By Professor Barry McMullin, Dr Andrew Jackson and Professor John Sweeney
The Climate Action and Low Carbon Development (Amendment) Bill 2021 published by the Government in March 2021 is a very considerable improvement over the preliminary draft released in October 2020. The revised Bill benefited greatly from the pre-legislative scrutiny process of the Joint Oireachtas Committee on Climate Action, and represents a step-change in recognition by the Irish state of the global climate and biodiversity emergency.
The Bill proposes fundamental improvements in the governance of Irish climate action. Central to this is the architecture of a rolling 15-year greenhouse gas cumulative emissions budget programme, informed by independent expert advice, and transcending the terms of individual governments.
Against this background of strong support for the positive changes proposed in the Bill, we have serious concerns about a central provision: namely the transposing into the Bill of the near term (2021-2030) emissions reduction commitment agreed by the three Government parties in the Programme for Government 2020.
Near-term action is vital because there is a strong, consistent, almost linear relationship between cumulative CO2emissions and projected global temperature change. As such, there is a “forever” carbon budget associated with any given global average temperature increase.
Hitting a long-term emissions reduction target is necessary but insufficient
This means that hitting a long-term emissions reduction target is necessary but insufficient: it’s also necessary to reduce emissions rapidly in the near-term and medium-term in order to follow a downward trajectory that first limits and ultimately stops the cumulative build-up of greenhouse gases in the atmosphere, hence limiting global heating. The aim of the Paris Agreement is to limit heating to well below +2°C and to strive to limit heating to +1.5°C (we are already at +1.1°C), recognising that this would significantly reduce the risks and impacts of climate change.
While Ireland needs to further increase its level of ambition beyond current commitments if we are to limit heating to +1.5°C (as we must), the decision to put the Programme for Government’s near-term commitment on a statutory basis in the revised Bill, as recommended by the Joint Oireachtas Committee, is nevertheless a very important advance over the original draft. We welcome this intention, which has the potential to significantly strengthen near-term policy effectiveness. However, having scrutinised the language in the Bill, proposing the insertion of a new subsection 6A(5) into the Climate Act 2015, we have concluded that the current provision is fundamentally flawed, being at once uncertain in law and mistaken in science.
While there are several other important issues arising from the Bill as drafted, in this article we are focusing on this narrow question of the failure of the proposed s.6A(5) to legally or scientifically place the commitment from the Programme for Government for the period 2021-2030 onto a secure statutory basis.
The commitment in question was expressed as follows:
“We are committed to an average 7% per annum reduction in overall greenhouse gas emissions from 2021 to 2030 (a 51% reduction over the decade) …”
To transpose this commitment, section 9 of the Climate Bill proposes inserting a new s.6A(5) into the Climate Act 2015, imposing an explicit obligation on the Climate Change Advisory Council, in bringing forward its proposals for the first emissions budget programme (covering 2021-2035 in three 5-year periods), as follows:
“The first 2 carbon budgets proposed by the Advisory Council shall provide for a reduction of 51% in the total amount of greenhouse gas emissions over the course of the first 2 budget periods ending on 31 December 2030, from the annual 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“.
This provision is ambiguous between at least two entirely contradictory interpretations
In our view, this provision is entirely lacking in legal certainty. Whilst its meaning is in our view unclear full stop, the provision is ambiguous between at least two entirely contradictory interpretations:
A. That the cumulative emissions over the 10 year period (2021-2030) (“the total amount…over the course”) — i.e., the sum of the first two 5-year emissions budgets — must be at least 51% less than would have resulted from 10 years of continuing emissions at the 2018 level; or
B. That the first two 5-year emissions budgets must be somehow premised on (“provide for”) a specific outcome for the annual emissions in the year 2030, namely that annual emissions in that year should be 51% of the annual emissions in 2018.
There will be a real risk of litigation seeking to overturn the Climate Change Advisory Council’s first carbon budget proposals
This lack of clarity represents bad drafting and needs to be fixed in itself. Otherwise, there will be a real risk of litigation seeking to overturn the Climate Change Advisory Council’s first carbon budget proposals.
Interpretation A would, in effect, require substantially more ambitious mitigation than indicated in the Programme for Government (ostensibly an “average” of 14% p.a., with annual emissions in 2030 being 77% below the current level). Presumably the Government doesn’t really intend that.
Interpretation B opens up the possibility that the Council might permissibly propose a budget for the period 2021-2030 that corresponds to an average annual reduction rate that is much less than the 7% p.a. promised in the Programme for Government
But interpretation B opens up a risk of a poorly characterised, but certainly significant, shortfall in ambition, relative to what the Programme for Government expressly committed to: in particular, it would open up the possibility that the Council might permissibly under s.6A(5) propose a budget for the period 2021-2030 that corresponds to an averageannual reduction rate (in the sense of giving the same “total emissions”) that is much less than the 7% p.a. promised in the Programme for Government; but obscured by a (fig leaf) claim that this is still technically consistent with a possibility that the annual emissions level in 2030 in isolation might still end up being 51% below the annual figure in the Government’s chosen baseline year, 2018. This would imply much more contribution to global heating than promised.
To take an example for illustrative purposes, the 51% reduction in annual emissions could technically be achieved, say, by emissions remaining at their annual 2018 level (or even rising) until 2029, followed by a fancifully precipitous (and in practice unachievable) reduction in 2030 (the blue ‘Predatory delay’ pathway in Fig. 1). In basic terms, under interpretation B the Bill would have dropped the 7% p.a. average reduction that was explicit in the Programme for Government commitment, and in doing so would have significantly undermined its effectiveness. While the Bill might still refer to a “51% reduction” (annual emissions in 2030 vs annual emissions in 2018), the linkage of this to a corresponding 7% p.a. reduction is actually essential to place an unequivocal upper limit on the carbon budget that may be proposed for the 2021-2030 period.
In summary, if B is the Government’s intended interpretation, which seems plausible (certainly it is the more plausible of our two candidates): first, the drafter has not achieved what the Government ostensibly intended; but second, and more seriously, such an intention falls seriously short of copper-fastening the Programme for Government’s commitment to strongly limit Ireland’s near term (2021-2030) contribution to global heating.
The drafting of s.6A(5) will need to be fixed during the Bill’s passage through the Oireachtas to clarify the meaning one way or the other. Thankfully, from a legal and scientific point of view the difficulties we have highlighted are relatively easy to fix. Indeed, we have written to the three Government party leaders offering two candidate wordings, either of which would do just that. In response, Minister Ryan has stated that he welcomes “engagement by scientific and legal experts in relation to the provisions of the Bill”. We take that in good faith. Further, we assume that all concerned remain committed to realising the ambitions of the Programme for Government. Accordingly, we now look forward to an effective correction of this necessarily technical, but nonetheless very important, provision of the new legislation.