Northern ireland's consent to the climate change act 2008: Symbol or Illusion?

Journal of Environmental Law

Volumn 25, Issue 1, 2013, Pages 63-93

  Turner, Sharon ^a  

^a QUEEN'S UNIVERSITY BELFAST   (United Kingdom)

Author keywords

Climate governance; Devolution; Northern Ireland

Indexed keywords

CARBON; CLIMATE CHANGE; DEVOLUTION; ENVIRONMENTAL POLICY; GOVERNANCE APPROACH;

NORTHERN IRELAND; UNITED KINGDOM;

EID: 84874791771     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqs029     Document Type: Article

References (130)

1. James Meadowcroft, 'Climate Change Governance: World Bank Policy' (2009) Research Working Paper 4941, World Bank, World Development Report Team 9, http://papers.ssrn .com/sol3/papers.cfm?abstract_id1/414079594
2. James Meadowcroft, 'Greening the State' in Paul Steinberg and Stacy VanDeveer Comparative Environmental Politics (MIT Press 2011)
3. Anthony Giddens, The Politics of Climate Change (Polity 2009)
4. Frank Bierman and Klaus Dingwerth, 'Global Environmental Change and the Nation State' (2004) 4 Global Environmental Politics
5. Draft Climate Change Bill (Cm 7040, 2007) [1.9] and [1.10].
6. The Sewell Convention governing Westminster's powers to legislate on transferred matters required the UK's most devolved administrations to formally consent to the application of the Act.Wales is not sufficiently devolved to require the granting of legislative consent.
7. Colin Reid, 'Climate Change Law in Scotland' (2012) 1 Ympristö -JuridiikkaMiljöjuridik (Finnish Environmental Law Review) 39
8. 'Meeting Carbon Budgets: Third Progress Report to Parliament' (2011) http://www.theccc.org.uk/reports/3rd-progress-report
9. Council Directive 2009/28/EC of 23 April on the promotion of the use of energy from renewable sources and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L140/16. OJ L140/16
10. http://www.doeni.gov.uk/northern_ireland_action_plan_on_greenhouse_gas_emissions_reduction. pdf
11. For an overview of the regional context see: Green New Deal Housing Fund: Business Plan (November 2010) http://www.foe.co.uk/resource/briefings/ni_green_new_deal.pdf
12. First Steps Towards Sustainability: A Sustainable Development Strategy for Northern Ireland (2006) http://www.ofmdfmni.gov.uk/sustain-develop.pdf
13. Douglas McIldoon, Northern Ireland Electricity Consumers: Orphans in the Energy Storm (2008) http://www.uregni.gov.uk/uploads/. ./McIldoon_Review_051208.pdf
14. A risk acknowledged by the Northern Ireland Greenhouse Gas Emission Reduction Action Plan (n 10).
15. Giddens (n 1) 116.
16. Donald Horowitz,'The Northern Ireland Agreement: Consociational, Maximalist and Risky' in John McGarry (ed), Northern Ireland and the Divided World (Clarendon 2001) 99
17. Robin Wilson, The Northern Ireland Experience of Conflict and Agreement: A Model for Export? (Manchester University Press 2010)
18. Rick Wilford, Aspects of the Belfast Agreement (OUP 2001)
19. Rick Wilford, 'Northern Ireland: The Politics of Constraint' (2010) 63 Parliamentary Affairs 134l
20. Colin Knox, Devolution and the Governance of Northern Ireland (Manchester University Press 2010)
21. Arend Lijphart, 'Constitutional Design for Divided Societies' (2004)
22. The Climate Committee's analysis of Northern Ireland's engagement is discussed below and in the second article in this analysis
23. Sharon Turner, 'Committing to Effective Climate Governance in Northern Ireland: A Defining Test of Devolution' (2013) 25 Journal of Environmental Law
24. Climate Change: The UK Programme (Cm 4913, 2000).
25. Devolution was initially restored in December 1999 but Direct Rule was reinstated two months later until May 2000. Devolution was suspended for two further periods in 2001 and lasted for almost a year until finally collapsing in October Devolution remained in suspension until May 2007. See generally:Wilford (n 14).2002
26. Northern Ireland Executive: Programme for Government Making a Difference (2002-2005).
27. Shaping Our Future - The Regional Development Strategy for Northern Ireland (2025)http:// www.planningni.gov.uk/index/policy/regional_dev.htm. accessed 6 August 2012.
28. IPPC Fourth Assessment Report: Climate Change 2007 http://www.ipcc.ch/publications_ and_data/publications_and_data_reports.shtml
29. Daniel Bodansky,'The Copenhagen Climate Change Conference' (2010) 104 American Journal of International Law 230
30. David Freestone, 'From Copenhagen to Cancun: Train Wreck or Paradigm Shift?' (2010) 12 Environmental Law Review 87.
31. Commission, '20 20 by 20 - Europe's Climate Change Opportunity' (Communication) COM 30 final.2008
