The day after tomorrow

The publication of new Irish legislation, as well as a seminal Supreme Court decision, are highly relevant to the EU and international policy framework regarding the governance of climate action.

Tackling climate change requires radical transformation across all sectors. There is broad agreement about what needs to happen – decarbonise power and transport, increase energy efficiency of buildings, increase sustainability in manufacturing and industry.

But achieving this requires long-term decision-making around infrastructural development, effective regulatory and market design, well-targeted taxation and allocation of public funds, and regulation conducive to sustainable private finance.

Climate governance provides a framework for setting the targets to be met, requiring the formulation of policies and plans to elaborate how it is proposed to meet those targets, and monitoring progress.

Long-term policy needs to be spelled out with a level of certainty and specificity that is adequate to enable the necessary projects to be planned, financed and delivered.

Ambitious direction

Climate governance at both EU and domestic level is undergoing change, as might be expected, given that there is now a dramatically increased level of ambition in tackling climate change.

At EU level, the 2019 Communication on the European Green Deal outlined an all-sector approach to reducing emissions and decoupling economic growth from resource use in order to reach zero net emissions of greenhouse gases in 2050.

The commission was to present an impact-assessed plan to increase the existing 2030 target of reducing emissions by 40% to at least 50% (as against 1990 levels).

Having carried out that assessment, the commission published a Communication on Stepping up 2030 Europe’s Climate Ambition in September 2020.

This was a keynote part of the state-of-the-union address, and it carried a stark message: the current policy and legal framework would not be enough to enable the EU to reach its 2050 goals and to meet its commitments under the Paris Agreement.

Accordingly, the commission proposed to increase the 2030 emissions reduction target to at least 55% and the parliament is seeking to raise this further. This will also result in new EU targets for renewable energy and energy efficiency.

A revision of key EU legislation is underway (including the ETS Directive, the Effort Sharing Regulation, the Land Use Regulation, the Renewables Directive, the Energy Efficiency Directives, and the Energy Taxation Directive).

In terms of climate governance, not only will the Energy Union Governance Regulation be revised to factor the new target into member states’ current climate policy-planning and reporting obligations, but a new regulation is also in train, colloquially referred to as the European Climate Law.

It seeks to establish a “framework for the irreversible and gradual reduction of greenhouse gas emissions and enhancement of removals by natural or other sinks in the union”. It would bind EU institutions and member states to take necessary actions to achieve carbon neutrality by 2050, and would require the commission to monitor progress and take appropriate enforcement action where targets are not being met.

In Ireland, the Programme for Government and the 2019 Climate Action Plan set a target of reaching a carbon-neutral economy by 2050. The Programme for Government elaborates strategies aimed at reducing emissions by an average of 7% each year from 2021 to 2030, which equates to a reduction of 51% over the decade.

It commits to meeting at least 70% of electricity demand by renewable power by 2030. Ireland has also delivered its National Energy and Climate Plans for 2021-2030 in accordance with the EU Governance Regulation.

Governance framework

The focus of this article is on two significant developments in Ireland that are highly relevant to the EU and international policy and legal framework: first, the publication of the Climate Action and Low Carbon Development (Amendment) Bill and, second, the Supreme Court’s decision in Friends of the Irish Environment CLG v Government of Ireland, Ireland and the Attorney General ([2020] IESC 49).

The Programme for Government committed to introducing a climate action bill within the first 100 days of Government. The Climate Action and Low Carbon Development (Amendment) Bill 2020, published on 7 October, would make significant amendments to the Climate Action and Low Carbon Development Act 2015.

The bill’s key provision would oblige the State to “pursue the transition to a climate resilient and climate-neutral economy by the end of 2050”. ‘Climate neutral economy’ means “a sustainable economy, where greenhouse gas emissions are balanced or exceeded by the removal of greenhouse gases”.

This obligation is called the ‘National 2050 Climate Objective’ and would replace the 2015 act’s ‘National Transition Objective’.

The bill sets out a detailed framework for climate governance to achieve the national 2050 climate objective. This is summarised below:

