I welcome everybody. The purpose of today's meeting is to resume our pre-legislative scrutiny on the general scheme of the Dublin Airport (passenger capacity) Bill 2026. On behalf of the committee, I am pleased to welcome from An Taisce, Mr. Seán O'Callaghan, planning and environmental policy officer; and Professor Barry McMullin of An Taisce's climate committee. From Opportunity Green, I welcome Ms Aoife O'Leary, CEO and founder, and Ms Sorcha Tunney, senior manager, Ireland. From Wild Ireland Defence, I welcome Ms Sabrina Joyce-Kemper. From Friends of the Earth, I welcome Mr. Jerry McEvilly. Finally, but by no means least, from Community Law and Mediation, I welcome Ms Aoife Kelly-Desmond, CEO, and Ms Justine Schönfeld-Quinn, senior solicitor.

I have some notes on privilege for witnesses. I remind them of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity, by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of that person or entity. Therefore, if their statements are potentially defamatory in relation to that identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside of the House or an official, either by name or in such a way as to make him or her identifiable.

Today is a really important opportunity to test those issues further and to assist the committee in making an evidence-based recommendation to the House.

I invite the witnesses to make their opening statements.

Gabhaim buíochas leis an gCathaoirleach as an gcuireadh a bheith anseo ar son An Taisce. We very much welcome the opportunity to appear before the committee. I am An Taisce's planning and environmental policy officer and I am joined by Professor Barry McMullin of our climate committee. It is our view that the impact of aviation sector emissions on climate has not been given sufficient emphasis in this debate. We recognise the significant role of Dublin Airport for economic activity. However, we strongly believe that the potential for emissions increases due to lifting the passenger cap demands serious scrutiny. Dublin Airport has consistently been listed as Ireland's single largest greenhouse gas emitting facility, responsible for between 2.8 million and 2.92 million tonnes of carbon dioxide equivalent annually, the same as about 1.4 million cars.

The aviation sector might argue that mitigation of emissions is being addressed via the EU emissions trading scheme and the global carbon offsetting and reduction scheme for international aviation, CORSIA. However, we have strong concerns about the sufficiency of these measures and do not accept that they are commensurate with the temperature and equity goals enshrined in the Paris Agreement. Reliance on such weak, market-based measures has been extensively criticised due to issues such as free emissions allowances and perverse incentives from carbon offsetting.

Notably, developed economies such as Ireland have an express obligation to lead the way in global emissions reductions via the principle of common but differentiated responsibilities and respective capacities enshrined in the Paris Agreement. This is increasingly urgent given that Ireland assumes leadership of the European Council Presidency this year and has reaffirmed a commitment to enhanced decarbonisation and EU emissions reduction targets during the latest COPs. However, the proposed disapplication of section 15 of the climate Act, in particular, under head 12, appears to entirely contradict these decarbonisation aims. Ireland should instead be taking the lead in ambitious climate action by strengthening domestic decarbonisation measures and advocating for greater ambition in the EU's nationally determined contributions under the Paris Agreement, specifically including aviation.

Overall, the entirely unevidenced disapplication of climate obligations in various Bills being proposed by this Administration is setting an alarming precedent for relinquishing climate action and planning controls to facilitate emissions-intensive facilities while we face a worsening climate emergency. It also increases the possibility of legal challenge. Ultimately, in line with Ireland’s climate obligations, the passenger cap should only be removed in a situation where alternative measures have already been put in place to reliably and demonstrably ensure that, at the very least, there is no increase in emissions as a result, and this condition should be expressly written into the current Bill before it proceeds further.

The aviation sector emphasises that sustainable aviation fuels are a mitigation for emissions impact by 2050. However, the ability of these technologies to be scaled up and rapidly deployed within that timeframe is highly uncertain. In general, SAFs, as the sustainable aviation fuels are called, are not climate neutral, and actual emissions vary significantly according to the type used. Even in principle, SAFs do nothing to mitigate non-carbon dioxide climate effects. Moreover, despite industry promotion of the potential of SAFs, Europe's aviation sector has been actively lobbying against a post-2030 SAF mandate which is currently under consideration by the European Commission. Furthermore, much of the focus to date has been on narrow economic aspects of the proposal. We need to take a holistic approach to assessing the economic risks and benefits, such as an analysis of outbound flights versus inbound tourism in terms of economic returns. There are also significant economic costs associated with climate change impacts and non-compliance with emissions reduction obligations, which is not being factored enough into this debate. Lifting the passenger cap will lead to additional flights and road traffic, resulting in increases in air and noise pollution, with increasing risks of cardiovascular and respiratory problems, and other health impacts, necessitating a robust health impact assessment. This also has negative economic consequences that need to be factored into such an analysis.

