knowledge 2 February 2016 |

Climate Action and Low Carbon Development Act 2015 - A Brief Overview

The Act should be welcomed as Ireland’s first overarching piece of climate change legislation. However, it can equally be criticised for its failure to clearly identify specific targets for Ireland and its failure to set out a concrete path to reach these targets.

In summary, the Act provides the tools and structures to transition towards a low-carbon economy and it anticipates that it will be achieved through a combination of:

• a national mitigation plan (to lower Ireland’s level of greenhouse emissions);
• a national adaptation framework (to provide for responses to changes caused by climate change); and
• tailored sectoral plans (to specify the adaptation measures to be taken by each Government ministry).

Key Provisions of the Act

Section 3 provides that the Minister for the Environment, Community and Local Government (the “Minister”) is responsible for making and submitting for Government approval both the national mitigation plan and the national adaptation framework. The first national mitigation plan must be submitted not later than 18 months after the passing of the Act (10 June 2017) and the first national adaptation framework must be submitted not later than 24 months after the passing of the Act (10 December 2017). Both plans will be reviewed every five years.

In connection with the national adaptation framework the Government must (within three months of its submission) request appropriate Government ministers to formulate and submit a “sectoral adaptation plan” relating to their areas of responsibility. This sectoral adaptation plan will specify what measures each minister proposes to adopt for the purposes of adapting to the effects of climate change and enabling the achievement of the national transition objective. 

Factors to be taken into account when formulating the National Adaptation Framework and Sectoral Adaptation Plans when formulating the national adaptation framework and sectoral adaptation plans the Minister and the Government are required to take account of the following matters:

• the need to have regard to:

  
  

  •      any existing obligation of the State under the law of the European Union or any international agreement referred to in section 2 of the Act; and
  •     any likely future adaptation commitments of the State;

• the need to promote sustainable development;
• the need to achieve the objectives of a national adaptation framework at the least cost to the national economy and adopt measures that are cost-effective and do not impose an unreasonable burden on the Exchequer;

• relevant scientific or technical advice;
• the findings of any relevant research on the effectiveness of mitigation measures and adaptation measures;
• where sectoral adaptation plans have been approved by the Government under section 6 of the Act, the most recent approved sectoral adaptation plans;
• where a national adaptation framework has been approved by the Government under section 5 of the Act, the most recent approved national adaptation framework; and
• any recommendations or advice of the Expert Advisory Council (see below).

Duties of Certain Bodies

Notably, the Act obliges “relevant” bodies¹ to have regard to the following factors in the performance of their functions:

• the most recent approved national mitigation plan;
• the most recent approved national adaptation framework and approved sectoral adaptation plans;
• the furtherance of the national transition objective; and
• the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State.

This broad requirement to “have regard to” the above factors will encourage public bodies to review and assess the impact of their actions on the environment. It also opens up the possibility of judicially reviewing decisions of such bodies to examine whether they did in fact take the factors into account in their decision making.

 However, the judicial interpretation of the term “have regard to” is a low threshold: the Courts have held that in having regard to particular documents or guidelines, a body needs to show that it informed itself and gave reasonable consideration to the relevant documents or guidelines but is not bound by them. It would seem that the impetus for “relevant bodies” to deliver and implement climate change and carbon reduction measures will be influenced by the strength of the “framework” and “plans” issued by the Minister for Government approval.

Establishment of Climate Change Advisory Council

The Act also provides for the establishment of an independent national expert advisory council on climate change (the “Advisory Council”), which was formally established on 18 January 2016. The heads of the Environmental Protection Agency (the “EPA”), the Sustainable Energy Authority of Ireland, Teagasc and the Economic And Social Research Institute will be ex officio members of the Advisory Council.

The functions of the Advisory Council are to advise and make recommendations to the Minister and the Government in relation to matters such as the preparation of a national mitigation plan, a national adaptation framework, a sectoral adaptation plan, or any policy that is proposed to be submitted to the Government for approval in relation to the reduction of greenhouse gas emissions and adaptation to the effects of climate change in the State.

The Advisory Council is required to conuct an annual review of the progress made during the previous year in achieving greenhouse gas emissions reductions and furthering a transition to a low-carbon, climate-resilient and environmentally sustainable economy. The Advisory Council is to produce an annual report on its findings and recommendations stemming from its annual review.

Presentation of Progress Statements to the Oireachtas

The Minister must present an annual national transition statement an annual sectoral mitigation transition statement and an annual sectoral adaptation transition statement to each House of the Oireachtas within 12 months of the passing of the Act and then on each subsequent anniversary of its passing. These statements will include information on matters such as an overview of the mitigation policy measures adopted to reduce emissions of greenhouse gases, a record of emissions of greenhouse gases set out in the most recent national greenhouse gas emissions inventory prepared by the EPA and an assessment of the effectiveness of any sectoral mitigation measures that have been adopted.

Conclusion

The enactment of this legislation is to be welcomed and is certainly long-awaited. It is a step in the right direction and provides a framework in which public policy, the policy of each individual department of Government, and the policy of certain public bodies is required to explicitly address the issues of climate change and greenhouse gas emissions. However, as noted previously, the Act is open to the criticism that its contribution to the reduction of greenhouse gas emissions is composed of tools, not targets.

There is a key role for policy-makers and stakeholders to input into national mitigation and adaption strategies, but Ireland’s ability to meet COP21 obligations and EU targets to reduce carbon emissions will be dependent on the strength of the political will and the influence of all stakeholders. The Act should be a starting point that can lead to measures to generate investment in renewable energy, clean technology and sustainable transport and agriculture.