The Climate Action and Low Carbon Development (Amendment) Act 2021 has been signed into law committing the State to 2030 and 2050 targets for reducing greenhouse gas ("GHG") emissions and providing the governance framework by which this is to be realised.
The Act follows through on Ireland's increasingly ambitious commitments in the area of climate action, apparent in the Programme for Government and 2019 Climate Action Plan. This is not Ireland's first climate law, but it significantly amends and strengthens the earlier Climate Action and Low Carbon Development Act of 2015.
Bold Emissions Reduction Targets
|2050 target (known as the National Climate
The Act binds Ireland to achieve net zero emissions by 2050. The key provision is that the "State shall ... pursue and achieve, by no later than the end of 2050, the transition to a climate resilient, biodiversity rich, environmentally sustainable and climate neutral economy". Climate neutral economy is a sustainable economy and society where GHG emissions are balanced or exceeded by the removal of GHGs.
As compared to the 2015 Act this is a significantly strengthened obligation, more clearly imposed on the State. It also goes further than the 2020 version of the Bill (which did not include the word 'achieve') before it underwent the scrutiny of the Oireachtas Joint Committee on Environment and Climate Change.
The first two carbon budgets (discussed further below) must provide for a reduction in GHG emissions of 51% by the end of 2030 as against 2018 levels.
A Governance Framework for Achieving the Targets
The Climate Change Advisory Council ("CCAC") will propose a Carbon Budget for each Budget Period to be finalised by the Minister for the Environment, Climate and Communications (the "Minister") and approved by the Government. A Carbon Budget is the total amount of GHG emissions that are permitted in a Budget Period. A Budget Period is five years and the first is from 1 January 2021 to 31 December 2025.
At any one time, three sequential Carbon Budgets have to be in place (although the third can be in draft). The three Carbons Budgets in place at any given time make up the Carbon Budget Programme. Carbon Budgets can be revised where there are new international obligations or significant developments in scientific knowledge; or where emissions fall short of (or exceed) the previous Carbon Budget in which case the surplus (or deficit) can be carried forward.
|Sectoral Emissions Ceilings
When a Carbon Budget takes effect, the Minister prepares for Government approval the Sectoral Emissions Ceilings which are the maximum emissions permitted in different sectors of the economy during the Budget Period. The sectors in which ceilings are imposed will be determined from time to time by the Government. The Act obliges each Minister, in so far as practicable, in the performance of their functions to comply with their Sectoral Emissions Ceiling.
|Climate Action Plan
The Minister must prepare for Government approval an annual update to the 2019 Climate Action Plan, starting in 2021. The Climate Action Plan must set out a roadmap of sector specific actions required to comply with the Carbon Budget Programme and Sectoral Emissions Ceilings, and other actions reasonably necessary to support Government policy on climate change. Particular levels of detail are required: the roadmap must specify measures required for the first Budget Period; set out an overview of the policies and, to the extent feasible, measures, required for the second Budget Period; and outline potential policies that may be required for the third Budget Period.
|National Long Term Climate Action
The Minister must prepare for Government approval a National Long Term Climate Action Strategy not less frequently than every five years. The purpose is to specify how it is proposed to achieve the National Climate Objective, consistent with the Carbon Budget Programme. The Strategy must include projected reductions in emissions and the enhancement of sinks for a minimum period of 30 years (both generally and per sector) and an assessment of opportunities for reducing them.
|National Adaptation Framework
A National Climate Change Adaptation Framework is already required under the 2015 Act, to be reviewed not less frequently than once every five years. It must specify the strategy for the application of adaptation measures in different sectors and by local authorities (county and city councils) to reduce the vulnerability of the State to the negative effects of climate change.
|Sectoral Adaptation Plan
A Sectoral Adaptation Plan is already required under the 2015 Act. Within three months of the National Adaptation Framework being laid before the Oireachtas the Government has to request Ministers to submit Sectoral Adaptation Plans for their areas of responsibility. They must specify measures for adapting to the effects of climate change and enabling achievement of the National Climate Objective. The new Act provides for two or more Ministers to make joint Plans.
Ministers and Government must carry out the functions described above in a manner consistent with the objective of the UN Framework Convention on Climate Change and resulting EU commitments, and must have regard to several matters (including value for money, scientific and technical advice, climate justice, long term economic competitiveness, the role of behavioural change, and the requirement for just transition). Consultation with the CCAC and the public are woven through the provisions of the Act.
The role and structure of the CCAC is strengthened. The maximum number of members is increased and the criteria for their appointment brings greater focus to expertise and experience. A CCAC Adaptation Committee must be established. The CCAC's functions in advising and making recommendations to Ministers and the Government are further developed to match the expanded governance framework. The same goes for the CCAC's reporting function: it will now conduct an annual review by 30 October and report to the Minister on progress and recommendations.
The 2015 Act requires an annual transition statement to the Oireachtas (with statements from relevant Ministers on policy measures and their effectiveness, emissions, and projected emissions). The new Act requires Ministers to attend the Oireachtas Joint Committee after the issue of the CCAC's annual report to give an account of progress in complying with the measures established under the governance framework. The Committee may make recommendations which the relevant Minister is bound to consider and reply to in writing within three months.
Each local authority (county and city councils) must prepare five yearly Local Authority Climate Action Plans to specify mitigation and adaptation measures, consistent with the relevant elements of the governance framework. They must have regard to the Plans when making a development plan within the meaning of the Planning and Development Act 2000.
Relevant bodies include numerous state and semi-state bodies. They must perform their functions in a manner consistent with the governance framework and the furtherance of the National Climate Objective. Ministers can direct a relevant body to adopt such measures as the Minister specifies, and also require them to report on measures taken and progress achieved.
Damages are excluded as a remedy for failure to comply with the Act. We have seen in recent climate litigation (such as Urgenda in the Netherlands and Neubauer in Germany) that the focus has not been damages as a remedy but rather the ordering of Governments to take more stringent action to reduce emissions to prevent further global warming and its harmful effects in order to safeguard citizens' rights under national and international law.
When the Act comes into operation the CCAC will be required to prepare and submit a Carbon Budget Programme to the Minister. To facilitate this the Government will make regulations to determine the GHG emissions to be taken into account and how they will be calculated and accounted. The next step will be the setting of Sectoral Emissions Ceilings. Revisions to the 2019 Climate Action Plan were consulted on earlier this year and the 2021 update is anticipated soon.
The new Act undoubtedly fixes the State with a more direct and ambitious climate obligation and puts in place a more sophisticated architecture to deliver the complex matrix of measures and actions that are going to be needed. The Supreme Court of Ireland has already struck down the National Mitigation Plan for failing to live up to its purpose under the 2015 Act, which should help to support stakeholders in driving forward the level of specificity of planned actions required.
In a month which also saw publication of the EU's Fit for 55 package, the Act comes at a time when it is planned to take considerable action to decarbonise all sectors across the economy. As noted in our briefing on Fit for 55, meeting 2030 targets will require unprecedented levels of private and public investment in largescale infrastructure. It will also require concerted and sustained efforts to rapidly streamline consenting and permitting processes, evolve regulated market systems, and facilitate routes to market for new or renewables technologies. Given that the challenge is no longer in agreeing the goal but in how to reach it, a statute based governance framework, an output of which is a highly specified set of actions appropriate to local circumstances, is an important step forward.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.