Regarding planning, head 5 gives the Minister powers to revoke or amend planning conditions. It is stated that this relates to the planning condition limiting passenger capacity, but we feel that the language of this head does not appear to limit the Minister’s power solely to that particular condition, leaving it open for any planning condition attached to any permission to be revoked or amended once the Minister deems it to cause serious harm to international transport connectivity or the Irish economy. We believe that this is an extraordinarily broad power with few, if any, safeguards attached. This is part of a highly problematic trend of centralising significant planning powers with a Minister while eliminating crucial checks and balances.

We also have concerns about other aspects of the procedure, such as public consultation, which only appears to be required if a full environmental impact assessment, appropriate assessment or water framework directive assessment is being conducted. Also, when making the order under this head, the language used is that the Minister should have regard to the outcome of these assessments. This would allow the Minister to disregard the conclusions of An Coimisiún Pleanála's assessments and potentially raise serious issues of EU law compliance. We would have concerns regarding multiple other provisions and multiple other issues and pitfalls which increase the risk of legal uncertainty. We again thank the committee for inviting us here today and look forward to the discussion.

I thank the Cathaoirleach and committee members. I am senior manager with Opportunity Green, which is an NGO working to unlock climate opportunity through law, economics, and policy, with a particular focus on aviation and shipping. We believe there are strong reasons to retain the passenger cap. However, whatever decision is taken, we urge the committee to be transparent with the Irish public about the consequences. The reality is straightforward: lifting the cap will increase greenhouse gas emissions. The general scheme as drafted provides broad discretion to the Minister to amend the passenger cap, removes the ability of planning authorities to impose or adjust it, and introduces an accelerated process for environmental assessments. Our central concern is the proposed exemption under head 12 from section 15 of the climate Act.

This exemption would in practice allow decision-makers to sidestep the difficult but necessary trade-offs required by climate policy.

As emissions rise, Ireland's ability to meet its obligations under the Paris Agreement and the national climate objective set out in the climate Act, will come under increasing pressure. Both the Paris Agreement and the national climate objective apply economy-wide and include international aviation. While international aviation has been omitted from secondary carbon budgets to date, it is not excluded from primary legislation. If Ireland is to meet its climate objective, aviation emissions will need to be included eventually. Without measures to limit aviation, the legislation would leave Ireland failing to adequately mitigate climate impacts and properly account for its impacts, creating a deferral problem. Future policymakers will face sharper adjustment pressures, either by including aviation later or forcing deeper cuts in other sectors.

I will now turn to the economic impacts under head 5, which allows the Minister to amend or revoke a planning condition where it is deemed to cause what is referred to as serious harm to the State's economy yet provides no definition or objective criteria. Economic analysis from the aviation industry is often partial, overlooking the real costs of climate change to communities, ecosystems and public finances. The issue is wrongly framed as a choice between unlimited growth and economic catastrophe. It is entirely possible to manage aviation's growth and climate impact while supporting a strong economy. Research by the New Economic Foundation shows that in regions including Ireland, aviation growth is mainly driven by rising incomes and increasing outbound rather than inbound travel, meaning expansion can reflect greater spending abroad, not a net domestic gain. In Ireland, we have a persistent travel deficit which reached €5.2 billion in 2023. That means more people leave Ireland to go on holidays than come here. The committee should require an independent, evidence-based assessment that fully accounts for climate impacts and considers the full travel balance.

At present, Ireland has no credible strategy to address emissions from aviation growth. A first step for Ireland would be, in its role as president of the Council of the European Union, to address this by including international aviation flights in the EU emissions trading scheme, ETS. Currently, emissions from international flights remain unaccounted for. This means Irish families flying to Spain for a holiday already pay for their emissions, while those flying to New York or further do not. This gap exists partly due to political pressure and legal threats, including from US airlines, and some of them were here before the committee recently. If the legislation proceeds, it must be accompanied by clear targeted pathways to aviation decarbonisation.

