6B(13)) applies only to Ministers (not also “the Government” as a whole) and only “in so far as practicable”.
– 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 – scientifically, morally, legally, economically, etc.
– Amend s.4(3) 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.
List of Signatories:
Climate Case Ireland
Safety Before LNG
Fridays for Future Ireland
Not Here Not Anywhere
Extinction Rebellion Ireland
Friends of the Irish Environment
Human Rights Law Clinic, Irish Centre for Human Rights, NUI Galway
Community Law and Mediation
ATD Fourth World Ireland
Union of Students in Ireland
Jesuit Centre for Faith and Justice
Environmental Justice Network Ireland
Just Transition Greens
The Latin America Solidarity Centre
The Dublin Ecofeminists
Friends of the Earth Nigeria
 Hof, C., Voskamp, A., Biber, M. F., Böhning-Gaese, K., Engelhardt, E. K., Niamir, A., Hickler, T. 2018. Bioenergy
cropland expansion may offset positive effects of climate change mitigation for global vertebrate diversity.
Proceedings of the National Academy of Sciences of the United States of America, 115(52), 13294–13299,
https://doi.org/10.1073/pnas.1807745115. And see Dyke, J., Watson, R. and Knorr, W. 2021. Climate scientists: concept of net zero is a dangerous trap. The Conversation (22 April 2021): https://theconversation.com/climate-scientists-concept-of-net-zero-is-a-dangerous-trap-157368
 UNEP’s 2016 Emissions Gap Report notes that “all available scenarios consistent with the 1.5°C goal imply that global greenhouse gas emissions peak before 2020.” Our emissions instead increased c.10% between 1990-2020.
 Ireland is set to enter into carbon debt as early as 2024: http://www.eeng.dcu.ie/~mcmullin/etc/MASGC-McMullin-2019-AAM/MASGC-McMullin-2019-AAM.pdf
 1.5°C is not a ‘safe’ level of global warming. With 1.5°C of warming, five hundred million people will be exposed and vulnerable to water stress, 36 million people could see lower crop yields, and up to 4.5 billion people could be exposed to heat waves. See Report of the Special Rapporteur on extreme poverty and human rights “Climate Change and Poverty” 2019.
 Alternatively, the definition from Scotland’s Climate Change Act 2009 (as amended) could be used.
 Alternative formulations could also be considered, such as the definition from Scotland’s Act, or the definition set out by Mary Robinson and Tara Shine: https://www.nature.com/articles/s41558-018-0189-7#:~:text=Abstract,people%20and%20their%20human%20rights.
 Globally, aviation emissions are 70% higher in 2020 than they were in 1990, and are projected to increase by 300-700% by 2050. The EPA has further warned that Ireland’s aviation emissions are increasing sharply.
 A 2013 study by the European Commission found no conclusive evidence of carbon leakage within the EU ETS framework. Some sectors observed increased imports or decreased exports, but this was mainly driven by market demand developments, and not by the EU ETS. See: https://ec.europa.eu/clima/sites/clima/files/ets/allowances/leakage/docs/cl_evidence_factsheets_en.pdf
This LSE paper analysed the likelihood of carbon leakage across 42 countries (including Ireland) and 62 sectors, and found that the future impact of more ambitious climate policies on companies moving their production abroad is likely to be “extremely limited”. https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2015/02/Working-Paper-178-Sato-and-Dechezlepretre.pdf
 Failure to adopt more stringent climate laws arguably puts Ireland at a significant competitive risk (some have warned of “green job leakage”), and in any case many other jurisdictions have similar or more stringent climate laws than Ireland.
 See FIE v Government of Ireland  IEHC 177.