Last week the Green Party’s flagship policy, the Climate Action and Low Carbon Development (Amendment) Bill 2020, was published. I was struck how questions about the relationship between the Tánaiste and the Chief Medical Officer overshadowed questions about Covid-19 restrictions and climate governance. Form was elevated over function as a good story overcame concerns about detail.
The 2020 Climate Bill amends the 2015 act. While it improves existing legislation in some respects, it does not compare favourably internationally or with prior Irish commitments. We are proposing to create a climate law 2.0 that is significantly worse than the first-generation laws in several other countries, some of which were created over a decade ago.
Similar climate laws in the United Kingdom and New Zealand offer clear examples on how real climate governance works, yet the Green Party’s Climate Bill as published weakly imitates these legislative models. All the trappings of an effective bill are present (carbon budgets, climate councils) but a key ingredient is missing: accountability.
The Irish bill prefers to obfuscate responsibility and weaken legal responsibility by setting a deadline for “carbon neutrality” that is too late, by requiring that we simply “pursue” not “achieve” neutrality by this deadline, by failing to set interim reduction targets en route to neutrality, by failing to create legal duties to meet carbon budgets and to correct course if we do not, and by neglecting the concept of a just transition altogether.
Here’s a brief run-down of key weaknesses compared to the UK’s law. Firstly, no interim targets are contained in this bill to guide carbon budgets on a pathway to carbon neutrality by 2050. The UK act explicitly sets a 34 per cent decrease by 2020 compared to 1990 (a target the UK looks set to overachieve, its emissions having fallen by 41 per cent by last year). The devolved Scottish parliament moved this goal to 56 per cent. The Scottish act goes on to set out interim targets of a 75 per cent decrease in emissions by 2030, 90 per cent by 2040 and net-zero carbon by 2045.
Under the Greens’ proposed Climate Bill, the pressure is instead placed on the Climate Change Advisory Council (CCAC) – and loosely associated Climate Action Plans – to do the heavy lifting of proposing five-year carbon budgets. Without clear criteria or targets to guide its recommendations, the CCAC must perform its work in a legislative vacuum with no mechanisms binding the government of the day to its recommendations or indeed to the budgets which the government can ultimately choose whether to adopt or not.
Carbon budgets are welcome but this bill fails to set tangible legal consequences for failure to meet targets. Simultaneously, the bill is peppered with “get out of jail free” clauses (such as “in the opinion of government”). In the UK the buck clearly stops with the Secretary of State. If carbon budgets overrun, they must set out course correction plans. We have set up the classic Irish shell game of climate budgets being launched and welcomed before future ministers cite “real” considerations to quash undesired climate action. The only “consequence” for failure? A light tutting from a joint committee.
The CCAC is expected to fight back against this lack of accountability while embedded within the Environmental Protection Agency, stacked with ex-officio members from other public bodies and with no guarantee of adequate resources. In short, it is an institution without independence. Additional expertise and gender representation is welcome but does not replace substantive powers. Nor does this represent all intersections of society that require representation.
The carbon reduction of 7 per cent per annum “won” in programme-for-government negotiations is severely weakened without the force of law. This is despite a 7 per cent target not representing Ireland’s equitable contribution, and the plan is further undermined by assumptions of negative emissions that may very well prove undeliverable.
Net-zero by 2050 is also unambitious. Already Austria with a net-zero target of 2040, Finland (2035), Iceland (2040), Norway (2030 with offsets), Scotland and Sweden (2045, both enshrined in law) are leaving Ireland in the familiar role of laggard. Minimal references to public participation and the weak requirement to “have regard to” the undefined term “climate justice” augur poorly for a popular public-led Just Transition.
What puzzles me the most about the 2020 Climate Bill is not that international policy examples were only followed in a cosmetic sense (this frequently happens in the Irish policy sphere) but that a climate bill written under a Green Party minister has emerged weaker in several key aspects compared to the heads of the same bill published by an unsupervised Fine Gael minister, Richard Bruton. From the removal of the requirement to “achieve” the overall 2050 goal in favour of simply “pursuing” it and the removal of the ban on the sale of fossil-fuel vehicles by 2030 to obligations on local authorities now to develop policy that only has “regard to” long-term climate strategy rather than being “consistent with” it, the new 2020 bill has watered down key ambitions compared to a mere year ago.