• Carbon budgets – five-year carbon budgets would be proposed by the Climate Change Advisory Council (CCAC), finalised by the minister, and approved by the Government. (In the 2015 act, the minister is defined as the Minister for the Environment, Community and Local Government. The bill is brought forward by the Minister for Environment, Climate and Communications.) A ‘carbon budget’ is the total amount of emissions permitted during the budget period. A first budget period would commence at the start of 2021 for a period of five years. At any given time, there would be visibility of the current budget, plus budgets for two subsequent periods – and that 15-year perspective is called a ‘carbon-budget programme’. After a carbon budget is approved, a ‘decarbonisation target range’ would be set, which is the “target range of greenhouse gas emissions that are permitted in different sectors of the economy within the limits specified in the carbon budget”.
• Strategic and planning framework – the bill would require the minister (or in the case of the sectoral adaptation plan, each of the relevant ministers) to make the following, and submit them to Government for approval:
  a) Annual revisions of the Climate Action Plan, to enable the State to pursue the national 2050 climate objective. This would be a roadmap of actions, including sector-specific actions, and would take into account the carbon budget programme. It would address policy and measures for the first five years; then, for the next five years, policies and, if feasible, measures; and then, for the final five years, potential policies.
  b) Long-term climate action strategies to specify the manner in which it is proposed to meet the national 2050 climate objective. These may include projected emissions reductions and the enhancement of carbon sinks for a minimum of 30 years; projected emissions reductions and enhancement of carbon removals by sector; and an assessment of potential opportunities in relevant sectors. These would have to be made not less than once every ten years (or five years if the minister thought it appropriate). They would have regard to article 15 of the EU Governance Regulation, which requires member states to submit long-term strategies with 30-year perspectives to the commission.
  c) National adaptation frameworks that focus on reducing vulnerability of the State to the negative effects of climate change and on availing of any positive effects.
  d) Sectoral adaptation plans to specify the adaptation policy measures that each minister, having regard to the national adaptation framework, proposes to enable adaptation to the effects of climate change in the sector(s) concerned.

The last two of these are already provided for in the 2015 act. However, the bill would provide an expanded list of matters to which the minister and Government must have regard in finalising these documents (in the areas of international and EU commitments, Government policies, climate justice, emissions data, science and technology, CCAC recommendations, and more).

Compared with the 2015 act, the bill frames the CCAC’s advisory and reporting roles in line with the more detailed governance framework proposed.

In addition to the CCAC’s reporting obligations, what other oversight would be provided? A new section on climate reporting would require ministers to attend and report on progress before a joint committee of the Oireachtas, following which the committee could make recommendations to which the relevant minister would be required to respond.

The overriding obligation in respect of the National 2050 Climate Objective is on the State. Apart from Oireachtas oversight, what else does the bill say about compliance with the framework?

Ministers, in the performance of their functions, would be required to have regard to the carbon budget and take account of the decarbonisation target range. Local authorities would be required to make five-year plans to specify mitigation and adaptation measures.

Relevant bodies, in the performance of their functions, would have to take into account the plans/strategies, the National 2050 Climate Objective, and the objective of mitigating emissions and adapting to the effects of climate change. (‘Relevant bodies’ are prescribed bodies and public bodies, as defined in the Freedom of Information Act – these are numerous entities.)

A minister could direct a relevant body to adopt measures for the purpose of compliance with the framework, and could require relevant bodies to report on measures taken and progress made.

And the Supreme Court?

In July 2020, in Friends of the Irish Environment, the Supreme Court quashed the National Mitigation Plan, which had been made pursuant to the 2015 act.

What is the statutory background relevant to this case? The 2015 act required a ‘national mitigation plan’ to be made for the purpose of enabling the State to pursue and achieve the transition to a low-carbon, climate-resilient and environmentally sustainable economy by the end of 2050 (the national transition objective, or NTO).

Section 4 sets out the matters that should be specified in the mitigation plan. The overriding requirement is that it must specify the manner in which it is proposed to achieve the NTO. It should specify the policy measures needed to achieve the NTO, and measures are required to be specified by reference to various sectors.

There must be a new plan at least every fifth year (which the court considered to mean that there should be a series of rolling plans, rather than a series of five-year plans).

Section 4 also requires a proposed plan to be published, and submissions invited from interested parties. The court considered this to be significant – there was a clear statutory policy of transparency and public participation, such that the public was entitled to know how the Government intended to meet the NTO.

A National Mitigation Plan was published in July 2017. There were numerous responses during the consultation period. The plan envisaged an increase in emissions over an initial period while, at the same time, committing to achieving zero net carbon emissions by 2050.

Why quash the plan?

The court ordered the quashing of the plan on the basis that it failed to comply with its statutory mandate and was therefore ultra vires the 2015 act. The key conclusion was that the 2015 act “requires a sufficient level of specificity in the measures identified in a compliant plan that are required to meet the National Transitional Objective by 2050 so that a reasonable and interested person could make a judgement, both as to whether the plan in question is realistic, and as to whether they agree with the policy options for achieving the NTO which such a plan specifies.

The 2015 act as a whole involves both public participation in the process leading to the adoption of a plan, but also transparency as to the formal Government policy, adopted in accordance with a statutory regime, for achieving what is now the statutory policy of meeting the NTO by 2050.

A compliant plan is not a five-year plan but, rather, a plan covering the full period remaining to 2050. While the detail of what is intended to happen in later years may understandably be less complete, a compliant plan must be sufficiently specific as to policy over the whole period to 2050 […] the plan falls well short of the level of specificity required to provide that transparency, and to comply with the provisions of the 2015 act.”

