Oireachtas Joint and Select Committees
Wednesday, 21 October 2020
Joint Oireachtas Committee on Climate Action
General Scheme of the Climate Action and Low Carbon Development (Amendment) Bill 2020: Discussion (Resumed)
I welcome Professor John Sweeney of Maynooth University and an Intergovernmental Panel on Climate Change, IPCC, contributing member and Dr. Andrew Jackson of the Sutherland School of Law in University College Dublin. Our witnesses are appearing remotely from outside the Leinster House complex. They will be invited to make a brief opening statement which will be followed by a question and answer session. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I also wish to advise the witnesses giving evidence from a location outside the parliamentary precincts to note that the constitutional protections afforded to witnesses attending to give evidence before committees may not extend to them. No clear guidance can be given on whether or the extent to which evidence given is covered by absolute privilege of a statutory nature. If the witnesses are directed by the committee to cease giving evidence on a particular matter, they must respect that direction. I also wish to advise them that any submission or opening statements made to the committee will be published on its website after the meeting.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable. I remind members and witnesses to turn off their mobile phones or switch them to flight mode. They interfere with the sound system and make it difficult for the parliamentary reporters to report the meeting, while television and web streaming will be adversely effected.
We will go into private session for a moment while we fix some technical problems.
Professor John Sweeney:
I will begin by noting how important this Bill is and the need for effective action to tackle climate change. It is now quite clear that the world is warming at a faster rate than anticipated, by about 1oC, while the latest data show the landmass of Europe has warmed by between 1.7oC and 1.9oC. We are getting close to the point where it will become very difficult to comply with our Paris obligations unless we take really radical reductions in emissions.
Sometimes we think of climate change as a thing that is happening outside Ireland, but we know that Ireland is now 0.5oC warmer than it was in the 1960-1990 period. It is wetter and we are seeing quite a lot of extremes of weather and climate. I do not need to tell the committee of some of the consequences of flooding, for example, which were evident in Cork this morning. We saw the stormiest winter for 143 years, the wettest winter over most of Ireland since records began, and relatively unusual behaviour for Atlantic hurricanes, not going from east to west, but from west to east and maintaining hurricane status until getting very close to Ireland. It is not necessary to reiterate the problems of winter flooding. Climate science has advanced to the point where we can now attribute many extremes in terms of probability as a consequence of human action rather than something that might have happened naturally. The data show alarming increases in probability, such as for the French heatwave of 2019, of the order of ten to 100 times more probable. More recently, heatwaves in Eurasia this summer, where there were extreme temperatures right at the northern tip of Siberia, were about a thousand times more likely as a consequence of human action. It is important that this Bill tackles effective reductions.
I will make some recommendations on the Bill. As many members will know, I was the rapporteur on the 2015 Bill. I have watched with some dismay the language that was used there and which was subsequently proven ineffective being repeated in the amended version here. The first thing that must be tackled is to remove some of those "have regard tos" and "mays" and make the Bill something that achieves its purpose rather than something that is more designed to be defensive.
The State should achieve that. It is interesting to note that this morning the Northern Ireland Assembly received submission of a climate Bill which sets a target for decarbonisation of 2045. Dr. Jackson may go into that in more detail. We should not tie our policy completely to 2050. We should have the option of achieving that target earlier, as may happen at European level anyway.
It is important to have interim targets. I do not subscribe to the belief that they are not needed. Many Bills include interim targets. For example, the State is subject to interim targets for its existing 2020 obligations on an annual basis and has been exceeding those targets since 2017. The Bill should have a glide path with annual figures to indicate whether we are on the right path or trajectory. If we are not, then corrective action needs to be taken. It is very important to have a provision similar to that in the equivalent legislation in Scotland, in which annual values are provided. Interestingly, the Scottish environment minister was criticised because the 2018 reduction of 50% on its 1990 targets did not reflect the 54% which the annual value specified. It is a discipline which should be stressed.
On carbon budgets, there is a great deal of loose language. We must make carbon budgets consistent rather than having regard to the matters in section 3 (a) to (d) of the Bill. It is surprising that section 3, for example, does not mention Article 4 of the Paris Agreement. The long list from (a) to (y), which one might refer to as alphabet soup, does not refer to the Intergovernmental Panel on Climate Change, IPCC. If one wishes to have a Bill that is scientifically rigorous, the IPCC should be mentioned. I have an issue with the reference to "having regard to Government policy". Government policy is likely to fluctuate through the years. It is not clear to what the policy relates and whether it relates solely to climate or also to other considerations. That should be clarified. One can say with certainty that if it was solely relating to the programme for Government, we know the carbon budget for the next ten years will be approximately 429 million tonnes of CO2.. If that was the only criterion today, the issue then would be how to offload and segregate that into the two five-year periods. That will be a crucial issue in the coming months as we begin to decide that carbon budget. It may be that Government policy does not take into account what Ireland's fair share of the remaining carbon budget would be. There are other considerations. The more of this loose language there is in the Bill, the less likely one is to achieve the end goal.
I refer to carbon leakage. I do not know where that came from but it seems very unwise to include carbon leakage because it cuts both ways in terms of its legal definition. Some countries have ignored the environmental burden of production and exported their products to Ireland or are deemed to wish to so do. There are other countries that have stricter carbon emission reduction requirements than does Ireland. That may be the case, for example, in a situation where products being exported from Ireland will be deemed to be leakage from Ireland. I am thinking in particular of countries such as the Netherlands, where very strict reductions in emissions and its dairy herd are now being considered and production companies are seeking to establish new enterprises in countries such as Ireland. We must look very closely at that particular leakage phrase. I do not think it should be included in the Bill.
The issue of biogenic methane is a very complex one on which I may have to revert to the committee because it is not something that can be explained simply. The traditional and established way of measuring methane reflects its greater potency as a greenhouse gas. For example, in 20 years it will produce 86 times as much warming as one tonne of CO2. The bottom line is that there are slight differences between CO2 and methane in terms of their longevity in the atmosphere. The half life of methane is approximately ten years. It is still present in the atmosphere after that and much of it converts to CO2 thereafter. It is important to realise that the traditional way of measuring it, that is, the 100-year global warming potential, underestimates the potency of methane in shorter time periods. As a result, alternative methods of recognising those different lifetimes in the atmosphere, such as GWP*, have been suggested. It is important to emphasise that no matter what method one uses, it becomes clear that any increase in methane emissions will, for Ireland at least, very badly compromise our ability to comply with the Paris Agreement. In contrast, any significant and sustained reduction in methane will have a greater impact in helping us achieve our Paris Agreement targets than a comparable reduction in CO2. Methane is a critical gas which must be reduced. In the case of Ireland, its contribution to warming over the past few decades relative to that of CO2 has been enormous. All of this must be taken into account in the context that whatever way we wish to measure methane, the reporting requirement is simply established at United Nations Framework Convention on Climate Change, UNFCCC, level according to IPCC methodology, and that is the 100-year global warming potential criteria. When it comes to Ireland reporting, that is the only criteria that applies. Unless we can change the minds of 197 countries, that is the only way in which our greenhouse gas emissions will be reported in the years to come. Although it is open to policy makers to measure separate gases such as SF6 or methane and to have separate quantification of them, it is not open to them to start changing the reporting requirements at present.
I refer to the paragraphs of section 6 dealing with overshoot and undershoot. The section relates to circumstances where the carbon budget is not exceeded and the Minister may, effectively, bank those credits. I do not think one should be rewarded for achieving such a target. One should not be rewarded by being entitled to pollute more heavily in the next five-year budget, but that is another issue.
Professor John Sweeney:
I will sum up. I refer to the amnesia in section 6(d), in which 99% of an overshoot is seemingly forgotten. That ignores the obligations under the UK Act which has a similar phrase but requires countries to carry the burden.
