Climate, Energy and Natural Resources
We have identified three significant thematic developments for the overall commentary in our Climate, Energy and Natural Resources section. The first concerns water and, as we describe below, three acts which have been passed since the Autumn Horizon Tracker concern aspects of water conservation. Second, the Deforestation–Free Products Regulation reflects a broader thematic approach to sustainable corporate supply chains also addressed elsewhere in other legislative initiatives which are discussed in the Tracker including the Corporate Sustainability Reporting Directive, and the, as yet to be finalised, Corporate Sustainability Due Diligence Directive. Finally, the issue of seven maritime area consents under the maritime planning framework is a very significant step forward for alternative energy development in Ireland and for related planning concerns. The current planning framework is underpinned by the Maritime Area Planning (MAP) Act 2021 as amended by the Planning and Development, Maritime and Valuation (Amendment) Act 2022. The Marine Protected Area Bill is a third piece of legislation in the framework. The purpose of this bill is to provide for the designation and management of Marine Protected Areas ("MPAs") as part of government plans to designate up to 30% of Ireland's maritime area as MPAs by 2030. The general scheme of the bill was published on 16 December 2022 and on 28 February 2023 the report on the pre-legislative scrutiny of the bill was published. This brings us back again to the constant need to balance development with the protection of other stakeholder concerns.
The EU Water Framework Directive (Directive 2000/60/EC) cautions that "[w]ater is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such". At the domestic level, three Acts have been passed since our Autumn Horizon Tracker, all in December and all addressed to specific aspects of water conservation and regulatory boards. The Water Environment (Abstractions and Certain Impoundments) Act 2022 regulates and establishes a national register of water abstractions greater than 25 cubic meters per day in order to ensure compliance with the requirements of the EU Water Framework Directive. The legislation provides for a risk-based approach to the regulation of abstractions. It also provides that all abstractions of 2,000 cubic metres or more per day will require licensing by the Environmental Protection Agency ("EPA").
The Planning and Development and Foreshore (Amendment) Act 2022 amends the Foreshore Act 1933 and the Planning and Development Act 2000. The act amends the definition of "foreshore" to include the body of water above the seabed and the subsoil below it. The purpose of this amendment is to provide clarity for the new consent regime under the Maritime Area Planning Act, and to enable maritime protection as prescribed by a number of EU directives. The act makes a number of amendments in relation to the functioning of An Bord Pleanála, specifically with regard to the appointment of the chairperson and ordinary members. Particular changes have been made in light of the board's new marine functions and pursuant to the Office of the Planning Regulator's review of the board.
Finally, the Water Services (Amendment) Act 2022 provides for the separation of Irish Water from Ervia, establishing it as the sole national authority for water services to be known as Uisce Éireann. The legislation provides for a new Board and Chief Executive Officer of Uisce Éireann and revised accountability and auditing arrangements. Also published in December but at the EU level, the Revised Drinking Water Directive aims to improve the quality of drinking water and provide greater access and information to citizens in relation to this issue. The proposal for modernising the 20-year-old Drinking Water Directive (Directive 98/83/EC) comes as a result of the Refit evaluation, the implementation of the Commission’s response to the European Citizens’ Initiative ‘Right2Water’ and as a contribution to meeting the UN Sustainable Development Goals. Ireland has not yet transposed the directive.
On 6 December 2022 the European Commission, Council and Parliament, concluded their Trilogue discussions, and reached agreement in principle on this innovative Regulation. This comes one year after the pledge to halt and reverse forest loss and land degradation by 2030, signed at the Glasgow Climate Change Conference (COP 26) by more than 140 countries and where EU President Ursula von der Leyen echoed the sentiments of the Commussion's Communication Stepping up EU Action to Protect and Restore the World’s Forests said: “[F]orests are the green lungs of the earth." This is a landmark due diligence regulation, which aims to prevent commodity-driven deforestation and forest degradation in selected supply chains of the EU. Specifically, it aims to curb the EU’s contribution to trade-related global deforestation by keeping products linked to illegal production and deforestation off the EU market. Further, it prohibits the placing on the EU market of certain products if they are not produced according to the local law in producing countries, or if they have led to deforestation or forest degradation. Traders and operators placing products on the EU market, including soy, palm oil, cocoa, beef, coffee or timber, have to assure traceability to plot level, and must have proof of compliance to these new requirements. The regulation is expected to enter into force in May or June 2023, followed by an 18-month implementation period for larger stakeholders and a 24-month period for small and medium-sized enterprises ("SMEs").