We also have concerns, like An Taisce, regarding the environmental assessment under heads 6 to 8, inclusive, which looks to us to fast-track environmental impact assessments, EIAs, weaken planning safeguards and require full assessment only where screening identifies significant effects. Current EIAs only consider emissions from take-off and landing. Any assessment must include emissions from the increased number of flights across their full journey.

This legislation presents a clear choice. Lifting the passenger cap will increase emissions, undermine Ireland's climate targets and shift the burden onto other sectors and future generations. The economic case for expansion is one sided and ignores the full cost of climate change. The committee's decision will have real and disproportionate consequences for Irish people and climate-vulnerable populations. This decision is not just about capacity; it is about Ireland's commitment to climate responsibility. I thank the committee for its time.

I thank the Chair and members of the committee. At the outset, I had to consolidate my opening statement, so it may not be exactly as it reads for members before them.

I thank the committee for the opportunity to address it here today. I am appearing on behalf of Wild Ireland Defence, WID, as its planning and environmental consultant. WID's advocacy is focused on ensuring development and decisions are in strict compliance with Irish and EU environmental legislation and in upholding the integrity of the statutory planning system.

At the outset, we would like to correct the record on two statements made during these pre-legislative proceedings. First, the passenger cap has only been stayed by a court for the purposes of the IAA decision on airline slots. It is still in full operation for the purposes of planning enforcement. This was confirmed by Mr. Justice O'Donnell when granting the stay for the slots, who stated that any order made by the court in the application only applied to decisions made under the slot regulation and that any order made by the court did not and could not suspend the effect of any planning conditions.

Second, a comment was made by a DAA representative regarding the 2019 planning application to increase the passenger cap to 35 mppa. During those proceedings, the DAA stated that the feedback it received from the planning authority was that it was not in a position to progress with the consideration of the runway application. This statement is factually incorrect as Fingal County Council has a statutory duty to progress all valid planning applications made to it. I have provided the Chair and the committee with the letter of withdrawal from the DAA to Fingal County Council in 2020, which confirms that DAA plc stated that the proposed increase from 32 mppa to 35 mppa was not required in the short term due to reduced passenger numbers relating to Covid and that any future growth would be pursued through a future planning application.

WID is not opposed to growth at Dublin Airport provided it is achieved lawfully and sustainably. While the 32 mppa cap originated from surface access constraints linked to Terminal 2, it has since become embedded in environment and public health assessments as a key mitigation measure. It now operates as a key environmental, infrastructural and operational capacity constraint, not merely a transport condition, as confirmed by the Advocate General Manuel Campos Sánchez-Bordona.

An increase in passengers drives proportional increases in emissions, ultrafine particulates, wastewater, water demand, general waste and associated logistics such as transport, energy use and aircraft servicing. It also increases aircraft movements, de-icing, fuel and chemical discharges and pressure on transport networks and infrastructure. Unless we are proposing passengers arrive without using transport, do not consume food or water, do not use sanitary facilities and aircraft operate without de-icing or servicing, these environmental consequences are inherent and unavoidable.

The 32 mppa cap was imposed as a condition of planning permission by An Bord Pleanála. That cap has been breached and exceeded in the years 2019 and 2023 to 2025, inclusive, to the extent of nearly 9 million passengers. The total financial gain to the DAA relative to those airport charges per passenger is over €72 million.

Head 4 proposes to remove the passenger cap, which forms part of the environmental mitigation underpinning consent. Its exceeding constitutes development beyond consent, and under section 34 of the Planning and Development Act 2000, it could not be retained where an EIA, an appropriate assessment, AA, and a water framework directive assessment would have been required. Legislative removal of the cap risks regularising unauthorised development outside of the substitute consent regime. This approach is contrary to EU law. In Commission v. Ireland, the Derrybrien wind farm case, the court held that unauthorised breaches could not be remedied by domestic measures such as this. That circumvents EU obligations. The cap is central to live enforcement and court proceedings at the moment, and its removal risks interfering with those processes and altering multi-functional environmental safety reassessment.

Head 5 allows the Minister to alter or remove the cap by order, but increasing capacity constitutes a material intensification, requiring assessment under EIA and AA, as confirmed in CJEU case 50/09. Without a defined cap at all, environmental assessment becomes impossible. A ministerial order bypassing cumulative assessment, participation and appeal may not actually constitute development consent and risks breaching the EIA directive and Aarhus Convention.