On sectoral budgets, the maximum and minimum ranges of decarbonisation budgets are not specified. This is crucial, as is their being consistent with the overall carbon budget.
On the composition of the Climate Change Advisory Council, CCAC, it is proposed that it include civil servants whose obligations, I believe, may prevent them from contradicting Government policy, for example. The independence of the CCAC should be ensured. Semi-State individuals should serve in an advisory role rather than having 30% of the voting power as seems to be currently implied.
Finally, there is accountability. There is no accountability for anything going wrong here. There should be some sanction for failing to achieve the carbon budgets. That sanction, for example, could be departmental budgets being used to purchase annual emission allocations.
They are my main points and I will be happy to answer questions.
Mr. Andrew Jackson:
I am an assistant professor of environmental law at UCD and a practising solicitor, with qualifications in law and environmental science. I have published recently in the fields of climate law and biodiversity law, including a chapter on the history of Irish climate law that will appear in a forthcoming edited book on national climate Acts. My previous roles include working for the UK Government’s Department for Environment, Food and Rural Affairs, DEFRA, where I provided legal advice, drafted legislation and defended litigation. I have litigated cases for many years before the Irish, English and EU courts. Recently, I acted for Friends of the Irish Environment in Climate Case Ireland before the High Court and Supreme Court. The perspectives I offer on the Bill are, therefore, as an academic, a former drafter of legislation and a litigator.
Unfortunately, the Bill is very weak when compared to leading climate laws adopted elsewhere, and when compared to earlier draft laws prepared in this jurisdiction. That said, the Bill could easily be strengthened. First, interim targets should be included in the Bill to guide the creation of carbon budgets en route to net zero, consistent with limiting heating to 1.5°C. The Scottish Act is a useful exemplar here. A mechanism for modifying the net zero date and the interim targets should also be included, with reference to the need for "progression" and Ireland's "highest possible ambition", as per the Paris Agreement. There is, of course, a strong argument that 2050 is already too late for Ireland to reach net zero on the basis of equity.
Second, the Bill should include legal obligations requiring the Taoiseach or Minister to ensure that carbon budgets and targets are met, and requiring the Taoiseach or Minister to correct course and compensate if a carbon budget or target is not met. The Scottish, UK and New Zealand Acts provide useful precedents here, as does the Climate Change Bill produced in 2010 by an all-party predecessor joint committee. At that time, the Joint Committee on Climate Action and Energy Security proposed placing these legal duties on the Taoiseach. No such duties exist in the current Bill, and there is equally no obligation to ensure that climate action plans are consistent with adopted carbon budgets.
Third, the Bill requires the State to "pursue" but not "achieve" the 2050 climate objective, making the central objective of the Bill weaker than the objectives of the Climate Act 2015, the previous Government’s heads of Bill and the joint committee’s Bill of 2010. Also, the reference to an "environmentally sustainable economy" in the objective of the 2015 Act and the 2019 heads of Bill has been dropped and should be reinserted.
Fourth, "have regard to" is a weak legal obligation. The list of matters to which Ministers and the Government must currently "have regard to" in adopting plans, strategies, frameworks and carbon budgets could usefully be split, with the stronger requirement "must be consistent with" applying to certain matters. Regarding the principle of applying "must be consistent with" obligations to public bodies, see head 15 of the 2019 heads of Bill. Chief among the matters that public bodies should be required to act consistently with is the first item in section 3(3) of the Bill, that is, the overall objective of the UN framework convention and the temperature limits specified in the Paris Agreement.
Fifth, the public participation obligations in the Bill should be strengthened, and the principles of "climate justice" and "just transition" should be fully enshrined in the Bill. Climate justice remains undefined in the Bill and is undermined by the weak "have regard to" obligation that precedes it. The principle should be defined and made meaningful; for example, the Government could be required to report on how and the extent to which the principle has been taken into account in setting and reviewing the net-zero target date, interim targets, carbon budgets, plans and so forth. There is no reference in the Bill to the concept of a just transition, in contrast to Scotland's Act which sets out detailed "just transition principles" and requires the Scottish Government to explain the extent to which its climate plans take account of these principles and the sustainable development goals, SDGs.
Sixth, section 4(7) of the Bill should be amended or deleted, to ensure that the effect of the Supreme Court’s judgment in Climate Case Ireland is preserved.
Seventh, the Climate Change Advisory Council still has ex officiomembers, contrary to the recommendation of a joint committee in 2013. It is the subject of only a "best endeavours" obligation when it comes to gender equality and could do with additional expertise, including in the fields of law and just transition, and from the perspectives of youth and future generations.
Eighth, the Climate Change Advisory Council should be tasked with reporting, at least annually, on whether the current net-zero target date, the interim targets, the long-term strategy, the carbon budget programme and the climate action plan still represent Ireland’s "highest possible ambition". The Minister should be required to account at least annually to the joint committee on the same question, after receiving the advisory council’s findings and recommendations.
Finally, the Bill should be amended to ensure that actions to address climate breakdown and biodiversity loss are fully complementary. For example, the Bill could usefully promote, via the climate Act, nature-based solutions for mitigation and adaptation that enhance biodiversity.
While the Citizens’ Assembly recommended, with 97% support, that an independent body be resourced with functions to include pursuing the State in legal proceedings relating to climate change, the present Bill appears to have been crafted with a view to avoiding legal accountability. This is counterproductive. A weak governance framework will not see emissions fall, and falling emissions are the only thing likely to satisfy those who may otherwise turn to litigation. Further, litigation based on fundamental rights cannot be avoided by adopting a woolly climate law framework.
In conclusion, to stand a chance of limiting heating to 1.5°C, our emissions need to fall very deeply and very rapidly, starting immediately. We have just one shot at getting this legislation right. We know that robust framework climate laws enable effective action, and we know how such laws are designed.
I wish the joint committee every success in its work.
Thank you. I will now take questions from members in the order in which they raised their hands. I remind members to speak directly to the bell. If possible, we will have a second round of questions. There are five minutes for each member's questions and answers, which I will enforce strictly.
I will be quick with my questions so I can give the witnesses as much time as possible to respond. I agree with Dr. Jackson's point that Ministers should be required to appear before this committee annually. That is a good level of accountability which we should seek to introduce. I have two questions for him. What is the best way to ensure that the Bill is going to create a clear and explicit duty on the Government to adopt carbon budgets, which I presume would essentially be in line with the programme for Government? Second, he spoke about the language being very vague at certain points. What is the most effective way to put clear legal obligations on a Government, Ministers and relevant bodies in this Bill?
Does Professor Sweeney think that under this Bill as drafted it would be possible for the Government to say legally that it is only going to try to hit targets of 1%, 2% or 3% in one year and then massively try to backload the mitigation after 2030 or 2033? Could that happen under this legislation?
Mr. Andrew Jackson:
I will take the questions in turn. The Senator mentioned the programme for Government commitment to reduce emissions by 7% per annum and asked how carbon budgets could be made consistent with that policy aim. It is an interesting issue and it strikes at an issue at the heart of the Bill. In principle, the Bill suggests that the Climate Change Advisory Council will be responsible, independently, for proposing carbon budgets. However, the programme for Government states what the Government plans to do for the next ten years. The question I would put to the committee is: how do those two things fit together? We are asking the Climate Change Advisory Council to propose budgets independently, but it knows what the Government wants to do for the next ten years. As to how one can ensure legally that the budgets are consistent with a science-based reduction trajectory that will help to limit warming to 1.5°C, it is easy to insert strong language in the Bill to that effect, for example, "must be consistent with".
The second question was about putting duties on Ministers and public bodies.
