On 23 March 2021, the Government published a revised draft text of the Climate Action and Low Carbon Development (Amendment) Bill 2021 (the “Bill”).

The Bill proposes to amend, inter alia, the Climate Action and Low Carbon Development Act 2015 (the “Principal Act”) and is part of a greater European and, indeed global, movement to reduce the world’s greenhouse gases. The Bill is currently in the public consultation phase which will end on the 18 May 2021. We outline some of the key points of the Bill below:

The National Climate Objective

The Bill requires the State to “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” (the “national climate objective”). The national climate objective replaces the “national transition objective” contained in the Principal Act which did not place such an obligation on the State.

A Plan of Action

The Principal Act had at its core a mitigation plan, whereas the Bill mandates certain planned actions for the purpose of pursing and achieving the national climate objective to include:

• Carbon Budgets will be proposed by the Advisory Council, finalised by the Minister for the Environment, Community and Local Government (the “Minister”), and approved by the Government for the period of five years commencing on 1 January 2021 and ending on 31 December 2025 and for each subsequent period of five years. The Bill requires the first two carbon budgets to provide for a reduction of 51% in the total amount of greenhouse gas emissions over the course of the first two budget periods ending on 31 December 2030.
• A Sectoral Emissions Ceiling which provides for the maximum amount of greenhouse gas emissions that may be permitted in each sector of the economy during a budget period. The Minister responsible for the sector will oversee compliance with the sectoral emission ceiling designated to their area but it remains to be seen what the consequences for non-compliance will be (see limitation of liability below). Although the Minister is required to consider climate justice (discussed below) when preparing this ceiling, the Bill does not require the Minister to consult with the public or representatives of the sectors of the economy to be affected which is likely to be an issue of contention.
• A Climate Action Plan requires the Minister to update annually the ‘Climate Action Plan 2019: To Tackle Climate Breakdown’, first published by the Minister on 17 June 2019. In this regard, the Minister must ensure that the plan is consistent with the carbon budget programme and must set out a roadmap of actions including, for example, measures to inform, and promote dialogue with, the public during the transition to a climate neutral economy.
• A National Long Term Climate Action Strategy must be prepared by the Minister every 5 years and is to contain:
      (a) the projected reductions in greenhouse gas emissions and the enhancement of sinks, for a minimum period of 30 years,
      (b) projected reductions in greenhouse gas emissions in each of the relevant sectors subject to an emissions ceiling, for a minimum period of 30 years, and
      (c) an assessment of potential opportunities for achieving reductions in greenhouse gas emissions in the sectors subject to an emissions ceiling.
• A National Adaptation Framework is to be reviewed by the Minister not less than once every five-years. This Framework will specify the national strategy for application of the measures in different sectors in order to reduce the vulnerability of the State to the negative effects of climate change and avail of positive effects of climate change that may occur.

Climate Justice

The Bill requires the Advisory Council, the Minister, and the Government to have regard to “climate justice” when carrying out their duties and functions. Climate justice is defined in the Bill as “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.”

Commentators have identified concerns with this definition, some noting that it potentially falls short of what is required to achieve climate justice. It has been suggested that Ireland should adopt an approach like the Scottish legislators have taken in the Climate Change (Scotland) Act 2009. This Act specifies that any climate action taken must support those who are most affected by the climate crisis, while also supporting those who have contributed least to the cause of climate crisis.

Limitation of Liability: all carrot and no stick?

The Bill provides that “no remedy or relief by way of damages or compensation is available” for “any failure, of whatever kind” to comply with any provision of the Bill or any obligation, or duty arising from it. One would hope that reversing the effects of climate change (the “carrot”) will provide sufficient motivation for the State and, indeed, the citizens of Ireland to comply with climate legislation nonetheless, the lack of enforcement provisions in the Bill (the “stick”) is disappointing. It remains to be seen if this element of the Bill will be retained following public consultation.

Climate Reporting

Under the proposed Bill there is an increased involvement for local authorities who will be required to prepare a climate action plans every 5 years. These plans should specify the mitigation measures and adaptation measures to be adopted by the local authority.

The Minister also has an important role in climate reporting and he/she must report annually on the following matters, at the request of the joint committee:

a) Sector specific progress;
b) Whether there has been a reduction or increase in greenhouse gas emissions;
c) Compliance with the sectoral emissions ceiling; and
d) The implementation of the adaptation policies prepared.

Commentary

While the revised text in the Bill develops a much clearer roadmap for the reduction of greenhouse gas emissions, it remains to be seen what actual effects the Bill will have on each sector of the Irish economy as the abovementioned action plans will not be published until after the Bill is enacted. We look forward to seeing the results of the public consultation and how influential the consultation has been on the legislation.