Heads 6 and 7 require cumulative assessment under the EIA and AA regimes. Existing assessments across Dublin rely on the baseline of a capped airport. Removing that cap alters the baseline without reassessment, potentially invalidating mitigation measures on other planning consents.

Head 8 engages the water framework directive, which strictly prohibits deterioration. The airport lies at the headwaters of multiple rivers with recorded PFAS contamination due to airport operations. Removing the cap increases risks in a regime where deterioration is simply not permitted.

Head 10 redefines operation restriction as noise only, reflecting EU aircraft noise regulation 598/2014 which solely applies to noise management. The passenger cap is not noise only but a broader environmental control, as confirmed by the Advocate General. This head risks excluding wider environmental impacts and weakening protections.

WID is concerned that Head 11(17) and (18) undermine the right to an effective remedy by removing appeals to the higher courts. Any limitation on standing in head 11 is inappropriate, given the national and international environmental impacts of airport emissions, and this would be inconsistent with EU environmental law which requires wide access to justice. The Bill engages Regulation (EU) 598/2014 which statutorily requires a right of appeal to an independent body for operation restrictions. The absence of such a mechanism, with review confined to judicial review only and on a merits review, removes the required merits-based appeal.

The conclusion is that any change to airport capacity must proceed through the statutory planning system with full environmental assessment and public participation. This Bill circumvents those requirements and undermines environmental protection and the rule of law.

Friends of the Earth does not support the removal of passenger cap taking account of this general scheme. On climate and energy policy, while international aviation emissions are not currently included in national carbon budgets, the State's obligations remain clear. Ireland is legally required to achieve a climate neutral economy by 2050. This objective cannot be met if no limits are placed upon high emitting activities. The Department has suggested that the cap was not introduced as a targeted climate measure. While that may be true, the original intent is irrelevant. What matters are the practical effects of its removal. The passenger cap functions as a de facto mitigation measure. Any removal would require the Government to implement equivalent alternative actions to reduce emissions, as has just been noted by An Taisce.

This general scheme also risks exacerbating pressures on infrastructure. Recent parliamentary questions have highlighted constraints in electricity grid capacity at Dublin Airport. It is our understanding that electricity forecasts do not explicitly account for, or are not clearly aligned with, passenger growth beyond the existing cap. The additional electricity demand associated with expansion to 40 million-plus passengers should be fully assessed. Unco-ordinated demand growth could impact capacity needed for housing and services in north Dublin. This point also applies to transport infrastructure where vehicle use to and from the airport will increase unless supported in advance by significant public transport capacity, particularly through MetroLink.

The scheme's most serious flaw is head 12, which seeks to disapply section 15 of the climate Act. Section 15 requires public bodies, including the Minister and the Dublin Airport Authority, to perform their functions in a way that is consistent with national climate policy. The Supreme Court's recent decision in the Coolglass case reaffirmed that section 15 is an enforceable legal obligation requiring relevant public bodies to give meaningful consideration to climate obligations when exercising their statutory functions. In seeking to disapply section 15, the Government has sought to create a legal loophole to circumvent the duty that the Supreme Court concluded is a binding requirement. As this committee has already highlighted, if the proposed expansion was fully compatible with climate law, there would seem to be no need to seek to exempt it in the first place. The only reasonable interpretation, therefore, is that the Government is aware that removing the passenger cap is likely to be inconsistent with climate obligations and is attempting to preclude legal challenge. In this context, disapplying section 15 risks undermining the rule of law. It also sets a dangerous precedent that the Government may seek to exclude obligations where they are considered inconvenient for a particular industry.

Such disapplication would also weaken the State's ability to positively support the sector's transition. Section 15 also constitutes an enabling framework through which the Government can facilitate future measures and investment in support of climate objectives, such as providing for zero emission fuels or prioritising zero carbon energy at the airport. In this way, the proposed exemption risks eroding the State's capacity to not only limit aviation emissions but also guide the sector's transition. Disapplication would also create a deliberate policy inconsistency. The State's action plan for aviation emissions reduction and the Dublin Airport carbon reduction strategy both identify the climate Act and the climate action plan as elements central to their delivery.

