Revised climate Bill is a step forward but now comes the hard part

The revised draft of the climate action Bill published by the Government this week goes a long way to addressing weaknesses in a previous draft published last autumn. It is not perfect – no legislation is. There is an opportunity to strengthen some of the language during its passage through the legislative process. But it is also important that the Bill be enacted soon.

There are a number of notable improvements in the new draft. The language around the 2050 climate target has been strengthened. The Bill includes the programme for government commitment of a 51 per cent reduction in greenhouse gas emissions by 2030 by specifying that the first two carbon budgets recommended by the Climate Change Advisory Council must provide for this level of reduction. In theory the Government could deviate from this recommendation, but to do so it would have to ignore both the advisory council’s advice and its own core programme for government commitment, which seems utterly implausible.

There is a welcome inclusion of biodiversity in the new text. There is also new language on climate justice and just transition. Some of these provisions could be stronger and the legislative process will provide an opportunity to strengthen this language. The nomination of Patricia King, general secretary of ICTU, to the revamped Climate Change Advisory Council will also help to enhance the belated focus on just transition.

For some the main purpose of a climate law is to provide an appropriate yardstick against which to measure government (in)action

Much of the commentary on the Bill has centred on its level of ambition. Some view it as not doing enough, others that it sets extremely challenging targets that may not be achievable. It is perfectly possible to hold both of these views at once: that the Bill is both very challenging and not enough.

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There is strong evidence to support the position that 51 per cent emissions reduction by 2030 isn’t enough. According to the United Nations environment programme, global greenhouse gas emissions need to be cut by 7.6 per cent every year this decade to stay below the Paris agreement limit of 1.5°C. As a wealthy country that has failed to do its fair share to date, there is a compelling argument that Ireland should go further than this.

Steep trajectory

On the other hand, no country has enshrined in law as steep a decarbonisation trajectory over one decade as is provided for in the climate Bill. Of course, part of the reason the planned trajectory for the next decade is so steep is because Ireland has done so little to address climate change to date.

The level of ambition – as expressed in legally-enshrined targets – has important implications for the functioning of the system envisaged by the climate Bill, but this depends how we understand the purpose of the climate Bill.

For some – particularly those who simply do not trust government to deliver on climate-action targets – the main purpose of a climate law is to provide an appropriate yardstick against which to measure government (in)action and to punish failed delivery on climate targets. Viewed from this perspective, targets should be set purely in line with climate science, regardless of how achievable those targets are considered to be.

An alternative way to view the climate Bill is as a framework that enables government and society to undertake meaningful climate action

According to this view, legal accountability provides a mechanism to force a recalcitrant government to mend its ways. But there is a limit to what litigation can deliver. It can certainly be used to compel government to write better climate plans. This was the case last year, when the Supreme Court quashed the 2017 national mitigation plan. It is less likely that litigation can be used successfully to force a recalcitrant government to actually implement climate policies, particularly if these are politically unpopular.

There is nothing sacrosanct about the law. Compliance with legal obligations, and with court judgments, is ultimately a political decision for any government. If the political cost of compliance is judged to be greater than the political cost of non-compliance, a government will most likely opt for non-compliance. Precise obligations enshrined in law raise the political cost of non-compliance, but they are unlikely by themselves to ensure that targets will be met, or that effective remedy will be available in case of non-compliance.

Framework

An alternative way to view the climate Bill is as a framework that enables government and society to undertake meaningful climate action. This perspective presupposes a belief that there is at least some chance of meaningful climate action. From this starting point, the level of ambition enshrined in law becomes a balancing act between what climate science dictates and what our understanding of prevailing political, institutional and societal constraints will permit.

From this perspective, there is an inherent danger in setting climate targets that are widely considered to be unachievable. If the governance system established under climate legislation is asked to bear the weight of targets that the system believes to be completely unachievable, then the system itself may break down because policymakers won’t take it seriously.

When it comes to climate the best time to start was decades ago. The second-best time to start is now

This line of reasoning runs a significant risk of becoming enslaved to the status quo. Additionally, our collective understanding of what is politically and societally feasible is not fixed. One solution to this challenge is to set “stretch targets” that are somewhat – but not entirely – beyond what we collectively believe to be achievable.

The most important thing now is for the Government – and society – to get on with the business of delivering decarbonisation. The 2015 climate act was eight years, and two governments, in the making. We are now nine months into the lifetime of the Government. There is an opportunity to strengthen some of the Bill’s language as it passes through the legislative process, but it is also important that it be enacted soon.

Time is not on our side. When it comes to climate the best time to start was decades ago. The second-best time to start is now.

Dr Diarmuid Torney is an associate professor in the School of Law and Government at Dublin City University