32. Draft Climate Change Bill (n 3).
33. Northern Ireland Assembly, Climate Change Bill: Legislative Consent Motion, Environment Minister (Arlene Foster), Monday 10 December 2007http://archive.niassembly.gov.uk/ record/reports2007/071210.pdf
34. This target was raised from requiring a 26% emissions reduction from 1990 levels by 2020 to 34% shortly after the enactment of the Act. This process is discussed infra.
35. Key aspects of these transparency and accountability guarantees include obligations imposed on the Secretary of State to lay before Parliament proposals to amend the UK's targets (s 3(4)); proposals for a draft carbon budget (s 8(1)); a report of the indicative annual range for UK net emissions for each year of a carbon budget once one is adopted (s 12(1)); proposals for policies designed to meet carbon budgets, including an explanation of their economic impact (s14(1) and (3)); an annual statement of the trajectory of net UK carbon emissions (s 16); an explanation of the reasons for any failure to meet a carbon budget (s 18(8)) and to make a final statement to Parliament explaining whether the UK's 2050 obligation has been met and if not, why not (s 20).
36. In particular, decisions relating to the amendment of the UK's long-term or interim targets (s 3(1)) or the setting or amendment of carbon budgets (ss 7 and 9). The Committee is also obliged under the Act to publish such advice.
37. S 36. These reports must be published.
38. The key consultation process are as follows: s 3(1) on proposed amendments to the long-term target; s 7(1) the setting or amendment of target percentages; s 9(1) setting or amendment of carbon budgets; s 11(7) and s 22(1); setting limits on use of carbon units; s 13(4) the preparation of proposals and policies for meeting carbon budgets must take account of proposals and policies prepared by the devolved administrations; s 14(5) the report to UK Parliament setting out proposals and policies to meet carbon budgets must be prepared in consultation with devolved administrations in so far as it relates to policies and proposals developed at devolved level; s 20(6) the report to UK Parliament setting out proposals for measures to compensate for exceeding a carbon budget must be prepared in consultation with devolved administrations in so far as it relates to proposals and policies developed at devolved level.
39. Ss 3(5), 7(5) and 9(3).
40. These included the members of the Northern Ireland Climate Coalition (comprising a wide range of leading NGOs listed at 4 accessed 18 August 2012 but also other major groups such as the RSPB(NI).http://archive.niassembly.gov.uk/environment/2007 mandate/submissions/CCCNI.htm
41. Most notably in First Steps Towards Sustainability: A Sustainable Development Strategy for Northern Ireland (2006) http://www.ofmdfmni.gov.uk/sustain-develop.pdf
42. See Sydney Elliott,'Voting Systems and Political Parties in Northern Ireland' Brigid Hadfield (ed), Northern Ireland: Politics and the Constitution (Open University Press 1992)
43. Arthur Aughey, The Politics of Northern Ireland: Beyond the Belfast Agreement (Routledge 2005)
44. Joanne McEvoy, The Politics of Northern Ireland (Edinburgh University Press 4).
45. Led by David Trimble (appointed as First Minister) and Seamus Mallon as Deputy First Minister.
46. During the first mandate the DUP took responsibility for energy policy, investment and finance, environmental policy, development control (including the formulation of planning policy statements) and responsibility for building regulations. Sinn Fein took control of agriculture and regional development (which included transport policy and spatial planning). The Guardian (11 December 2007http://www.guardian.co.uk/politics/page/2007/dec/11/14
47. Only control of nuclear policy and installations is excepted under s 4, Schedule 2 of the Northern Ireland Act 1998. Similarly extensive responsibility for policies relating to agriculture, transport, residential housing and waste management are transferred. It is also responsible for development control and planning policy.
48. See n 3 [2.1-4.13] and Department of the Environment, Food and Rural Affairs,Taking Forward the UK Climate Change Bill: The Government's Response to Pre-Legislative Scrutiny and Public Consultation (Cm 7225, 2007).
49. Karla Hill, The UK Climate Change Act 2008: Lessons for National Climate Laws (2009) Client Earth 10 http://www.clientearth.org/reports/climate-and-energy-lessons-from-the-climatechange- act.pdf