Regarding legal risk, when recently addressing the committee, neither the DAA nor the IAA suggested that the issue of compliance with climate law was a concern. However, the Department confirmed in response to committee questions from Deputy O'Gorman that head 12 has been proposed on the basis that climate assessment requirements could elongate the decision-making process and could give rise to a risk of judicial review regarding compatibility with the climate Act. When neither the operator nor the regulator have identified the climate Act as an obstacle to their operations, the Government's move to disapply it raises legal concerns regarding its proportionality and justification. Legislative disapplication of a statutory duty, particularly one forming a core part of the State’s climate governance framework, should only be justified where there is clear evidence of a substantive conflict. Disapplying section 15 to avoid legal scrutiny may be vulnerable to challenge as a disproportionate measure and an unreasonable attempt to circumvent national and EU law.

We also have concerns that this approach may risk breaching the Minister for Transport's obligation under the climate Act as a relevant body. Under section 15, the Minister for Transport is required to exercise functions in a manner consistent with the national climate objective and associated policies and plans. The preparation and enactment of legislation is itself a core ministerial function. A scheme that facilitates increased emissions by removing statutory oversight is inconsistent with that duty. The Minister cannot claim to be bound by climate law while proposing legislation designed to circumvent it. Recent developments in international law reinforce these concerns. The advisory opinion of the International Court of Justice affirms that states have a binding duty to take reasonable measures to prevent climate harm, including regulating high-emission activities within their jurisdiction. By removing the passenger cap without alternative safeguards, the Minister would effectively exempt a high-emission sector from necessary oversight.

The choice before the committee is whether international connectivity in Ireland is pursued in a way that supports the rule of law and climate action or undermines both. Friends of the Earth urges the committee to reject head 12 and to call on the Government to pause the progression of the Bill in order that an updated analysis of emissions associated with the passenger cap can be undertaken. The committee should also take note that the proposed exemption in head 12 follows a separate but similarly problematic provision in the Government’s proposed strategic gas emergency reserve Bill, which has been strongly and comprehensively rejected by the Joint Oireachtas Committee on Climate, Environment and Energy in its recent pre-legislative scrutiny report.

Community Law and Mediation’s centre for environmental justice is Ireland’s only community law centre that is dedicated to pursuing a socially just and ecologically sustainable society. The general scheme claims to support the sustainable development of Dublin Airport while balancing EU law, residents’ rights and the needs of business and tourism. In reality, however, the approach being taken in the Bill is anything but balanced. The Bill consolidates power in the Minister while curtailing the normal checks and balances for decisions of national significance. Further, the structures that are set up by the Bill would undermine the ability of the Minister to make fully informed decisions by unjustifiably limiting public participation and sidelining climate and environmental considerations. This is reflected in the public consultation on the general scheme which ran for just seven days, raising serious questions concerning compliance with the directive on public participation, implementing the Aarhus Convention.

It is striking that the introductory paragraph sharing the general scheme does not refer to considerable climate impacts as a factor to be included in reaching a balanced decision. While the rights of local residents are referenced, it is difficult to understand how these community voices will be respected in the context of proposals that would significantly restrict public input and access to justice. There is a notable absence of any consideration of the wider public interest notwithstanding that decisions concerning carbon-intensive infrastructure, such as an airport, by their nature give rise to impacts that extend well beyond the local area. These issues cannot be neatly separated and packaged as the Bill appears to attempt.

In the interests of time, we have focused our remarks on heads 11 and 12. Turning first to head 12, as many of the other witnesses today have also said, we are deeply concerned with the proposal under head 12 to exempt the functions or exercises under the Bill from section 15 of the climate Act. Section 15 requires public bodies to perform their duties in a manner consistent with Ireland's climate policies. In the recent Coolglass decision, the Supreme Court describes section 15 as a "form of climate sense check". Section 15 does not oblige public bodies to put climate considerations ahead of all other considerations, such as economics, connectivity or security. It merely requires that our climate Act and policies are considered when decisions are made. No satisfactory explanation has been given for disapplying this fundamental safeguard on Ireland's national climate obligations. We are concerned that it will not improve the quality or robustness of decisions that are made under this Bill. On the contrary, it risks limiting the information and perspectives that are available to the Minister as he makes critical decisions under this legislation that will impact current and future generations.