My central idea here would be to include in section 15 a general obligation on all public bodies and organs of the State to exercise their functions compatibly with the objectives of the UN framework convention and the Paris Agreement. It could be modelled, for example, on section 3(1) of the European Convention on Human Rights Act 2003, which requires organs of the State to exercise their functions compatibly with the human rights enshrined in that convention. That would be a very powerful general obligation to impose, and there are other examples in Irish law, such as the context of the habitats directive, where it has also been done.
Professor John Sweeney:
The way the Bill is phrased currently, it would be an option for a Minister to backload a carbon budget. There may be very many reasons, apart from political ones, a Minister would seek to do this. It may well be, for example, that the State might feel the infrastructure necessary to achieve bigger reductions would take some time to come on stream. If that is done, to stay within the ten-year carbon budget, it would mean excessive reductions would be required in the next five years. In some cases that would be almost impossible to achieve without quite major dislocation to the economy. It would be very advisable for a Minister not to seek to divide the ten-year budget in the context of a very heavy loading down the road. It would be a very big mistake.
There is also the problem of the reporting lag, which the committee has not yet had a chance to consider. In 2020, we only have results for greenhouse gas emissions for 2018 and we therefore have approximately one year's lag in getting the necessary data. The Bill provides for the Minister, in setting new carbon budgets, to oscillate the carbon budget figures proposed between the Oireachtas, the Minister and the Government. It allows for a period of between four and six months. There is an issue in how we match the achievement of a carbon budget when we will not know whether it has been achieved for perhaps a year and a half after the carbon budget period.
It would be unwise, therefore, for Ministers to play with the figures to project a more lenient target in the first five-year budget than would otherwise be demanded by the ten-year period. This is an area that the Bill should tighten. It should be possible, for example, for the Environmental Protection Agency to issue a provisional fifth year emissions projection, which would be used in the formulation of the next carbon budget. This would be essential if we are to avoid the kind of position where we would have a five-year carbon budget that would only be decided two and half years into the carbon budget, for example. It comes back to the question of making a stab at the first five-year budget as opposed to the second one. We need seriously to consider how to avoid falling into that trap.
Having held the ministerial brief, I know Professor Sweeney has made a major contribution in this area. I agree with much of what he says and there is potential to strengthen this Bill.
Professor Sweeney favours putting annual targets into the Bill and cites the Scottish example. The approach in the Bill, as I understand it, is that two carbon budgets will be set and there shall be no facility for changing those. It creates a rigid constraint. On the other hand, the Scottish legislation allows Ministers, by regulation, to change those annual targets. It seems these are two different approaches, with one having annual targets but allowing Ministers to change them, with the other having a five-year budget but not allowing change other than in the event of scientific evidence changing. Is it necessarily true that the Scottish model is better than the other?
It strikes me that the easy part of this is writing down that we will hit this or that number. The hard part is changing the way communities work. Essentially, we have seen addiction to fossil fuels, but will changing that addiction by sanction, which seems to underline some of the views, be effective in ultimately getting homes, farms and other businesses to change?
Another aspect is litigation. I see that in New Zealand they have provided for litigation and put a limit on the process. One cannot seek remedy but one can seek a declaration. Is that the sort of litigation environment we should seek to create in a Bill of this nature?
Professor John Sweeney:
I appreciate that in the previous climate action plan, for example, sectoral budgets were indicated, which I welcome. It is one of the positive aspects of the current proposal that for the first time we will have those kinds of sectoral budgets.
The purpose of an annual target is to provide a glide path or indication as to whether we are on the right track. Currently, the Bill provides for the first investigation of that to occur in 2023. If we are going to monitor whether we are on the right track, we need to be much more sensitive than waiting until the end of a five-year budget, which may be immutable but which could be exceeded.
I mentioned sections that do not provide any sanction where an immutable five-year budget has been exceeded. Only 1% of the excess is allowed to be borrowed for remediation and it is not clear from where it will be borrowed, such as the second or third five-year budget.
Currently, there are approximately 60 million tonnes of CO2 being emitted per year and there may be a carbon budget of 200 million tonnes of CO2 over a five-year period. If we exceeded that with five years of 60 million tonnes of CO2 being emitted, the total would be 300 million tonnes of CO2, an excess of 100 million tonnes of CO2. As it stands, the Bill allows 1 million tonnes of CO2 from the total to be borrowed, leaving 99 million tonnes of CO2 that will be quietly forgotten about. There is no sanction in bringing that forward as a burden on the next carbon budget.
What is missing from the Bill is the ability to rectify a carbon budget that has been exceeded. It is simply not there. As I indicated, this is an amnesia clause that could wreck the entire purpose of the Bill in the event we exceed that five-year target. It is another reason that if there is some type of interim checking, we can see whether remedial action needs to be taken in advance of the ending of the five-year budget. Only then can we ensure we are back on track or not. This is another reason interim targets are so important.
On litigation and remediation, I am not interested in jailing or fining people unnecessarily or putting the Minister in the dock. I am interested in ensuring the State meets its obligations it has signed up to. We are not meeting them now in our 2020 targets.
With regard to changing communities-----
I thank both speakers for their presentations. As we have limited time, I will indicate a few issues on which I would appreciate comments in writing. I had hoped to ask about biodiversity, which is an area of Dr. Jackson's expertise, and with respect to Professor Sweeney, the implications for energy trade and how energy is dealt with. They might make comments in writing on those given I will speak specifically to the legislative detail.
Reference was made to the environmentally sustainable economy. I was interested in the comment on carbon leakage. It is quite an ambiguous and potentially misleading phrase. Would the reinclusion of phrases such as "the environmentally sustainable economy", which speaks to the economic but also the targets which had been in the 2015 Bill, be a better way of capturing economic issues and providing a reference to the question of non-territorial emissions? I am concerned about the issue of non-territorial emissions. A comment was made on how to ensure we do not have a disproportionate use, for example, of either offsetting on the one side or of effectively importing the damage done within the Bill, even where Departments might purchase allocations. I presume we do not want them to purchase all of those in an offsetting mechanism.
The issue of methane is very clear. It suggests it might be important to put that measurement technique or reporting mechanism, to which we are committed, in the Bill even if we may need to measure methane specifically in the next period of time. This comes back to the question of interim targets. I ask both witnesses to comment on how robust the Bill is in ensuring we make the major change we need in the next ten years with respect to all gases, including methane, to be able to achieve the 1.5oC target down the line.
Might interim targets be best phrased as five-year and ten-year interim minimum targets as we must allow space that the science might ask us to move further? Would that be linked to, for example, the EU 55% target? I know it will have to be stand-alone, but the EU 55% target has been discussed. Government policy was mentioned and that it can be vague and moveable. Would it be better in fulfilling that commitment to embed that 7% in the Bill? Would that be the most robust way to do that?
Mr. Andrew Jackson:
I might revert to Deputy Bruton's questions if I may because they were directed at Professor Sweeney but I have some thoughts on those too, so I may come back to the committee in writing on those.
I thank Senator Higgins for those questions. I might speak to the latter two with one comment on non-territorial emissions. It would be useful if, as the UK does now, we started reporting on the basis of consumption emissions as well as purely what is happening with our emissions in terms of their movements up or down and used consumption accounting and reported those emissions alongside. That is a very useful feature of the UK's reporting.
On the question of the robustness of the Bill in ensuring we will achieve reductions in the next ten years, my strong view is that the Bill is not robust at all in achieving that. I strongly suspect that if the Bill were passed it stands, we would be back here in ten years asking where it all went wrong, how it was possible that we made a second generation climate law that was weaker than first generation laws in other jurisdictions and that did not therefore result in the rapid and deep fall in emissions that were required. That is down to, among other things, the language used in the Bill.