50. First Report of the Committee on Climate Change, Building a Low Carbon Economy - The UK's Contribution To Tackling Climate Change (2008)4accessed 25 August 2012. The Government indicated its decision to accept this advice as part of the 2009 Budget and was implemented by the Carbon Budgets Order 2009.http://www.theccc.org.uk/reports/building-alow- carbon-economy
51. On 21 June 2007, the Scottish Cabinet Secretary for Finance and Sustainable Growth (JohnSwinney) announced the Scottish Government's intention in this regard. The Scottish Government http://www.scotland.gov.uk/Publications/2008/10/response2012.
52. The emission reduction provisions of the Scottish Act (primarily ss 2, 5, 7, 9 and 10) require Scottish Ministers to seek the advice of an independent, expert adviser-referred to as the 'relevant body'. S 24(1) empowers them to designate a person or body to perform this function or to create a Scottish Committee on Climate Change. If these powers are not exercised, the advisory function is performed by the UK Committee on Climate Change created under the UK Climate Act, which is currently the case.
53. Welsh Assembly Government, OneWales: One Planet - The Sustainable Development Scheme of the Welsh Assembly Government (2009) http://wales.gov.uk/docs/desh/publications/ 090521susdev1wales1planeten.pdf2012.
54. http://www.sustainwales.com/sites/default/files/Climate%20Change%20Strategy%20for% 20Wales.pdf2012.
55. Northern Ireland Executive, Programme for Government (2008-2011) PSA 225http://www .northernireland.gov.uk/pfgfinal.pdf2012
56. This objective had been set down in First Steps Towards Sustainability, the first sustainable development strategy for Northern Ireland, which had been developed by the Direct Rule administration (n 11) 98.
57. Northern Ireland Assembly, Assembly Committee for the Environment, Session 2009/2010, NIA 24/09/10R, para 219
58. Hill (n 54)
59. Martha Grekos, 'Legislative Comment: Climate Change Act 2008' (2009) Journal of Planning and Environmental Law 454
60. Harriet Townsend, 'The Climate Change Act 2008: Will It Do the Trick?' (2009) 11 Environmental Law Review 116
61. Harriet Townsend, 'The Climate Change Act 2008: Something to be Proud of After All?' (2009) Journal of Planning and Environmental Law 842
62. House of Lords, House of Commons: Joint Committee Report on the Draft Climate Change Bill (2006-07, HL Paper 170-I, HC 542-I)
63. House of Commons Environment, Food and Rural Affairs Committee, Report on Draft Climate Change Bill (2006-07, HC 534-I)
64. House of Commons Environmental Audit Committee, Beyond Stern: From the Climate Change Programme Review to the Draft Climate Bill, (2006-07, HC 460)
65. Joseph Curtin and Gina Hanrahan, Why Legislate? Designing a Climate Law for Ireland (The Institute of International and European Affairs 2012http:// www.iiea.com/publications/why-legislate-designing-a-climate-law-for-ireland
66. Although these obligations do not align exactly to those embraced by the rest of the UK, Government in Northern Ireland accepted legal obligations to produce regional adaptation plans (s 60) aligned to the national risk assessment published under s 56 of the Act.
67. Northern Ireland Assembly, Committee on the Environment: Response to UK Climate Change Bill, 7 September 2007http:// www.archive.niassembly.gov.uk/environment/2007mandate/ Responses/071207.htm
68. Friends of the Earth (NI), Assembly Briefing No.1: The Climate Change Bill (June 2007http:// www.foe.co.uk/northern_ireland/news/act_for_climate_34834.html4accessed
69. Friends of the Earth (NI) Consultation Response: The Draft Climate Change Bill Response from Friends of the Earth (Northern Ireland) http://www.foe.co.uk/northern_ireland/publications. html
70. Friends of the Earth (NI) Newsletter (2008, Issue 17). See also the submissions made by other organisations from Northern Ireland's NGO sector to the Northern Ireland Assembly, Committee on the Environment, Inquiry into Climate Change, Session 2009/2010, NIA 24/09/10R, of the record of this inquiry contains all written submissions and records of oral evidence; available at:http://archive.niassembly.gov.uk/environment/ 2007mandate/reports/2009/report_24_09_10r_vol2.htm2
71. http://www.northernireland.gov.uk/pfgfinal.pdf 2012.
72. Reid (n 7); Hill (n 52), Grekos (n 65),Townsend (n 65) Curtin and Hanrahan (n 65)
73. Colin Reid, 'A New Sort of Duty? The Significance of ''Outcome'' Duties in the Climate Change and Child PovertyActs' (2012) Public Law
