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Climate Justice: The Green Party’s Turn - Climate Action and Low Carbon Development (Amendment) Bill 2021

Published on 1 April 2021 at 13:05

You’d be forgiven for focusing your attention on Fine Gael and Fianna Fáil in the coalition government. After all, they are the bigger parties in power and have (rightfully) dominated most media coverages related to the government.
COVID-19 recovery means action on finance, public health, enterprise, employment, and foreign affairs.
But now, we see what the Green part of that equation entails. After all, they did also sign the programme for government.

 

On Tuesday, March 23rd 2021, Minister for Climate and Green Party Leader, Éamonn Ryan, has introduced sweeping amendments to the Climate Action and Low Carbon Development Act 2015 with the titular bill, commonly called the “Climate Bill” for simplicity.


Amongst the main targets are a 51% reduction in greenhouse gas emissions over the next 10 years and a net-zero carbon emission by 2050. This follows on from the Bill's introduction to the Dáil at the end of 2020 and its 8 weeks of intense pre-legislative scrutiny. The result is the 78 amendments, culminating in the Bill now brought by Minister Ryan.

 

A 2019 Citizen’s Assembly report demonstrates that this indeed is what the people find the most pressing issue, and so its ambition is to be expected, with “97% of Members recommend[ing] that to ensure climate change is at the centre of policy-making in Ireland…and be given a broad range of new functions and powers in legislation to urgently address climate change”.

 

The project would also adhere to proposed Directives and a Climate Law from the EU Commissions. Article 2 alone stipulates that “Union-wide emissions and removals of greenhouse gases regulated in Union law shall be balanced at the latest by 2050, thus reducing emissions to net-zero by that date.”
How will this Bill set to achieve this? And how did we get there?

 

To the surprise of no one, agriculture, Transport & Energy account for 73% of Ireland’s emissions. Given their importance to the economy, we can see why previous attempts have proved underwhelming in meeting Ireland’s Paris Agreement Targets, with a Climate Action Plan 2019 First Progress Report detailing this lagging.


“To date, Ireland has been a climate laggard, and repeatedly ranked as the worst-performing EU member state in the annual Climate Change Performance Index. Progress towards decarbonisation has been slow, though evidence of the climate crisis has never been more pressing or well-received. This includes a critical rally from the bottom-up for change, including from the next generation that will be impacted most by climate action or inaction taken today.”

 

The law in action could hardly be described as radical. Enacted under Enda Kenny’s government, the Climate Act 2015 lays out basic provisions to target climate change. It is inundated with committees and councils, of which have been described as cumbersome.


The ‘Climate Change Advisory Council’, as laid out in section 8, has been plagued with bureaucracy from too many economists serving on it.


Section 2 then takes painstaking lengths to tie the act firmly to the EU Directive. While this may sound like a positive, EU Directives are drafted specifically to allow member states to enact their own unique and varying laws to implement the Commission’s directive. Suffice it to say, Ireland had wide scope to be more daring in its implementation.
Ironically, this would have allowed it to adhere to its set targets more easily.

 

The core of the Act’s inadequacy stemmed from the National Mitigation Plan in section 4. The sheer administration detailed in subsections 8-13 guaranteed a slow pace of implementation and action for the then government and future ones. Each and every step had to be laid out “before both Houses of the Oireachtas”, subject only to government approvals after periodic reviews, and adherence to other aspects of Irish life. Indeed, Section 4 subsection 7(b) read, “The Minister shall take into account the need for sustainable development”, ensuring energy developments relying on carbon would not be hindered too much.

 

The Climate Bill 2021 comes out swinging in its first substantive section: Section 3 amends the 2015 Act in Section 1 by inserting a bevvy of new definitions, including “biodiversity”, “carbon budget”, “climate neutral economy”, and “climate justice”, whose meanings align more with what we think of when envisioning sweeping developments to tackle such an existential threat. Administrative overhauls follow with subsection d) abolishing the terms “approved national mitigation plan” and “national mitigation plan”.


Section 4 ensures compliance with the Act in meeting its emission targets by limiting liability for losses incurred from failures to adhere to duties under it.


Broad powers are given to the Minister then under Section 6C to implement maximum emissions permitted in any sectors which would see more actions being taken should carbon budgets be exceeded.

 

Cohesion between national and local levels is seen in later sections where local authorities must devise 5-year plans, which the Minister may add if necessary to achieve ultimate goals of decarbonisation. This is further aided with broader powers granted to the Climate Action Council and the abolition of the Climate Change Advisory Council, ironing the process of implementation in a race against the clock.

 

Beyond specifics, the rhetoric and overall nature of the Bill is reflective of a much-needed awakening in Ireland. Gareth Monaghan of Pinsent Masons noted that the “just transition” was an acknowledgement of the significant changes needed to fully implement this daring action plan. Despite this, perhaps this was another aspect in need of specific definition, as submitted in the Pre-Legislative Scrutiny on the draft of the Climate Action and Low-Carbon Development (Amendment) Bill 2020 by the Joint Committee on Climate Action.


“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 34 accordances with nationally defined priorities, and based on effective social dialogue”.


That definition was taken upon request from the International Labour Organisation (ILO) – were it to be implemented, it may mitigate many of the criticisms faced by the Green Party as of late levied by those on the left of politics.

 

Nevertheless, it was received with enthusiastic bipartisan support. Engineers Ireland welcomed the Bill for its scope in innovation and remarked on the ability to make quick, massive changes for public safety after COVID-19.

 

However, this only came from heavy criticism levied at a previous version of the bill. Dr Andrew Jackson of the UCD Sutherland School of Law submitted that its attempts to place any provisions of the 2015 Act outside of the courts’ jurisdiction would have resulted in a successful legal challenge.


Much of the documented polemic reaction came from Climate Case Ireland, whose successful Supreme Court case of Friends of the Irish Environment -v- The Government of Ireland & Ors cemented the government’s failure to adhere to its climate targets in its new plan as unlawful, under the Climate Act 2015.

Clarke CJ, in his judgment, also did not recognise the right to a sustainable climate environment as a derived right under the Constitution from the arguments submitted by FIE, including that climate justice is necessary to uphold the right to life, the right to bodily autonomy, and the right to dignity.


Moreover, its long-term target of decarbonisation and net-zero admissions by 2050 was deemed far too late, with the consequences of missing several other targets in the shorter term, particularly the carbon budget of 1.5 degrees by then.

 

One thing that jumps out from the Bill currently is the omission of a ban on diesel before 2030, which appeared in the Programme for Government. It remains to be seen whether this will be challenged enough by the Opposition so as to require it in the Bill before it is ratified and enacted into law.

 

Public consultation has begun on the Bill and will continue for the 8-week period until May 18th.

 

Regardless, so long as the upcoming does not scale down or deviate much from the current Bill, it is, in the words of Minister Ryan, “going to change our country”.


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