It is clear weaknesses exist, but the question must be asked: how did they get there? After all, we Greens pride ourselves on our expertise in environmental policy. “Want Green, Vote Green” was our message during elections. To me, three things are at play: Climate Case Ireland, coalition and competence.
Earlier this year, Friends of the Irish Environment successfully argued in the Supreme Court for the 2017 National Mitigation Plan to be quashed for failing to set a credible roadmap to meet Ireland’s climate obligations under the 2015 Climate Act. This Climate Case Ireland win presented a unique opportunity for an amended act to invoke the spirit of urgent, transparent and scientifically sound climate action.
A similar case in the Netherlands (State of the Netherlands v Urgenda Foundation) forced the government to implement the most ambitious climate action plan in Europe, including shutting coal plants, reforming agriculture and €3 billion in green investment. By comparison, our Climate Bill seems designed from the ground up to reduce the possibility for future litigation instead of meeting our obligations.
As mentioned above, the new 2020 bill has reduced the duty to “pursue and achieve” obligations in the 2015 Act and in the 2019 Fine Gael bill to merely a duty to “pursue”. In fact, the section explicitly invoked by the Supreme Court in Climate Case Ireland is being replaced by a provision which, while similar, is also subtly and perhaps importantly different. The lack of interim targets and the proposal for “living document” annual action plans place future litigation in jeopardy – even in the scenario of complete state failure. With few accountability mechanisms in the bill, this legal diffidence is a direct threat to citizens challenging future governments.
In terms of coalition, the restrictions of “strong” government mean the ability to engage in good faith is reduced. The reality of power politics is an undermining of the very cross-party cooperation that made the previous Oireachtas Committee on Climate Action a success. Politically, Fine Gael’s interest in protecting their “green” flank has reduced with the Green Party safely enclosed in government. In practice, the Greens’ twin roles of honest broker within opposition and watchdog against Fine Gael have been weakened.
While coalition has left the party almost full control over this piece of legislation, what appeared to be a once-in-a-lifetime opportunity may actually, based on the bill as presented, have exposed a fundamental weakness: lack of competence.
Writing climate law to cover 30 years of climate effort is a difficult and onerous task. Recognising this, it was incumbent on the Green Party to come in well-briefed and prepared to ensure competing state and political priorities, such as preventing future litigation or creating unwarranted ministerial flexibility, did not conflict with the primary objective: reducing emissions. Minister Eamon Ryan has taken flak for having eight special advisors. Of more concern here is that of the full-time special advisors, not one has the requisite background in environmental law for such a task.
Similarly, the Green Party has minimal independent research and legislative resources. The 2020 Climate Bill was intended as the flagship legislation marking the first 100 days of Green government. It was therefore paramount for the minister responsible to be surrounded with experts acting as counterweight to any Fine Gael and civil service attempts to water down any legislation compelling the state to take this crisis seriously.
It was vital that our party leader and his advisors were ready and the details prepared to ensure publication of an effective bill that could succeed in this Dáil term and beyond to 2050. Based on the evidence of the legislation before me, this bill represents a largely symbolic improvement at best and is actively damaging at worst.
All is not lost. In the spirit of Minister Ryan’s latest pronouncement that “heeding your critics and listening to what they have to say is a really good and useful check to you”, I have a piece of advice for him. You have written to the Committee on Climate Action asking them to hurry the legislation through. I ask you to reconsider. Leave the legislators, NGOs and wider public to do their work in full. In fact, encourage them. Take this bill apart and use expertise and experience to re-centre it around the ambition that the climate crisis demands.
To ignore that opportunity and rush this bill as it is would in no uncertain terms represent a poor return for the “Green wave” and the hopes placed in our party by the public as well as for the entire environmental movement and future voters for our people and our planet.
“By your actions you should be known and this climate bill is virtue signalling with no substance behind it.” Wise words in 2018 from a Green Party leader worth revisiting.
Lorna Bogue is a Green Party councillor for Cork City South East