This overlaps with a point Deputy Bruton made about modifying the targets. The Scottish Act provides for modification. I argued in my opening statement that we should include something similar. Essentially, the Scottish Act follows a one-way ratchet, so we have a progression of increased ambition, not reduced ambition. That is secured in Scotland by a reference to target-setting criteria, including what is the fair and safe Scottish budget, but also there is a limit on reducing ambition because modifying the net zero data and the interim targets can only be done essentially consistent with scientific advice and where the scientific advice states that is permissible and an okay thing to do and still will be consistent with avoiding dangerous anthropogenic interference with the climate system.
Professor John Sweeney:
I agree with almost everything said there. In terms of leakage and extraterritorial emissions, these should be handled actively in our negotiations on new trade treaties. We have not really encapsulated climate considerations fully in, for example, the Comprehensive Economic and Trade Agreement, CETA. We would have concerns about the energy charter in terms of how it handles climate considerations. Most importantly, we must recognise that the EU Green Deal specifically mentions border adjustments. That is a very useful phrase the Government should pursue with the climate Bill to ensure we do not have some of the problems to which the Senator referred. The indications are that it will not be pursued as actively as climate people would like, but that is something that should be addressed, although not necessarily in the Bill.
Regarding the sustainable economy, that is a very useful phrase to have. "Sustainable" is a word that is much misused, but it conveys a little better the concept than simply using the word "leakage".
Having interim methane targets would be very useful as a domestic guide but not as something we would be capable of reporting. Having internal minimum targets is useful, but we must have some form of enforcement or sanction to tackle those.
If I may refer to Deputy Bruton's comment on changing communities, communities are already changing. We have seen this in recent years. The pressure is coming from young people and the community. What they are looking for is leadership on this issue. That leadership is what this Bill should also be about, providing the way ahead to crystallise the ambitions and the objectives which the wider community is increasingly now expressing.
In terms of sanctions, we have to change community attitudes. Even when it comes to our current circumstance regarding how we tackle Covid, we have seen that we need a little carrot and a little stick. It may well be useful in this area as well to encourage change to take place.
I thank both expert speakers for giving of their time. I will keep my contribution short to give them time to respond. My first question is for Dr. Jackson. In his opening statement he referred to amending the Bill to ensure that climate action and biodiversity are fully complementary. The Bill as it stands refers to biodiversity, but it links it with ecosystem services. My concern is that the Government has taken a very utilitarian attitude towards biodiversity. We can see how forestry is being used as a carbon sink but at the sacrifice of Natura. Has Dr. Jackson thoughts on how we could strengthen that in the Bill?
The importance of interim targets was mentioned by previous speakers. As the Bill is laid out, without those interim targets and the framing of the objective where they sit, we know that it is possible for a Minister to backload carbon emissions. I would like the witnesses' thoughts on how, in the absence of those interim targets and even if there is not an intention to backload emissions, there is the duty to get back on track if they do not meet their targets, even if they are trying to. How effective does having interim targets allow for the planning of budgets and that type of trajectory?
I will make brief reference to biogenic methane. A parliamentary question was submitted concerning the reference in the Bill to the IPCC report from 2018. I ask both speakers to revert, in writing to the committee, regarding that response from the Minister.
Mr. Andrew Jackson:
Regarding the issue of biodiversity, there are positive and negative aspects to this question. On the positive side, how do we promote nature-based solutions that enhance biodiversity? Then on the negative side of things, how do we prevent mitigation and adaptation solutions damaging biodiversity? The second aspect is, to some extent, addressed by instruments outside the framework of the climate legislation, such as our implementation of the EU habitats and birds directives, the Wildlife Acts etc.
It would be possible, for example, to add biodiversity to the list of matters to which regard must be had in the context of making plans. As I argued in my opening statement, however, "have regard to" is a very weak obligation and I do not think that does the job. Looking at international examples, the Scottish legislation requires the Government to have regard to biodiversity, or to take account of biodiversity, in considering revising the targets contained in that Act. That is one aspect. It also requires the Government to explain the account it has taken of the SDGs when making plans. The SDGs, of course, would bring in various biodiversity relevant goals.
My central idea here, however, to strengthen the Bill regarding biodiversity and to include something meaningful would be to look at section 15 and the general duties imposed upon public bodies. What we really want in respect of positive aspects in this context is to encourage, promote and give precedence to nature-based solutions that enhance biodiversity. Enhancing biodiversity is key, because as the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, IPBES, the biodiversity equivalent of the IPCC, has commented, not all so-called nature-based solutions enhance biodiversity, and some will even damage biodiversity.
In section 15, therefore, we could usefully look at imposing a general duty in the form, for example, along the lines "that public bodies must exercise their functions compatibly with a goal protecting, conserving and enhancing biodiversity, including by way of promoting nature-based solutions to mitigation and adaptation that enhance biodiversity". We could of course look at the specific language to be used, but that would be another powerful general obligation that would require public bodies to think about this every time they exercise their functions.
Professor John Sweeney:
There is not much I can add. Climate change and biodiversity are, of course, inextricably linked. Given the long list of considerations in that section, one might have thought that, for example, the phrase "the social and economic importance of biodiversity" might have been added, or perhaps "the social and economic importance of tourism" which is also strongly linked to biodiversity, agriculture and climate.
Those are aspects on which I again agree with the previous comments. We do not need to go into a long catalogue of things, because what we need to see is that the Government, or the Minister at the time, is considering the critical aspect of climate change in this regard and also taking into consideration any aspect which might adversely impact on biodiversity. For most cases, however, tackling climate issues will mean doing well on biodiversity as well. There may be the odd instance where there are contradictory processes at work, but they are few and far between.
I thank Senator Boylan for her comments on biogenic methane. It is not mentioned at all in the 2018 IPCC report to which she referred. I do not even like the term "biogenic methane" because-----
I thank the witnesses for appearing today. It is important to state that there is a big difference between when a Bill comes into a committee and when it goes out. I thank the witnesses for their expertise. We are not going to be in government forever, so we want to achieve the most robust Bill that we can because it will be future Governments that will be held to account by it.
On section 3(3), and the witnesses have mentioned this, as have previous witnesses, that language needs to be strengthened. We all recognise that point, and that has knock-on impacts for the rest of the Bill. Regarding the carbon budget and definitions sections, there are various ways to proceed with them. The phrase "one or more greenhouse gases" is contained in the Bill. I ask the witnesses to comment on how to strengthen that carbon budget section. I also ask Professor Sweeney to mention black carbon and whether he believes that could be brought into the Bill. Reference is made to a nitrogen balance sheet in the Scottish legislation, for instance, and I wonder if we could look at something like that.
Turning to climate justice, it is not very clear what that is in the section on definitions. The Scottish legislation refers to the concept, and uses the phrase "support the people who are most affected by climate change but who have done the least to cause it and are the least equipped to adapt to its effects". That is not the Mary Robinson phrase. Do the witnesses think that phrase is adequate and takes into consideration the intergenerational impacts of climate justice? I could say much more, including that there is no reference to a just transition in the Bill and that we need such an inclusion. I ask the witnesses to comment on specific phraseology in that regard.
Professor John Sweeney:
I thank Senator O'Reilly. She has touched on many issues which I can comment upon, and Dr. Jackson might elaborate on them further.
As I mentioned previously, it is open to the State to measure whatever gases it likes and however it wants to do that. Ultimately, however, issues such as black carbon and sulphur hexafluoride, for example, and those kinds of other complicating gases, will be reported according to the IPCC methodology, no matter what we do in the State now. We cannot get around that.