Commentators have described the EU regulation as a “paradigm shift” for deforestation, moving from voluntary initiatives towards mandatory legislation. One of the pillars of this regulation is mandatory due diligence. Mandatory due diligence provides that while no country or commodity as such will be banned from the EU single market, companies will not be allowed to sell their products in the EU or export them from the EU without a due diligence statement. In this statement, companies will have to provide information to ensure that the commodities and products are first, deforestation-free, meaning produced on land that was not subject to deforestation or forest degradation after the cut-off date of 31 December 2020 (as defined by SDG target 15.2) and second, compliant with all relevant applicable laws in force in the country of production, including human rights and Indigenous Peoples’ rights laws. To enable “competent” EU authorities to verify compliance with the deforestation-free requirement, companies also have to collect precise geographical information on the farmland where the commodities that they source have been grown. A country benchmarking system, currently proving controversial, to be developed by the Commission, will “assess countries or parts thereof and their level of risk of deforestation and forest degradation.” This regulation will complement the EU's Sustainable Corporate Governance ("SCG") initiative with the SCG targeting corporate value chains generally, as well as setting out due diligence obligations.
Two further Directives which apply to corporate entities must also be considered in this context. On 5 January 2023 the Corporate Sustainability Reporting Directive ("CSRD") entered into force. With this comes a new era of sustainability reporting.
In addition to addressing the sustainability of supply chains, all three initiatives have the common characteristic of extending jurisdictional reach in an assertive way from parent company through to subsidiaries located in other jurisdictions.
"Unfortunately, the Trilogue has not led to the inclusion of other vulnerable ecosystems important for biodiversity and climate, such as “other wooded lands” including savannahs, wetlands, peatlands or biodiversity rich grasslands"
"No later than one year after the Regulation enters into force the Commission plans to reassess whether and how to include “other wooded lands”, and within two years if other ecosystems with high carbon storage and biodiversity value can be included. It is important to not only protect forests, but all ecosystems threatened by commodity trade as soon as possible."
Alberto Arroyo Schnell, Head of Policy and Programme at IUCN Europe
The delivery of offshore wind as a key source of renewable energy in Ireland remains an ongoing concern for the coming year The Maritime Area Planning (MAP) Act 2021 was amended by the Planning and Development, Maritime and Valuation (Amendment) Act 2022. These Acts provide the legislative framework to a new marine planning system, which will balance harnessing our huge offshore wind potential with protecting our rich and unique marine environment. Another piece in this legislative framework, the Marine Protected Area Bill was introduced in the Autumn Legislative Programme 2022. The purpose of this bill is to provide for the designation and management of Marine Protected Areas ("MPAs") as part of government plans to designate up to 30% of Ireland's maritime area as MPAs by 2030. The general scheme of the bill was published on 16 December 2022 and on 28 February 2023 the report on the pre-legislative scrutiny of the bill was published.
On 23 December Maritime Area Maritime Area Consents ("MACs") were issued to the first phase of seven offshore renewable energy projects. This is a significant milestone in the delivery of offshore wind in Ireland. The award of MACs ensures that only projects with the greatest viability to deliver Ireland’s ambitious energy targets can progress into the planning system. This enables all Phase One projects to begin their pre-planning application engagement with An Bord Pleanála and to participate in the Offshore Renewable Electricity Support Scheme Auction ("ORESS 1") the first auction for offshore wind under the Renewable Electricity Support Scheme ("RESS"). ORESS 1 is expected to procure approximately 2.5GW of electricity generating capacity. Phase 2 Projects are intended to bridge the gap between the volume of capacity that can be delivered in Phase 1 and the 2030 offshore target (5GW). The Selection process for Phase 2 Projects began with an Offshore Wind- PhaseTwo Consultation and a policy statement is expected in Q1 of 2023. The Department has stated that, in light of the war in Ukraine, Phase 2 will accelerate delivery which will mean using a plan-led approach, led by grid connection. A further public consultation was launched on 24 February 2023 seeking views on the draft second Offshore Renewable Energy Development Plan ("OREDP II"). This draft plan outlines the proposed criteria to identify optimal areas for development, known as Broad Areas of Interest. Finally, on 7 March 2023 Cabinet approval was granted for plans to accelerate the delivery of 5GW of offshore wind by 2030. The Department has indicated that it intends to designate two areas along the South coast and South-East coast, based on scarce grid connection. These would be subject to Designated Maritime Area Plans (“DMAPs”) to be made under the 2021 Act. The DMAPs will be progressed this year into January 2024. It has been indicated that EirGrid will consult on, and then specify, the location of two nodes into which projects will connect. Pending the outcome of the ORESS 1 auction in summer 2023, consideration may be given to designation of a third area. The adoption of a plan-led approach recognises the State’s role in creating a framework in which investment is possible, and risks within the State’s control are critical to achieving a successful offshore energy industry.
"The approach we have chosen streamlines the development process for offshore renewable energy by optimising the consenting, planning and grid development resources of the State. It represents the best opportunity to meet our ambitious 2030 climate and energy targets, while at the same time bolstering our security of supply."