I am an assistant professor of environmental law at UCD and a practising solicitor, with qualifications in law and environmental science. I have published recently in the fields of climate law and biodiversity law, including a chapter on the history of Irish climate law that will appear in a forthcoming edited book on national climate Acts. My previous roles include working for the UK Government’s Department for Environment, Food and Rural Affairs, DEFRA, where I provided legal advice, drafted legislation and defended litigation. I have litigated cases for many years before the Irish, English and EU courts. Recently, I acted for Friends of the Irish Environment and Climate Case Ireland before the High Court and Supreme Court. The perspectives I offer on the Bill are, therefore, as an academic, a former drafter of legislation and a litigator.
Unfortunately, the Bill is very weak when compared to leading climate laws adopted elsewhere, and when compared to earlier draft laws prepared in this jurisdiction. That said, the Bill could easily be strengthened. First, interim targets should be included in the Bill to guide the creation of carbon budgets en route to net zero, consistent with limiting heating to 1.5°C. The Scottish Act is a useful exemplar here. A mechanism for modifying the net zero date and the interim targets should also be included, with reference to the need for "progression" and Ireland's "highest possible ambition", as per the Paris Agreement. There is, of course, a strong argument that 2050 is already too late for Ireland to reach net zero on the basis of equity.
Second, the Bill should include legal obligations requiring the Taoiseach or Minister to ensure that carbon budgets and targets are met, and requiring the Taoiseach or Minister to correct course and compensate if a carbon budget or target is not met. The Scottish, UK and New Zealand Acts provide useful precedents here, as does the Climate Change Bill produced in 2010 by an all-party predecessor joint committee. At that time, the Joint Committee on Climate Action and Energy Security proposed placing these legal duties on the Taoiseach. No such duties exist in the current Bill, and there is equally no obligation to ensure that climate action plans are consistent with adopted carbon budgets.
Third, the Bill requires the State to "pursue" but not "achieve" the 2050 climate objective, making the central objective of the Bill weaker than the objectives of the Climate Act 2015, the previous Government’s heads of Bill and the joint committee’s Bill of 2010. Also, the reference to an "environmentally sustainable economy" in the objective of the 2015 Act and the 2019 heads of Bill has been dropped and should be reinserted.
Fourth, "have regard to" is a weak legal obligation. The list of matters to which Ministers and the Government must currently "have regard to" in adopting plans, strategies, frameworks and carbon budgets could usefully be split, with the stronger requirement "must be consistent with" applying to certain matters. Regarding the principle of applying "must be consistent with" obligations to public bodies, see head 15 of the 2019 heads of Bill. Chief among the matters that public bodies should be required to act consistently with is the first item in section 3(3) of the Bill, that is, the overall objective of the UN framework convention and the temperature limits specified in the Paris Agreement.
Fifth, the public participation obligations in the Bill should be strengthened, and the principles of "climate justice" and "just transition" should be fully enshrined in the Bill. Climate justice remains undefined in the Bill and is undermined by the weak "have regard to" obligation that precedes it. The principle should be defined and made meaningful; for example, the Government could be required to report on how and the extent to which the principle has been taken into account in setting and reviewing the net-zero target date, interim targets, carbon budgets, plans and so forth. There is no reference in the Bill to the concept of a just transition, in contrast to Scotland's Act which sets out detailed "just transition principles" and requires the Scottish Government to explain the extent to which its climate plans take account of these principles and the sustainable development goals, SDGs.
Sixth, section 4(7) of the Bill should be amended or deleted, to ensure that the effect of the Supreme Court’s judgment in Climate Case Ireland is preserved.
Seventh, the Climate Change Advisory Council still has ex officio members, contrary to the recommendation of a joint committee in 2013. It is the subject of only a "best endeavours" obligation when it comes to gender equality and could do with additional expertise, including in the fields of law and just transition, and from the perspectives of youth and future generations.
Eighth, the Climate Change Advisory Council should be tasked with reporting, at least annually, on whether the current net-zero target date, the interim targets, the long-term strategy, the carbon budget programme and the climate action plan still represent Ireland’s "highest possible ambition". The Minister should be required to account at least annually to the joint committee on the same question, after receiving the advisory council’s findings and recommendations.
Finally, the Bill should be amended to ensure that actions to address climate breakdown and biodiversity loss are fully complementary. For example, the Bill could usefully promote, via the climate Act, nature-based solutions for mitigation and adaptation that enhance biodiversity.
While the Citizens’ Assembly recommended, with 97% support, that an independent body be resourced with functions to include pursuing the State in legal proceedings relating to climate change, the present Bill appears to have been crafted with a view to avoiding legal accountability. This is counterproductive. A weak governance framework will not see emissions fall, and falling emissions are the only thing likely to satisfy those who may otherwise turn to litigation. Further, litigation based on fundamental rights cannot be avoided by adopting a woolly climate law framework.
In conclusion, to stand a chance of limiting heating to 1.5°C, our emissions need to fall very deeply and very rapidly, starting immediately. We have just one shot at getting this legislation right. We know that robust framework climate laws enable effective action, and we know how such laws are designed.
I wish the joint committee every success in its work.