I agree completely regarding the issue of nitrogen balance. It is interesting that the Bill in Northern Ireland, which was submitted this morning, makes a great deal out of the importance of nitrogen in this area. We do not seem to have grasped that fact in this Bill. In many ways, how much nitrogen we import and put on our lands is the key to how well we will cope with methane emissions and other greenhouse gas emissions emanating from land use. The Senator is quite correct in emphasising that aspect.
Climate justice is one of these things which is difficult to define, but I think the State has certainly not been particularly generous towards the Green Climate Fund, for example, in the last decade. There have been modest increases, but we are still an order of magnitude less in respect of our contributions to that fund compared with some of the more generous countries, some of which have much lower GDP per capitathan us. We have international obligations, therefore, with which we could achieve better results and achieve much more in the context of contributions to climate justice as well. This issue comes back to the fair share of the remaining carbon budget that Ireland Inc. should claim in the future so as to allow some of the poorer countries of the world to reach a level of development acceptable to them. I will revert to the committee on a just transition.
Mr. Andrew Jackson:
I have some brief remarks regarding climate justice. Essentially, the Bill preserves the position from the 2015 Act regarding climate justice. It is an undefined principle to which regard must be had. I can illustrate how weak that phase is with reference to the proceedings in the case taken by Climate Case Ireland.
The entire defence was to point to a single reference to the words "common but differentiated responsibilities" in the 2017 plan and to say that although emissions were allowed to continue to rise, reference to those words was enough to have regard to climate justice. I would stress that if we want to - and we must - progress beyond that position, we really must define climate justice and make obligations relating to it meaningful in the Bill. One way to do that, beyond defining climate justice and imposing obligations around it, would be to put the concept from Article 4 of the Paris Agreement of progression beyond previous ambition and the highest possible ambition, into the heart of the Bill. We could, for example, have a modification possibility so that we could adjust the net zero date and the interim targets with reference to the need to progress beyond the previous position and to strive for the highest possible ambition. That would be a really powerful way of putting climate justice into the Act beyond simply defining the principle and strengthening the obligations around it.
I thank the witnesses for their presentations. I find it very interesting that a lot of the issues they have raised have been raised by other experts too, which goes to show the importance of significant pre-legislative scrutiny of the Bill. There are some obvious gaps in the legislation as it stands. I was going to raise many of the issues raised by Senator Boylan regarding nature-based solutions and how we ensure the implementation of such solutions do not have adverse biodiversity impacts. How do we get that balance right? We can plant a whole stand of trees or even a forest but if it is on the wrong site, it will have negative biodiversity impacts. It may provide a carbon storage facility but it will have biodiversity impacts. Are there any good international examples of climate legislation that has managed to get that balance right?
Professor Sweeney also mentioned public officials and the voting on the council and I agree that it is a problem. I also think there is an issue with regard to achieving gender balance on the council. If there are three officials who are senior civil servants they will more than likely be male and that will impact on the council's ability to achieve gender balance, which is something of which we should be conscious.
In terms of looking at international examples, if we were to rank this Bill as it stands against countries like the UK, Scotland or New Zealand, where would it stand? If we strengthen its language, as has been recommended by the witnesses, will that bring it up to the standard of the aforementioned international examples?
Professor John Sweeney:
I thank Deputy Whitmore for her very constructive comments. In terms of nature-based solutions, we have to be very cautious about how we achieve them. We must not see the apparently simple solution of planting trees as a way out of our problems because we know that we are probably going to be cutting down more trees than planting them for the next decade or so which means our sequestration is quite limited. In addition, when one plants a new forest, it may take a number of years before the disturbance of the soil caused by planting and the respiration and CO² losses that have occurred are made up by sequestration. We must have a very careful and cautious accounting system in place. Equally, we must also ensure that we have, for example, afforestation that is going to achieve sequestration and that is not often the case if we cut down and burn a forest or burn the wood from a forest before it reaches a reasonable level of maturity. We are talking about carbon dioxide which lasts for 100 years in the atmosphere. If we are going to sequester, we need to ensure that the products that we produce have a longevity which actually balances the warming effect the gas achieves over that very long period. Therefore, we must be very cautious. We are going to have to look very closely at international accounting standards from the IPCC in order to ensure that we do not go down the road of maladaptation as a result of malsequestration.
In terms of voting on the council, I have the highest regard for the three institutions that are mentioned in the Bill as being on the Climate Change Advisory Council. However, I feel that their role should be advisory rather than as an integral part of the council with full voting rights. This is especially important as the council has a membership of 11 or 12 people so it represents a considerable block which could mitigate against the views of the nine independent members on the council. I would agree with Deputy Whitmore's point about gender balance. At the moment two of the director generals referred to out of the three are male and I would hope that the council would be better balanced from both a gender and a scientific perspective. We have seen some of the imbalances that have occurred in the current council. They are all excellent people but they tend to be much more economically inclined rather than having a strong scientific background. It is the desire of this Bill that this should be rebalanced.
Finally, in terms of the ranking of the Bill, at the moment it would be in the relegation zone of the league table but if we get this Bill right it would place Ireland among the leaders in terms of climate change litigation. That is why achieving that is such a crucial job. As it stands, it is not good but it has the potential to be very effective legislation if the modifications that have been suggested are incorporated.
Mr. Andrew Jackson:
I will start with the question on ranking, where the Bill stands and how we can improve it and then deal briefly with forestry. I agree that we are in the relegation zone here. We start from a low base because the 2015 Act has been described in the academic literature as "symbolic" legislation and the proof is in our emissions. Our emissions have continued to rise and we are going to be about 10% above the 1990 level by the end of this year. One can contrast that with countries that have strong framework laws like the UK which has reduced its emissions by about 40% over the same period and Scotland which has achieved a 50% reduction over the same period.
I do not get any sense of emergency from this Bill. The Dáil has declared a climate and biodiversity emergency and we can really strengthen this Bill if we give instructions to drafting lawyers to emulate international best practice to produce a Bill that reflects the emergency nature of the situation that we are in. I mentioned in my opening statement the idea of getting the advisory council to regularly review and comment on whether what we are doing represents our highest possible ambition. In the Netherlands, they are looking at the same idea but while I suggest that it should be done at least annually, in the Netherlands there are discussions around monthly reporting and feedback in response to the question of whether what the Netherlands is doing is its highest possible ambition. That is being debated in the Netherlands at the moment and that is appropriate in the context of an emergency.
The forestry question is a really interesting and good one. In terms of how to deal with potentially negative impacts on or damage to biodiversity as a result of mitigation and adaptation, I am not sure we find a great example of that within a framework climate law. Certainly in the European context those negative impacts are often dealt with by EU legislation related to biodiversity that aims to require assessment of the impact of plans and projects on biodiversity and so on.
We must consider what can be achieved in this Act and what can be achieved outside of it. I certainly see one gap. EU Directive No. 92/43/EEC, the habitats directive, and EU Directive No. 2009/147/EC, the birds directive, require thought to be given to any damage a plan or project might cause to a protected area. EU-protected areas-----
I thank the witnesses for their presentations. Can the Chairman clarify that answers to questions will be circulated to all the committee members, even if they are addressed to specific Deputies or Senators?
Both witnesses referred in their submissions to the words "have regard to". They both suggested that "must be consistent with" would be stronger language. There are 25 items in total which the Government must be consistent with or have regard to, whichever language ends up being adopted. I hope it is the stronger formulation. This effectively makes them all equal. Could they cancel each other out? If there is no pecking order attached to the need to "have regard to" various items, does this essentially mean we may as well have complete disregard for the actions that are needed? I would like to ask Professor Sweeney what concerns he thinks we should be determined to have regard to. He mentioned the IPCC report. I would have thought the Bill should contain strong language requiring the Government to have regard to the levels of carbon in the atmosphere, which is currently rated at 350 parts per million. Should that be included in the Bill? Moreover, is there a role anywhere in this legislation for concrete measures concerning the importation of liquid natural gas, LNG, data centres, fossil fuel infrastructure or the role of the State in harvesting renewable energies?