74. The most recent statements of NI's emissions profile are provided the Climate Committee Report (n 17) and the Northern Ireland Greenhouse Gas Emission Reduction Action Plan (n 10). Agriculture contributes 27% of the region's emissions compared to 9% in the UK as a whole and with per capita emissions of 2.9tCO2e/per person compared to 0.8 in the UK; transport contributes 22%, which is a similar share at UK level but with slightly higher per capita emissions in NI (2.4 tCO2e/per person compared to 2.0), and residential emissions contribute 17% of emissions compared to 14% at UK level with per capita emission of 1.9 tCO2e/per person as compared to 1.3 at UK level).
75. [2009] OJ L140/136.
76. COM 370 final.2011
77. See (n 75) art 5, Annex II (16%).
78. Discussed below.
79. Discussed in more detail by Curtin and Hanrahan (n 65).
80. S 4. Exceptions set out in s 3(2) permitted judicial enforcement in limited circumstancesc-largely in relation to non-compliance with national/sectoral plans by Ministers or public bodies. See Curtin and Hanrahan (n 65) 17-18.
81. Hill (n 52); Townsend (n 65) and Curtin and Hanrahan (n 65).
82. Hill (n 52) 30-31
83. Townsend (n 65) 117-118
84. Curtin and Hanrahan (n 65) 17-18. The transparency and accountability provisions are concentrated in pt 1 of the Climate Act
85. key provisions are listed (n 35). Government seek and consider the advice of the independent Climate Committee; and requirements concerning public availability of the Committee's advice, etc.
86. The framework of transparency and accountability obligations set out in pt 1 of the Act are all drafted to impose obligations primarily on the Secretary of State for DECC. For a summary of these obligations see (n 35).
87. S 3 (from 2010 onwards).
88. S 80. Taking Forward the UK Climate Change Bill (n 50) [5.7].
89. Ss 9, 14 and 1(3) respectively.
90. S 60. The nature of this obligation will be discussed in more detail in the second article in this analysis but for present purposes it is worth noting that the Executive's willingness to be held to local account for governance of regional adaptation planning was arguably linked to the fact that this obligation could be (and is) adapted to suit the Executive's inherently fragmented nature. In effect, each Northern Ireland Department is required to account to the Assembly for adaptation planning as opposed to the Executive as a whole.
91. The Committee was established under pt 2 of the Act (ss 32-42).
92. In essence the devolution of policing and criminal justice powers. SeeWilford (n 14) 147.
93. RickWilford and RobinWilson,'Northern Ireland Devolution Monitoring Report' Devolution Monitoring Programme 2006-UCL Constitution Unithttp://eprints.ucl.ac.uk/19855/1/ 19855.pdf2009
94. Brendan Murtagh and Peter Shirlow, 'Devolution and the Politics of Development in Northern Ireland' (2012) 30 Environment and Planning 46.
95. For a general discussion of the DUP's attitude to the environment and environment lobby see: David Gordon,The Fall of the House of Paisley (Gill & Macmillan 2009) 230-33.
96. The ENDS Report (June 2008) Issue 401 and (July ) Issue 402.2008
97. The Guardian, 'DUP Stands By Climate Change Sceptic Environment Minister, 10 February 2009. See alsohttp://www.guardian.co.uk/politics/2009/feb/10/climate-change-scepticenvironment- minister4,http://www.news.bbc.co.uk/1/hi/northern_ ireland/7878399.stm
98. The ENDS Report (JuneIssue 401 2008)
99. Belfast Telegraph, 11 February 2009, http://news.bbc.co.uk/1/hi/northern_ireland/7599810.stm, BBC News 10 June 2008, 10 June, 11 February
100. HC Deb 28 October 2008, vol 481 cols 765, 766, 770, 774, 776.
101. BBC News, 9 February 2009 http://news.bbc.co.uk/1/hi/northern_ireland/7878399.stmAugust 2012.
102. Reflected in Northern Ireland's minimal contribution to the discussion concerning the setting of the first three national carbon budgets, which is captured in the UK Government's policy statement (whose publication is required under the Climate Act itself) setting out whether and how the views of the national authorities were taken into account in setting them, HM Treasury, Building a Low-Carbon Economy: Implementing the Climate Change Act 2008 18; available at http://webarchive.nationalarchives.gov.uk//http://www.hm-treasury.gov. uk/bud_bud09_carbon.htm4accessed2009
103. Strategic Investment Board for Northern Ireland, Investment Strategy for Northern Ireland 2008-2018http://www.sibni.org/investment-strategy.htm4
104. In addition to the Climate Act and Planning Act 2008, the Energy Act 2008 was part of the new legislative framework introduced to drive the UK's low carbon transition. The latter Act introduced a range of new powers designed to facilitate and stimulate decarbonisation of the energy sector; including: powers governing carbon capture and storage processes, financial powers to incentivise the deployment of renewables and new powers governing energy reporting. The policy background to the Energy Act is set out in: Department of Trade and Industry, Meeting the Energy Challenge: AWhite Paper on Energy (Cm 7124, 2007