Regarding head 11 on judicial review, we note that the validity of any order made by the Minister for Transport under the Bill or any failure of the Minister to carry out a function under the Bill can only be questioned by way of judicial review. This forces those concerned with ministerial action or inaction to resort directly to the High Court, with all the associated cost and delay, rather than allowing for any statutory framework for appeal or oversight as exists for other planning decisions. Head 11(5) goes on to restrict judicial review in this context beyond its well-established principles, including by limiting timeframes, establishing unclear and untested standing requirements and severely limiting the right to appeal a decision to the higher courts. These restrictions on access to justice will particularly impact the underserved communities that are impacted by the decisions that are made under this Bill while presenting much less of a burden for corporate interests who can more easily access lawyers to bring complex High Court cases in very short timeframes. The reasoning behind these proposals is unclear and not well-evidenced. Undermining the ability of the public to hold the Minister to account for the exercise of his functions does not improve official decision making.

As has been raised by other witnesses, the proposals under both heads 11 and 12 are part of an emerging trend to erode public scrutiny of official decisions through restricting access to judicial review as is proposed under the current civil reform Bill and to disapply the section 15 climate sense check as is proposed in this Bill and in the critical infrastructure Bill and the strategic gas emergency reserve Bill.

As our climate crisis continues to worsen, it is critical we face up to the reality of the climate consequences of our decisions. Instead, the general scheme proposes to legislate for a head-in-the-sand approach to climate. Consolidating power with limited public oversight will not improve decision making. This Bill would have far-reaching consequences on present and future generations. Vital legislative safeguards must not be abandoned.

I thank all the witnesses for their opening statements. I will now invite questions from members in line with today's rota. Deputy Darren O'Rourke is deputising for Deputy Pa Daly. Deputy Shane Moynihan, the Leas-Chathaoirleach of this committee, is online.

I am first on the rota today. I will begin by asking our first four witnesses, beginning with An Taisce, if it is their fundamental position that the cap should not be lifted at all or that it should only be lifted with certain conditions? If the latter, what are the conditions that are non-negotiable?

Our official policy on aviation is that we recognise its importance for Ireland, particularly as an island nation, as I said in our opening statement. However, it is important to acknowledge that aviation comes with significant climate impacts-----

Time is limited. It is a really specific question. Is it the position that the cap should not be lifted under any circumstances or that it should be lifted under certain conditions? What are the non-negotiable conditions for the organisation?

The non-negotiable conditions are that it needs to be demonstrated that emissions will not increase despite what is implemented. We are not in favour of an emissions increase. That is our non-negotiable condition.

If we were starting from the beginning we would not have this cap. We would have a better system in place. We would have to do as we recommended, namely, an economic assessment. Schiphol Airport did an economic assessment and decided to cap – reduce – aviation because the cost, when they looked at climate impacts, was higher. We have to think about the economic impact. There is also the greenhouse gas emissions and how we mitigate them. We have an aviation strategy from 2015 that needs to be updated. I think it is with this committee. What are our plans? We need to look at the ETS but also make sure there is an international system in place. It is not the only measure - there are other measures - but we definitely see policy as the answer. We do not think there should be unlimited growth in aviation. There are other ways to get to this island but we recognise the difficult decision. It is a case of lifting with a lot of mitigation, potentially looking at better ways in the aviation strategy but also really understanding the economic impacts of this, because it is not the one-sided evidence the committee has heard. There is a lot of other research that points to other impacts and costs.

My contention or that of Wild Ireland Defence does not really come into it because the legal framework set out in Irish and European law is that if unauthorised development exists, as it does in this case because the airport has knowingly breached the cap over four years, then there is only one route for it to take and that is substitute consent, and that came down from the European Court of Justice in Derrybrien. At the moment the only way the cap can be removed is through a legal process. We are not against it being removed but it has to be done within the law. The Government cannot use this legislation to circumvent the laws that exist because those laws are there to protect public health, environmental health and our infrastructure planning because we cannot plan if we do not do it properly. It needs to go through the proper processes. At the end of the day, that is the baseline.

We fully agree with what Ms Joyce-Kemper said. We are not opposed to growth in itself but it must be done lawfully and sustainably, as she said. The issue is that the proposal in the general scheme is to remove the passenger cap, but there are no other conditions, limits, caveats, policies or plans equivalent to it to be put in place that would ensure a reduction in the emissions that would be created as a result of the passenger cap being removed. That would be condition number one. Condition number two, as we already outlined, is that section 12 raises a range of legal issues and risks. Disapplication of climate law is fundamentally problematic. The rationale for this seems to be that judicial review would cause undue delay which would be entirely unacceptable for the airport. We contend, as a number of NGOs have raised here today, that there are so many legal risks, problems and gaps in what the Government has put forward that raise the potential for legal challenge which could result in delay to what the Government wants to do.