The fourth observation in Professor Sweeney's submission concerns carbon leakage and states that "unilateral action by Ireland is irrelevant in this context since emissions are only counted at national level". He also refers to trade law and border adjustments at EU level. Does that mean that if we export live cattle or processed meat products and do not count the associated emissions, they are counted at some other level and put back on our shoulders?
Professor Sweeney also noted that firms from countries with stricter climate laws than Ireland's are seeking to locate here, where environmental obligations are less onerous. Would he care to say exactly which countries or companies he is referring to?
Professor John Sweeney:
I thank the Deputy. There are a few key issues that we should have regard to. They relate to the science and our international obligations. I would whittle them down to two, namely, requirements under the UNFCCC, and the annual IPCC assessment reports. They are the two gold standards that affect us. We could almost eliminate the rest as serious considerations, although I would obviously expect the Bill to make some reference to climate justice, just transition etc. as well.
Regarding concrete actions, the Bill could certainly make a statement on the necessity not to build new infrastructure or engage in other activities which might work against the Bill's end goal of carbon neutrality. That would certainly strengthen the Bill considerably and address some of the issues the Deputy has raised. It might give the Government some grounds for acting wisely in this way.
Regarding carbon leakage, we only measure emissions which take place on the island of Ireland. In the case of live cattle, only the emissions which take place on the island of Ireland are measured. I do not believe we measure the emissions of cattle in lairage or once they leave the island. They are certainly not measured on board any cattle transporters because shipping is not yet subject to the Paris Agreement's quota requirements.
There are countries with stricter climate laws. I was particularly thinking of the Netherlands, where as a result of litigation the Government has had to undertake quite serious reductions of greenhouse gas emissions, almost on an emergency basis. This has led to changes in agriculture being imposed there. Cheese manufacturers, for example, have been unable to expand in the Netherlands and have sought other countries in which to build cheese factories. If a firm is looking for a country with a ready supply of milk on which its environmental burden can be imposed without the same legislative requirements, I am afraid Ireland comes to mind. Leakage cuts both ways.
I thank our two guest speakers. My first question is directed at Dr. Andrew Jackson. He mentioned his concern about the CCAC having ex officiomembers, which is contrary to the recommendations made by the Joint Committee on the Environment, Culture and the Gaeltacht in 2013. Is this the practice followed in other jurisdictions? What are the potential downsides of their presence on the CCAC? I am thinking about voting mechanisms. Should those members have the same voting weight as independent members?
Carbon leakage has been referred to a few times. Professor Sweeney expressed a concern in that regard, and mentioned countries with stricter climate laws than our own. If our legislation is seen as lax, could Ireland see a growth in data centres, which we know are very energy-intensive and water-intensive? We have seen that already. Is there any way we could address that in this Bill?
Mr. Andrew Jackson:
It is fair to say that it is anomalous for an independent expert advisory body such as the CCAC to have ex officiomembers. The 2013 joint committee report which I mentioned made recommendations for the legislation that became the Climate Action and Low Carbon Development Act 2015. The joint committee was reporting on the heads of the Bill and recommending changes. For the sake of independence the joint committee recommended that the CCAC should have no ex officiomembers.
The question of voting is an interesting one. The Bill proposes a new voting mechanism whereby all questions would be decided by way of majority vote, with the chair having a casting vote. I would absolutely agree that if there are going to be ex officiomembers, the question of voting rights should be considered. Perhaps those ex officio members should not have the same voting rights as other members.
Professor John Sweeney:
I thank Deputy Cronin. The prime attraction of Ireland as a site for data centres is the relative equability of our climate, which means that there are considerable savings to be made on the air conditioning and cooling costs such centres would incur in other countries. This matter might be better dealt with through planning laws.
It may well be, for example, that a requirement for self-generation of energy would be placed as a burden on such operations but certainly they should be subject to environmental impact assessment in terms of the available energy supplies, what it means for strengthening the grid and what it means in terms of a burden placed on society for which they otherwise are not paying the full price. That is best dealt with in the climate Bill where our focus is primarily on emission reductions. I take the Deputy's point that there are interconnections, to pardon the pun, of which we should take cognisance.
Professor John Sweeney:
I would refer the Deputy to my previous answer. If the ex officiomembers are to be present - there is a case for providing information to the council which is very strong and we must recognise that - I do not believe they should have voting rights as of right. Ultimately, they are paid by the public purse. They are also individuals who are loath, in some cases, to criticise Government policy and therefore would be inhibited from perhaps adopting the same kind of approach that a more independent-minded advisory council would like to adopt in certain circumstances. For those reasons, if they are to be on the council they should not be voting.
To underline and stress what we are seeking to do here, I advise that I come from west Cork where the most beautiful beach we have is Inchydoney beach. It has a wonderful dune system, one of best on the south coast. In the past two to three years we have seen it almost completely disappear. It has eroded more in that short period than it has over the course of my lifetime. Any time there is a southerly wind and high tide the erosion worsens. That is a visual representation of climate change happening before our eyes. Also, any time there is a southerly wind and high tide, our towns are exposed to flooding. We saw what happened in Cork city and Bantry town in my constituency of west Cork has been subject severe flooding twice in the past two months, events we were told would only happen once in a lifetime. In stressing the importance of what we are trying to do here and the Bill we are introducing, we need to start fighting back. Everyone in this room knows that very well.
The witnesses we have had before the committee to speak on the Bill have repeatedly referred to the language and the need to strengthen it. We need to address that. There is no need for the witnesses to comment further on that aspect.
I would like Professor Sweeney to comment on sanctions and the fact there is a lack of them. He mentioned in his opening statement how sanctions might work and he referenced departmental budgets. I do not fully understand what he was getting at. Will he elaborate on what he means by that type of sanction?
I had a question for Dr. Jackson on the biodiversity aspect but that has been adequately answered in terms of how it can be incorporated in the Bill. I stress that we should incorporate something along the lines of what Dr. Jackson is suggesting. Professor Sweeney might answer that question. I thank both witnesses for their presentations.
Professor John Sweeney:
As someone at the coalface of climate change, the Deputy is very much aware of the importance of the topic we are dealing with today. Ongoing sea level change, which we now know will last until the 23rd century, will threaten many of those coastal communities and habitats. The more we can do about it in the short and medium term the better.
What I was referring to in terms of sanctions was that the Bill has no real accountability. Nothing in the Bill provides that when the carbon budget is exceeded, the Minister or the Government will have to do remedial action or will bear any responsibility. Ministers, on average, may be in office for two to three years. Governments may be in office for four or five years but this is a long-term issue where we need some guidance in terms of accountability to be built into the Bill. I suggested it might be worth considering a provision that if a Department exceeds its sectoral budget, it will be forced to suffer some financial penalty in terms of its budgetary expenditure and that might be the necessity to buy carbon quota. It is only one of many suggestions. It could be that the Minister for Finance would penalise it by the same amount relative to its ongoing budget. We need some accountability to be built into the Bill. In the case of a carbon budget being exceeded, there is no real accountability to take the next carbon budget and reduce it by a corresponding amount. There is no accountability on the part of a Minister who may only be in office for a few months to take the hard decisions necessary to ensure we do not go further into the red in the next five years. That is important. I am not being drastic about it but there must be an incentive for Departments. As we know, Departments can be mini empires on their own and it can be hard to bang heads together between different Departments, which is why I have always argued the Department of the Taoiseach should have a role in changing that. We need to have something to make accountability important in this Bill.