The court considered that the plan did not just fall short, it fell “well short” of the specificity required by statute.

How did the court gauge the level of specificity? The starting point was to consider the purpose of the act as a whole, and the court considered this to be public participation and transparency. The public-participation purpose was met by the requirement to consult. It was to the transparency purpose that the specificity mandated by section 4 was directed.

Specific plan

The purpose of requiring the plan to be specific was to allow any interested member of the public to know enough about how the Government intended to meet the NTO so as to inform the views of the reasonable and interested member of the public as to whether the policy could be considered to be effective and appropriate.

The court then looked at the plan itself. The court placed significant weight on the views of the CCAC, which had indicated that Ireland was off-course in terms of its commitments to addressing climate change.

The court characterised some of the policies in the plan as “excessively vague or aspirational” or requiring the carrying out of further research. The court found this unsatisfactory, adding that, even though measures might have to be adjusted over time because of developments in knowledge, data or technology, a best current estimate as to how the NTO was going to be achieved needed to be made now.

Too much had been left to further study or investigation for the reasonable and interested observer to know how it was intended to achieve the NTO.

There was no dispute between the parties that Friends of the Irish Environment (FIE), an incorporated association, had standing to challenge the vires of the 2015 act. Two other preliminary issues are worth noting:

• The question of whether the plan met the requirements of section 4 of the 2015 act was justiciable. The Government contended that the substantive policy content of the plan could not be judicially reviewed. The court, however, noted that there was legislation and “where the legislation requires that a plan … does certain things, then the law requires that a plan complies with those obligations … The choices as to how the NTO might be achieved may well be policy choices, and real questions might arise at to the extent to which those choices might be justiciable. However, whether the plan does what it says on the ‘statutory tin’ is a matter of law and clearly justiciable.”
• The challenge to the vires of the plan did not amount to an impermissible collateral attack on the 2015 act. FIE’s claim was simply an assertion that the legislation required a particular level of specificity to be met in the formulation of the plan. It did not suggest that there was any problem concerning consistency of the act with the Constitution.

Rights-based claim?

During the course of this litigation, there were submissions that the plan failed to vindicate rights under the Constitution and the European Convention on Human Rights. Because a basis to quash the plan had already been identified, it was not necessary to deal with these aspects of the case.

However, the court did consider that it should state its view on two issues that could be relevant to future challenges by corporate NGOs in the environmental field in respect of any future plan – standing; and whether there was an unenumerated/derived right to a healthy environment.

Did FIE have standing to mount a rights-based claim? No – the rights on which FIE sought to rely were personal rights that FIE, as a corporate entity, did not enjoy. (FIE sought to rely on the Constitutional right to life, right to bodily integrity, and right to an environment consistent with human dignity.

It sought to rely on articles 2 [right to life] and 8 [private and family life] of the convention.) The court discussed the leading authorities, commenting that Irish rules relating to standing are flexible, but not infinitely so.

Is there an unenumerated or derived right to a healthy environment under the Irish Constitution? The lower court had considered that there was a right to an environment consistent with human dignity, as had the court in Friends of the Irish Environment v Fingal County Council ([2017] IEHC 695).

However, the Supreme Court held that such a right is impermissibly vague: “It either does not bring matters beyond the right to life or the right to bodily integrity, in which case there is no need for it. If it does go beyond those rights, then there is not a sufficient general definition (even one which might, in principle, be filled in by later cases) about the sort of parameters within which it is to operate.”

That said, the court was keen to acknowledge that there may well be cases, which are environmental in nature, where constitutional rights and obligations are engaged. It stated that, while questions of general policy do not fall within the remit of the courts under the separation of powers, if an individual with standing to assert personal rights were to establish that those rights had been breached in a particular way, then the court would be bound to vindicate such rights and uphold the Constitution.

Therefore, in an appropriate case, it might well be that constitutional rights would play a role in environmental proceedings.

Forward momentum

The bill is a Government priority, with chief whip Jack Chambers citing it as one of the bills in the current legislative programme that will help to rebuild the economy and regenerate society.

Compared with current legislation, and for the first time, it enshrines the State’s commitment to moving to carbon neutrality by 2050, and it provides a more developed governance framework to support the very significant level of action that is required.

The Supreme Court’s judgment will help to add momentum to the increasing sophistication of climate policy in Ireland. Development of energy and climate policy is iterative and collaborative, but requires enough detail and specificity to enable long-term investment decisions to be made.

Given that, in terms of infrastructural development, a decade is a short period of time, and that the court stressed that the plan should cover the entirety of the period to 2050, it already seems clear that a similar expectation would arise in respect of the various documents specified in the bill, given that they are to be made “for the purpose of enabling the State to pursue the national 2050 climate objective”.

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