105. The scale of the original fund is outlined at The Northern Ireland Office, Northern Ireland Leading theWay on Green Energy - Hain, 27 February 20065http://www.nio.gov.uk/media-detail.htm?newsID1/4133654
106. See generally: Northern Ireland Assembly Committee for Enterprise, Trade and Investment, Report on the Committee's Inquiry into the Barriers to the Development of Renewable Energy Production and its Associated Contribution to the NI Economy Session 2010/2011, NIA 14/10/ 11R.
107. Friends of the Earth (NI), Briefing: Northern Ireland Strategic Energy Framework 2009, Response to the Pre-Consultation Scoping http://www.foe.co.uk/resource/consultation_responses/ni_strat_energy_framework.pdf
108. The nature and implications of Northern Ireland's historically lax rural planning policy, in particular, the consenting of single houses in the countryside, was set out by the Direct Rule Government in its proposals to amend this policy, published in 2007: Draft PPS 14, Sustainable Development of the Countryside 54accessed 9 August 2012. The effective suburbanisation of the region caused by this policy framework and carbon implications thereof were further addressed by Geraint Ellis and Manoj Roy, Rural Settlement Patterns and Access to Development Land: Developing the Evidence Base, Queen's University Belfast Report for Friends of the Earth (NI) (2008) http://www.foe.co.uk/resource/ reports/ni_pps14_report_qub.pdf,http://www.planningni.gov.uk/index/policy/ policy_publications/planning_statements/pps14-draft-dev-countryside.pdf
109. BBC News (n 99 and 101).
110. Roy Beggs junior, Ulster Unionist Party spokesperson on the Environment, quoted by The Guardian (n 98).
111. The debacle was analysed by The Guardian (n 98).
112. Office of the First and Deputy First Minister, Everyone's Involved: Draft Sustainable Development Strategy for Consultation (2010).
113. http://www.detini.gov.uk/strategic_energy_framework__sef_2010_-3.pdf2012
114. Department of Enterprise Trade and Investment, Review of the 2004 Strategic Energy Framework for Northern Ireland (2008)5http://www.detini.gov.uk/strategic_energy_framework_june_2004.pdf4accessed 6 August 2012, para 2.1
115. Scotland's original commitment to achieving 50% gross electricity consumption to be derived from renewable energy by 2020 has recently been raised to 100% by the The Scottish Government, 2020 Route Map for Renewable Energy in Scotland 5accessed 6 August 2012.http://www.scotland.gov. uk/Publications/2011/08/041103534
116. Department of Energy and Climate Change (Cm 7686, 2009).
117. Expressed by the Northern Ireland Assembly Committee for Enterprise, Trade and Investment, Report on the Committee's Inquiry into the Barriers to the Development of Renewable Energy Production and its Associated Contribution to the Northern Ireland Economy, Session 2010/2011, NIA 14/10/11R, para 232.
118. Department of Energy and Climate Change (Cm 7686, 2009)
119. See (n 126) [4.29] and [8.16-8.18].
120. This issue was raised in the Committee's First Advisory Report, Building a Low Carbon Economy (n 54) and has remained a constant feature of its analysis until its most recent report on Northern Ireland in November 2011 (n 17). Its most recent (third) national progressreport (n 8) notes that while surface transport emissions have continued to rise across the UK as a whole, Northern Ireland's have increased by 40% from 1990 levels by 2008 compared to 8% in Scotland and 7% inWales and now vies with agriculture as the single largest source of its carbon emissions (23%).
121. See (n 17) and (n 8).
122. See (n 17) 19-21.
123. See (n 10) 25-26.
124. The Impacts of CRC legislation on Organisations in Northern Ireland (Carbon Masters 2010) 8.
125. S 2 Warm Homes and Energy Conservation Act 2000.
126. See general duties to take measures to combat fuel poverty set out in pt 2 of the UK Energy Act 2010.
127. The impact of this Group will be discussed in detail in the second article in this analysis; it composition is set out athttp://www.foe.co.uk/resource/briefings/ni_green_new_deal.pdf4
128. See (n 10, 12 and 17).
129. Murtagh and Shirlow (n 93) 46
130. John Barry, 'It Ain't Easy Being Green': Sustainable Development Between Environment and Economy in Northern Ireland' (2009) 24 Irish Political Studies 45.