Mr. Andrew Jackson:
Briefly, I recommend going back to the joint committee's heads of the Bill of 2009 and full text of the Bill of 2010. Those documents are well worth considering. The 2009 heads of Bill examined the idea of financial penalties and incentives, and proposed financial penalties for public bodies and also for private sector operators that did not achieve targets. By the time the full text of the Bill came out in 2010, there had been a movement away from the idea of financial penalties towards incentives. That is something that is worth considering. It is a type of carrot-and-stick approach. There could be a budget as an incentive for Departments to achieve their targets and if they achieve their targets they could get an additional budget. That would be an alternative way of approaching it rather than a deduction by way of a penalty from an existing budget.
Thank you, Dr. Jackson. Everyone who indicated has spoken. We will now have a second round of questions and we will group them together and then revert to the witnesses. If members raise their hands to indicate I will take questions from three members, namely Senators Boylan and Higgins and Deputy Devlin.
I have a specific question for Dr. Jackson on the long-term strategy. Will he share his thoughts on how problematic it is that there is no clarity on when we are likely to get such a strategy? As the new section 47 is not binding on any Minister, there is no duty to ensure it is delivered. Who is accountable in that respect? What is Dr. Jackson's view in the context of the Bill on the ability of citizens and non-governmental organisations to act to ensure Governments deliver on their targets?
I noticed that there were a few comments on Article 4 of the Paris Agreement and the Intergovernmental Panel on Climate Change. The witnesses suggested that we be consistent with the language used for the existing commitments. Perhaps they might mention what needs to be expanded in terms of the Paris Agreement and the United Nations Framework Convention on Climate Change, UNFCCC, because of the narrow grouping.
As I am conscious of the time perhaps we could have a response to the following in writing. Deputy Bríd Smith made the point that the same language should not be used for everything and, therefore, it would be useful if the speakers could comment. Some of the phrases used are, "the Bill should be consistent with". Are there other phrases for some things that the Bill should be informed by? For some things the phrase "have regard to" might be the appropriate phrase. Another crucial phrase is "the Bill should not be in contradiction to". I would appreciate language suggestions for the idea that the national infrastructure "should not be in contradiction to". I ask the witnesses to suggest, in their written response, the language to use in the Bill and where. Perhaps section 3 should be divided into a couple of different sections with one dealing with the hard target piece and another with the interim 2030 targets, if they were to be included. Another section might deal with the sectoral targets or other areas. I think there needs to be a differentiation in the language. Also, which considerations belong where, which are about the setting of the targets or percentages and which might be around the sectoral plans.
The justiciability is important. The carryover of the amnesia clause comes back to the idea of sanctions and the idea of that 99% disappearing. I am concerned about the other thing the section whereby, automatically, where one achieved one's target that one would get extra to carry forward. That clause needs to use the word "may", as mentioned by the witnesses.
Lastly, I ask the witnesses to comment further on the sustainable development goals, SDGs, even in writing as it would be very useful. I am speaking in terms of how their indicators might be useful in making the Bill more robust.
As I have not spoken before, I shall start with Professor Sweeney who referred to the UK Act in his opening statement. I ask him to elaborate on the big differences between what is proposed in this Bill and what the UK has adopted.
The professor referred to language in his opening remarks and one of his observations recommended the use of the sentence, "The State shall achieve the transition to a climate resilient and climate neutral economy by the end of the year 2050". I understand the reason for his recommendation as it would bind future Governments to decisions. What happens when targets are met and achieved?
Dr. Jackson referred to the Climate Change Advisory Council. Who does he suggest should make up the CCAC?
Professor John Sweeney:
We have already touched on some of the issues raised by Senator Boylan. The long-term strategy is also a requirement of the EU at the moment. We had to submit a long-term climate strategy, in theory, by the end of 2018, and we managed it in early 2019. I think that will be tightened up over time but we should at least pay some comment in the Bill to the fact that we have a long-term strategy of decarbonisation.
It is important for us to address what we mean by carbon neutrality and how to achieve same. I do not want us to achieve it in the last five years. I want us to be on a trajectory that gives confidence in the next 30 years that we are on that pathway. So, a long-term strategy would be useful.
A Bill should be justiciable. Citizens have a right to hold the Government to account if it is not achieving what the electorate wished it to achieve in establishing this Bill, for example.
In response to Senator Higgins, Article 4 of the Paris Agreement would be a much more powerful inclusion than Article 2. As she mentioned, language is vital. As we discussed this morning, the phrase "not in contradiction to" would be very useful but I shall leave commentary to my legal friend who is probably much better at explaining that than me.
In terms of the question on underachievement, that is probably the only place in the Bill where the word "may" might be valuable, where the Minister should have discretion to not carry over the benefits of underachievement to the next carbon budget. Indeed, that is a fairly unlikely situation to happen given the way the international trend is towards getting even more tight carbon budgets as time goes on.
Deputy Devlin asked for the differences with the UK Act. The key difference is the obligation to correct or carry overshoots into the next carbon budget and plan for the carbon budget on that basis. Also, the other key aspect is that the UK Climate Change Committee has a very powerful role in influencing infrastructural developments, which was mentioned by Senator Higgins. We must climate change proof many aspects of Irish society and this Bill should give the power to do that in a way that has happened in other jurisdictions.
For achieved targets, we pat ourselves on the back certainly, as we have said. We also recognise that the next generation will have to face difficult times and we should not simply bank the benefits of achieved targets. We have dealt with the Climate Change Advisory Council make up quite thoroughly at this point. I would be happy to revert on anything that I have missed out on in any of my replies.
Mr. Andrew Jackson:
On the question of a long-term strategy, as members will know the Supreme Court quashed the 2017 national mitigation plan which the court said had to have a horizon to 2050. We are in a vacuum period now where we have no plan with that horizon. There is a need for a new mitigation plan and-or long-term strategy. How long is it going to take to pass this legislation and have the concept of a long-term strategy? Clearly, a legal vacuum exists. There has to be a plan, under the 2015 Act, and there is not one at the moment.
As I said in my opening statement, I am concerned about section 4(7). Section 4(6) of the Act replicates the language on the basis of which Friends of the Irish Environment was successful in the Supreme Court. One needs to specify the manner in which it is proposed to achieve the 2050 objective. That is then supplemented by section 4(7) of the Bill, of which I have serious concerns about its impact. Could it be said, if a long-term strategy was challenged relying on the Supreme Court's judgment, that the law has moved on? We have since legislated and now we also have section 4(7) that states, "The national long term climate action strategy may include the following." So, provided that I have made a strategy that includes those three things then that is legally compliant. In other words, this layer is on top of the Supreme Court's judgment. I suggest that section 4(7) is deleted or amended to be without prejudice to the obligation in section 4(6).
There is an interesting question on the relationship between the Bill's long-term strategy and the EU law's long-term strategy. Section 4(8) states, in preparing the one under the Bill, the Government must "have regard to" the one under EU law, which has an annexe that sets out a very detailed range of things that need to be included. Why does section 4(7) have a different and less comprehensive list? We must be careful to preserve the import and effect of the Supreme Court's judgment.
Senator Higgins asked about language.
I absolutely think there is a need to differentiate and not have everything under this weak "have regard to" provision. There was a debate on the 2015 Act at the time on whether this should happen and there was an argument that "have regard to" should be strengthened to "comply with". The argument against this was there might be mutually contradictory provisions and people could not necessarily comply with all of them. That change was only narrowly defeated in the Seanad in a 14 to 12 vote. This time around, if we have a lengthy list of things, it might be interesting to look at it to differentiate and pick out, as the Senator said, those where the obligation ought to be that we act consistently with the provisions. Interestingly, the heads of the 2019 Fine Gael Bill adopted the principle of public bodies being consistent with obligations in the context of local authority plans, whereby the local authorities were required to act consistently with matters included in quite a long list in section 4(9) of the heads of the Bill. The principle is there. It is another thing that has been weakened between the heads of the 2019 Bill and this Bill. Now the obligation on local authorities is just to take account of the matters and not act consistently with them.
