The Government is already in breach of its own Climate Act

After a long and sometimes contentious debate, the Government recently announced what it described as “sectoral emissions ceilings” under the Climate Act. While the evident intention of the Government to progress this process is welcome, we have serious concerns that the approach adopted was flawed in law and science and carries grave risks of undermining the objectives of the Climate Act.

First, and most seriously, the ceilings announced by the Government do not meet the definition of sectoral emissions ceilings in the Act.

The Oireachtas having agreed carbon budgets for three five-year periods (295 metric tons of carbon dioxide equivalent or MtCO2e for 2021-2025; 200 MtCO2e for 2026-2030; and, provisionally, 151 MtCO2e for 2031-2035), the Climate Act requires the Government to then agree maximum limits for the total emissions for each sector over each budget period.

The Government has proposed the incorporation of significant ‘unallocated emissions reductions’ in its setting of ceilings

In other words, having agreed a total carbon budget for each five-year budget period, the Government must share out that total between sectors. Instead, the sectoral limits actually announced by the Government were only for annual emissions in one discrete year, 2030. This clearly does not meet the obligation to prepare and approve sectoral emissions ceilings on “... the maximum amount of greenhouse gas emissions in different sectors of the economy during a budget period”. Focusing on the period to 2030, as yet we know nothing at all about the proposed sectoral share of emissions for the period 2021-2025, and we have been given a split for just one year of the five that comprise the period 2026-2030.

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It is useful to consider this fundamental problem by the simple analogy of financial budgeting, and switching the units of discussion from MtCO2e to (notional) millions of euros. We would then know that the total budget for all sectors of the economy is €295 million for 2021-2025 and €200 million for 2026-2030.

Sectors need to know how much they can spend between 2021 and 2030 within these overall limits. Instead of providing them with this information, the Government simply tells them that in 2030 the electricity sector will have a budget of €3 million, the transport sector €6 million, buildings (commercial and public) €1 million, buildings (residential) €4 million, industry €4 million, agriculture, €17.25 million, other industrial gases, petroleum refining, and waste) €1m, and LULUCF (Land Use, Land-use Change and Forestry) will have an amount to be determined 18 months from now, giving a total annual budget for 2030 of €36.25 million (excluding LULUCF).

The sectors will naturally say, “Thank you, but who gets what from the €295 million budget from 2021-2025, and who gets what from the remaining €163.75 million from 2026-2029 (€200 million less the €36.25m)?” Failing to provide them with this information would almost certainly mean that the overall national budgets would be exceeded, given that the sectors would be otherwise free to spend (emit) as they please between now and 2030.

This is critically important because in climate terms it is the cumulative totals that are of most relevance scientifically, since there is a near-linear relationship between global cumulative CO2 emissions and the increase in global surface temperature.

An additional problem is that the LULUCF sector has been excluded from the exercise to date, with a decision deferred for at least 18 months. The absence of a ceiling for this sector throws into question the purported ceilings for the others (even if those were properly constituted as ceilings for the full five-year periods), since the setting of the missing ceiling may affect the size of the others set earlier, in order to stay collectively within the overall budget.

Further, a delay of 18 months would mean that the LULUCF ceiling would be deferred to circa January 2024 ie, after fully three years of the first five-year budget period would have already elapsed. This would clearly not be consistent with effective, timely, management of compliance with the “economywide” budget for that five-year period.

Much of the public commentary following the Government’s announcement has focused on the need to move beyond sectoral haggling and to advance swiftly to implementation and delivery of emissions reductions

Finally, the Government has proposed the incorporation of significant “unallocated emissions reductions” in its setting of ceilings. We can find no basis for this in the Act. On the contrary, the Act requires that the sectoral ceilings be set “within the limits of the carbon budget” for each budget period. The Act does not provide for the Government to set carbon budgets or ceilings that bake-in unallocated, speculative, savings.

In practice, making a provision for notional “unallocated emissions reductions” could only reasonably be expected to have the effect that the sum of the sectoral ceilings is deliberately allowed to exceed the limits of the affected carbon budget by an arbitrarily determined amount. However, it is just as plausible that events may lead to unanticipated increases in emissions as opposed to emissions reductions. Thus, from the perspective of prudential budget governance, the appropriate approach would be the exact opposite to the one adopted: namely providing for an unallocated carbon budget contingency reserve, whereby the sectoral emissions ceilings are constrained to add up to less than the applicable economywide budget amount in each budget period.

These points need to be addressed urgently. Firstly, because of the increasingly severe impacts of climate change on a global basis that have become manifest, as well as the projected future impacts. Secondly, because the annual updating of the Climate Action Plan and annual reporting obligations of the Climate Change Advisory Council depend on sectoral emissions ceilings being in place.

Much of the public commentary following the Government’s announcement has focused on the need to move beyond sectoral haggling and to advance swiftly to implementation and delivery of emissions reductions. Nonetheless, and in spite of the clear provisions of the Climate Act, sectors and society as a whole simply have not yet been told who is to have what share of the agreed national carbon budgets to 2030, and thus have not been provided with the clarity and certainty required to enable effective action towards a shared goal.

This is not in any way to suggest delay or procrastination in any of the measures already identified; rather we are emphasising that, under the Act, ongoing dynamic governance (monitoring, assessment, review, updating) of these measures is essential to achieving the intended outcomes, and this is possible only if sectoral emissions ceilings are properly constituted and published, on a timely basis, and in the specific manner provided for under the Act.

Barry McMullin is professor of electronic engineering at Dublin City University, Andrew Jackson is Assistant Professor in Planning and Environmental Law at University College Dublin, John Sweeney is emeritus professor of Geography at Maynooth University and Paul Price is a researcher at Dublin City University