Analysing the Climate Action Bill: Progressive Agenda or Greenwashed Illusion? by Eoin Jackson

By Eoin Jackson, SS Law

On the 23rd July 2021, President Higgins signed the Climate Action and Low Carbon Development (Amendment) Bill 2021 into law (hereinafter the 2021 Bill). The 2021 Bill commits Ireland to become carbon neutral by 2050, while it aims to achieve a 51 per cent reduction in 2018 carbon emissions by 2030. This article seeks to analyse the 2021 Bill and consider whether it contains sufficient provisions to ensure that Ireland becomes a sustainable carbon neutral economy by 2050.

One of the central functions of the 2021 Bill is to enhance the role of the Climate Change Advisory Council (hereinafter the Council). According to Section 6A of the 2021 Bill, the role of the Council is to “prepare a carbon budget, consistent with furthering the achievement of the national climate objective” for a 5-year period. These budgets are then renewed every 5 years until the end goal of carbon neutrality by 2050 is achieved. The Council can also be consulted by the Minister to assess what the best strategies are to achieve carbon neutrality. The Council itself consists of experts in fields such as, “Climate science, energy policy and economics,” among other relevant fields, as per Section 4. It is therefore designed to add a layer of expertise to the government’s attempts to transition towards a sustainable economy.

While the 2021 Bill is progressive in terms of codifying the role of the Council, it is disappointing that the proposed carbon budgets can still be subject to amendment by the relevant Minister. This means that, where the Minister disagrees with any section of the carbon budget, they can amend the targets provided that, as per Section 6B(5), they set out reasons for doing so. There is no guidance provided as to what reasons would be considered justifiable where the carbon budget is being reduced, which pose problems should a Minister be lobbied by polluting sectors (e.g the agricultural sector), to amend in a manner that is not conducive to carbon neutrality. This takes away some of the Council’s power, as it appears that a Minister can veto a section of the budget as they see fit.

Further, Section 6(11) reduces the Council’s capacity to create effective budgets. This section renders the government responsible for “determining how the removal of greenhouse gas emissions may be taken into account, and in particular the method of calculating and accounting for such removals, including the base year to be applied to such removals, when complying with a carbon budget and a sectoral emissions ceiling.”

The Council is bound to comply with these regulations, meaning they can only create a carbon budget in accordance with the government’s determination of how a greenhouse gas is to be calculated. This is dangerous as it allows governments to manipulate figures and adjust greenhouse gas emission figures in a manner that may be more favourable to the ruling party of the day. By setting out preliminary barriers to the calculation

of emissions, the Council is forced to operate within the government’s parameters. Consequently, the setting out of accurate and enforceable carbon budgets is subject to the good faith of the government as opposed to a legally binding target.

In light of the success of Friends of the Irish Environment v Government of Ireland (2020), which triggered the need for a new Climate Action Bill, there is evidence that the government is now seeking to ensure further public interest litigation of this kind will experience legal barriers. This can be seen in Section 2A of the Bill, which states; “for the avoidance of doubt no remedy or relief by way of damages or compensation is available with respect to or arising out of any failure, of whatever kind, to comply with any provision of this Act or any obligation or duty created thereunder.”

The limitation on liability is perhaps grounded in a fear of the floodgates opening were private actors able to challenge every failure to reach carbon emission reduction targets. However, it also waters down the enforceability of the 2021 Bill, particularly when considered in light of the aforementioned limitations on the enforceability of carbon budgets. The impact of this limitation remains uncertain, particularly in light of Friends of the Irish Environment, which has established a capacity for the Courts to intervene where climate change targets are not being met. For the moment, it symbolises a reluctance for the government to be held to account where they fail to deliver on much needed reductions.

A particularly disappointing aspect of the 2021 Bill is the lack of discussion and enforcement of climate justice when pursuing carbon neutrality. The United Nations Development Program defines climate justice as “legal transformations aimed at curbing abuses of power that result in the poor and vulnerable suffering disproportionate impacts of pollution and lacking equal opportunity to access and benefit from natural resources.”

While Section 8 of the 2021 Bill does state that the Minister “shall have regard” to climate justice, this is not expanded upon to clarify to what extent the Minister is obliged to take account of the needs of the marginalised. Similarly, the 2021 Bill makes reference to a “just transition,” but does not offer a method of recourse if this is not achieved. At the same time, the language is better than the previous version of the bill released in January 2020, that included no mention of either term. Thus, while not perfect, there may be some scope for litigation if there is an evident failure of a Minister to take account of these factors.

The 2021 Bill passed in July with a large majority and much media coverage. While it represents a progressive step by the Irish government, there are substantial limitations in its power and enforceability, which begs the question - is the 2021 Bill a form of legislative greenwashing? This question cannot be answered until there are further developments on both a political and legal level to ascertain the extent to which the government intends to comply with its climate obligations. In the meantime, there is hope that the 2021 Bill will create a sustainable future, notwithstanding its discussed flaws.