On the question of the Climate Change Advisory Council, my suggestion is to broaden the areas of expertise. I know Dr. Áine Ryall also made this point last week, with regard to having legal expertise on it. This is very important because this area is underpinned by the UN framework convention, the Paris Agreement and rights under the European Convention on Human Rights. It would be very important to have legal expertise. I also suggest that expertise in the broad field of just transition would be very important, as would representation for youth and future generations. Committee members might ask how future generations can be represented in an organisation such as the Climate Change Advisory Council. Several countries have created an institution called the ombudsperson for future generations, whose specific role it is to be the voice for future generations. Of course, all being well, the population of future generations of Ireland will be much larger than the population today and those future generations ought to have a voice in the room.
I thank Dr. Jackson. As no one else is indicating, I will ask a question. There has been considerable discussion on the make up of the Climate Change Advisory Council. Do Professor Sweeney or Dr. Jackson have recommendations on who the ex officiomembers should be, if not the three outlined in the draft?
Professor John Sweeney:
I concur. We need the advice and expertise of a wide range of bodies, and public servants in particular, but it should be an independent body if it is to carry the clout and the kudos that it would get from advising the Minister in an objective independent manner. It should be composed, as such, of independent people with the legal, scientific and economic expertise we have already spoken about, taking advice from a wide range of bodies such as Teagasc, the Economic and Social Research Institute, ESRI, the National Economic and Social Council, NESC, Met Éireann and the OPW. Many of these bodies have very valuable advice to give on this topic and I would encourage them to be in contact and communication with the CCAC on a very regular basis but not necessarily influencing its outcomes.
I want to follow up on the Chairman's question. We have spoken a lot about the make-up of the climate advisory commission but I am concerned the Bill does not seem to say it should have a breadth of expertise. There are a number of options it might choose from but there are certain areas from which we need to ensure there are people present with expertise.
Might it potentially have a wider function in terms of sectoral plans and not simply provide advice to the Minister? We do not have firm minimum interim targets in the Bill but, as I understand it, the witnesses have suggested there might need to be minimum interim targets. Perhaps then the climate advisory group might have a useful role in terms of how the target is achieved because there would be a gathering of expertise there.
Could we cover the nature-based solutions? The witnesses did not have an opportunity to finish what they were saying earlier. To move it on a little, we have not been particularly good or strong in protecting our environment and biodiversity to date. We will now be relying on this to protect it. Is there also a need to strengthen these? If we cannot do it within the climate framework because there is only a reference to nature-based solutions and having regard to biodiversity impacts, what else do we need to do to make sure the jigsaw of policies and legislation can actually give strength to what we need to achieve?
I am still a little confused as to how the interim targets will work with the climate budgets. They seem to be two different things. Perhaps the witnesses will give us a note on this, unless they can go into it in more detail. I know they have explained it but different Acts take different approaches, with some interim targets and some budgets. How would the two work together if they were to be both included in the Bill? It is not clear from either of the answers that I can see and perhaps a note would make it clearer.
Professor John Sweeney:
In response to Senator Higgins, the climate change advisory committee has an important role to play. At present, it has no role to play in the setting of sectoral budgets, for example. It is all done by the Minister. It might be considered obligatory for the Minister to consult with the Climate Change Advisory Council and ascertain whether the sectoral budgets being proposed are consistent with the overall national carbon budget. This would also lead into the issue of interim targets. The role of the CCAC could well be to look at the annual progress towards achieving carbon budgets and to make a statement on it, which would have to be taken seriously by the Minister and Government of the day. It would be a very powerful thing. The original model for the CCAC was supposed to be the Fiscal Advisory Council and that is a model we still could impose upon the Bill in terms of the CCAC. It is a question of whether we are on track.
Many public bodies have annual values. They have a glide path to achieve, for example, in energy efficiency. I do not think it would be incompatible to have in this area annual targets and glide paths to follow in terms of whether we are on track. The CCAC could have an important role in making statements on this, which would be important to emphasise.
In response to Deputy Whitmore's observation on nature-based solutions, it is true we have a jigsaw of policies to handle and we have not done very well in terms of protecting our water courses, biodiversity or air quality. We have also been exceeding our obligations in ammonia in recent years.
All the pieces of this jigsaw somehow must be brought into the climate Act, not in terms of specifically mentioning each one but by giving the framework whereby they can be tackled by a proactive Department to achieve end products in these areas. That is all I would say. There is an issue in respect of carbon neutrality and at what level do we achieve carbon neutrality, be that high emission, high sequestration or low emission, low sequestration. These are also important issues. I would not like us to see the high emission, high sequestration model because I have doubts about the validity of sequestration achieving its ends in those areas. Therefore, we probably should flesh out what we mean by carbon neutrality.
Mr. Andrew Jackson:
On Senator Higgins' question about the role of the Climate Change Advisory Council, it would be valuable for the advisory council to advise not just on what the overall budget should be but also on potential opportunities within different sectors etc. That is the sort of role it is performing at present; giving advice in its annual reports on things it thinks ought to be done. That is definitely worth looking at further.
On the question of biodiversity and better implementation of existing law, I think there are two prongs to it. The first is to look at the idea I suggested earlier of getting a general obligation relating to biodiversity and applying to all public bodies into section 15 of this Bill. It is absolutely right that a key piece of the jigsaw is better implementation of existing biodiversity obligations, because a lot of work needs to be done there. Forestry is one area where we really need to strengthen the implementation of biodiversity law but also to look generally at impact assessment law and how the environmental impact assessment, EIA, directive is operating. That is relevant to climate and biodiversity, because at present, we are not doing environmental impact assessments of forestry plantations. Therefore, we are not considering in any detail the question of whether a particular forest actually will sequester carbon over its lifetime or rather, whether it will be a persistent source of carbon, because, for example, it is planted on peat soils. There are some really important issues there.
On Senator O'Reilly's question on interaction between interim targets and climate budgets, on looking at the different legislative frameworks, some of them use both. It is not that they have picked one or the other because there is a symbiotic relationship between targets and budgets. Interestingly, in the evidence given before the committee last week by the departmental official, it is clear that there is a symbiotic relationship, because the Department official said that the first two budgets to be proposed by the Climate Change Advisory Council need to be within the framework of the programme for Government, which is a 7% average per annum. That is an example of the setting of a target by policy, albeit not in law, and asking for budgets that are compatible with that policy.
I might just come back to Senator Boylan's point on justiciability, because I did not have the chance to say anything about that and I meant to. It is very clear to me, as a former drafting lawyer, that the language in the Bill has been crafted with a view to making legal accountability more difficult. In some respects, that has happened between the heads of the Bill of 2019 and the current text. What intervened in the meantime? The Supreme Court's judgment in Climate Case Ireland. I pointed to examples in my opening statement of where that has happened, but it is clear that an attempt has been made here to make this Bill less justiciable. However, I believe that is counterproductive because reducing emissions is what is needed. We need to reduce emissions and pursue a just transition in a way that is compatible with restoring, enhancing and conserving biodiversity. Consequently, making the Act litigation-proof is not the way to achieve those things.
We are out of time. On behalf of the committee I thank Dr. Jackson and Professor Sweeney for their attendance. In spite of the time constraints, it was a worthwhile and thorough engagement. As I mentioned previously, the committee is open to receiving further written submissions from the witnesses. Such submissions would be very welcome. As the committee has set a deadline of 30 October 2020 for anyone who is sending in submissions, I ask the witnesses to take note of that.