Climate law omerta?

Ministers, advisors, activists and civil servants work hard to update Ireland’s climate laws for action.

Yet the vast majority of citizens, directors, company secretaries and organisations, public and private remain blissfully unaware of our climate obligations as a society.  That’s good for me as a trainer, but lousy for their organisations’ budgets and spending on fossil fuels.

Why is this? Well as long as I have been working (1982) the answer is that ‘ignorance of the law is not a defence’ – which is true. But without high profile enforcement nothing changes.  Law after law is passed with no fundamental changes in Irish society.  

Culturally we are transposing laws from the roman continental legal system[i], an interlocking code, to the English common law system which does the opposite.

For example, Spain issues a decree[ii] to limit building heating to 19degC and its acted upon immediately (“within 7 days”), as the penalty is automatic. 

Our common law system means a case has to be made, approved, taken, won, appealed and won again before any penalty arises. 

Never pose a problem without some solutions, so here goes;

1. Advertise climate laws as they come into force?
   1. I get regular updates from the EU on regulations and directives and their progress – why not GOV.ie?  
      1. e.g. When was the last time you read https://www.irisoifigiuil.ie ? Journey back to 1990s’ to see how we disseminate our laws in the 21^st century.
   1. Explain the societal benefits and not just the compliances e.g. many of the obligations in the EU EED 2023 will support corporates’ CSRD returns and vice versa, when transposed in Irish Law in 2025.
2. Take at least one high profile corporate compliance case per year publicise it.
   1. Innocent until proven guilty has served us well for humans but should be diluted for bodies corporate.
3. Appeals are inevitable from deep pocketed companies and bruised egos
   1. Fast track these appeals so the case stays in the news.
   1. If you think publicity does not work, I direct you to Brightpoint vs BSA in 2000 the publicity from which reduced Irish business software piracy overnight. (https://www.irishtimes.com/business/court-backs-microsoft-and-continues-order-against-brightpoint-1.291407 Yes the judge was right to ask both sides’ PR firms to tone it down, but you get the idea). Back in those days the first beneficiaries of this action were the many Irish SME software resellers (not to mention taxpayers).

Many companies can afford to pay Class A fines daily forever without seeing any impact on their reputation or business.  A modernized Iris Ofiguil publication website could keep cases live and allow filtered alerts to those interested in particular topics.

How could government exploit the above changes and deliver on Climate Action, as required in the Climate Act 2021?  In the ‘90s I saw a dynamic, transformed government, galvanised by a fight for economic survival and the Peace process, decisions made swiftly, pragmatic application of laws by judges.   Today I see utter inertia, no-one persons fault etc it’s the ‘system’ e.g.

• Ros a mhíl harbour abandoned[iii] 75% built due to fossil fuelled ‘environmental’ actions and judges not exercising common sense and the Climate Act 2021.
  • All of government must do business in line with net zero by 2050 – Climate Act, a planning permission lawfully granted disallowed during construction is nuts (on a technicality).
• Wind farms[iv] that went through planning and are producing electricity face crazy planning permission expirations.  Surely modern laws e.g. Climate Act and Circular Economy Act supersede these crazy historic restrictions.
• Data centres with full back-up power vilified and limited to using their back-ups 18hrs[v] per year (they can and do apply for longer but why limit them?)
• Aviation: Aer Lingus[vi] was a launch customer for Boeing’s transformational 747[vii]. It connected the world at low-cost ushering in the modern era of migrants being able to visit back home and invest in their home place .
  • With Dublin airport passenger cap will Ireland be first or last to invest in electric zero emission short haul flight? 
  • As an island we need to be top of the queue for battery electric airliners and carbon reduction.
• Tendering system that ignores green public procurement guidelines in place for years never mind the requirement for life cycle costing in place since 2011

Figure 1 EU explainer of intent for Art.7 of EED 2023

Obviously, the above reflects frustration from someone who has seen our government take us from one of Europe’s poorest nations in the 1970’s to one of Europe’s richest in the 2000’s. 

I hope those working in government today can take strength from the examples above to unblock the ‘system’ and implement the Climate Act in full, or at least raise awareness of its provisions and who it applies to.  The graphic below is written by me so it has no great weight, but I hope it explains how we must all play our part in helping Ireland sustain itself into the future.

 I used ChatGPT (AI) for the references below, but the explanations are useful I think.

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[i] The English Common Law system originated in the early Middle Ages in the King’s Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London¹. This system evolved from the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066². The English common law did not originally consist of substantive rights but rather of procedural remedies¹. It is also known as Anglo-American law and has been administered by the common-law courts of England since the Middle Ages¹. From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations)¹.

On the other hand, Civil Law systems, also called continental or Romano-Germanic legal systems, are found on all continents and cover about 60% of the world³. They are based on concepts, categories, and rules derived from Roman law, with some influence of canon law, sometimes largely supplemented or modified by local custom or culture³. The main source of law in the Continental System is the code, a systematic collection of interrelated articles, ordered by subject in a certain order, which explains the basic legal principles, prohibitions, freedoms, etc⁴. Modern civil law stems mainly from the Napoleonic Code of the early 19th century, and it is a continuation of ancient Roman law⁵.

The key differences between these two systems are:

• Common Law: It is based on judicial decisions and embodied in reports of decided cases¹. It stands in contrast to the legal system derived from civil law¹. It is also contrasted to the rules applied in English and American courts of equity and also to statute law¹.
• Civil Law: It is a comprehensive system of rules and principles usually arranged in codes and easily accessible to citizens and jurists³. It promotes cooperation between human beings³. It holds case law secondary and subordinate to statutory law⁵. The civil law system is often contrasted with the common law system, which originated in medieval England⁵.

[ii] The Spanish temperature decree was enforced as part of a broader energy-saving initiative¹². Here are the key points:

• The Spanish government ordered all businesses to limit their temperatures and told shops to turn their lights off at night¹.
• Air conditioning cannot be lowered below 27 degrees Celsius in summer and heating cannot exceed 19 degrees Celsius in winter¹.
• Shop fronts must go dark by 10 p.m., according to the decree¹.
• Similar measures have already been put in place for public administration buildings, while they remain voluntary for households for now¹.
• The initiative gives businesses seven days to adapt to the new measures, which could be relaxed in cases of extreme temperatures and will be in place until November 2023¹.
• The government is also expected to launch a broader energy contingency and savings plan¹.

However, not everyone was happy with the plans. Isabel Díaz Ayuso, president of the Community of Madrid and a rising force in the conservative Popular Party, said the law would not be applied in the Spanish capital¹². She argued that the decree generates insecurity and scares off tourism and consumption¹².

[iii] https://www.independent.ie/irish-news/a-ludicrous-situation-workers-forced-to-down-tools-on-near-complete-30m-pier-after-planning-challenge-succeeds/a390540912.html

[iv] https://www.irishtimes.com/business/2024/06/26/dozens-of-irish-wind-farms-at-risk-due-to-outdated-planning-decisions-report/

[v] https://www.mhc.ie/latest/insights/permitting-irish-data-centres-what-you-need-to-know

[vi] https://www.rte.ie/archives/2013/0415/381407-inaugural-flight-of-the-aer-lingus-boeing-747-from-dublin-to-jfk/

[vii] https://www.bbc.com/future/article/20180927-the-boeing-747-the-plane-that-shrank-the-world