To follow on from that, Mr. McEvilly says the Bill will be subject to significant legal challenge. Which provisions are most vulnerable?

Our particular concerns are about the proposals in heads 11 and 12. Taking a step back from that, it starts with the broad nature of the power that is being consolidated in the Minister under head 5. Where we see the most concern in terms of legal process and due process is that, when you have a consolidation of power like that, it is even more crucial to have safeguards in place to ensure the power is exercised correctly and that it takes into consideration the very broad and complex factors the Minister has to consider. Our particular concern with this Bill is that it is set up in a way that seems very much to foreground particular considerations of economics and connectivity while sidelining what are also very important concerns of climate and the environment. Even more, it foregrounds the EU law requirements that the Minister is subject to while sidelining the climate Act the Oireachtas has put in place in Ireland to achieve our climate objectives. That would be our particular concern with the exclusion of section 15 and that it will create complexity.

Section 15 is a very clear duty. It applies to every public body in the exercise of every function they have. Excluding it in this very piecemeal way will erode that clarity and makes it difficult to understand how this will work in practice. Those same public bodies which were told they should not consider the climate policies when exercising functions related to this Bill will still have to comply with their section 15 obligations in every other function they perform, which will include downstream decisions which are impacted by things that are done under this Bill. It creates a complexity and a legal uncertainty that we say is very unhelpful. We note that, at an earlier committee hearing, a Department representative said the exclusion of section 15 was being proposed for the avoidance of doubt, but we would say that excluding section 15 in this way does nothing but create doubt and uncertainty and is fundamentally misconceived.

To add to the question of legal uncertainty, it is important to note there has been a series of decisions on EU legislation on different infrastructure that can have climate impacts. It is very clear now that the full scope of emissions must be considered. While it is not necessarily related to the Bill before the committee, we need to note that any environmental impact assessment must look at the full climate impact. That is the full flights. To date, most airport environmental impact assessments have just looked at the emissions from take off and landing, as if the rest of that flight was someone else’s concern and was not related to that airport. That is one thing that must be considered. If that is not done in the environmental impact assessment, then it will be out of step with European Union law. That could lead to potential further litigation and delay.

If the committee were to proceed without taking on board the witnesses' key concerns, what would be the legal, environmental and economic consequences?

I would like to point out that, at the beginning of this session and when we were asked to write our opening statements, we were told we had to be very careful about mentioning live court cases, yet this Bill seeks to materially interfere with court proceedings that are live in the Court of Justice of the European Union and in the High Court, with planning enforcement cases that are live with Fingal County Council and with a number of other areas where the cap is in force. This Bill will directly affect those live cases.

I think the Bill will be judicially reviewed, that it will go to Europe and it will fall in Europe and we will be back to square one trying to deal with an issue at the airport, which is how we can grow economically while being sustainable and compliant with the law. While we are able to ventilate all the issues at these proceedings, we will just find ourselves back at square one in about 12 to 24 months' time.

If I could come in on the economic consequences, it is important to note that there has been a narrative driven by the aviation industry for many years that aviation just leads to growth and there is no question there. That is now absolutely debunked and it is clear that it is not true. Sometimes, some aviation leads to growth, but it does not in Ireland and independent analysis has shown that. Ireland is essentially a saturated market for aviation. That means additional flights are actually driven by additional GDP in Ireland, people having money and wanting to go abroad. Business travel has declined in the entire of the EU, including Ireland, since 2016. That means additional flights from Dublin Airport should be for leisure. That is not to say Irish people should not go on holiday; best of luck to them and I appreciate people want to do that. However, it is really important to note that and be really honest and clear about those impacts. Ireland has a travel deficit, as Ms Tunney mentioned. Irish people spend more money abroad on holidays than tourists coming into Ireland spend here. We are actually going to build infrastructure to spend more money abroad. In addition to that, aviation does not pay fuel tax or VAT. For an average family, if they are thinking about spending their money locally in the economy, they will pay an extra 20% and it will look 20% more expensive to spend their money locally than if they are purchasing a ticket to fly abroad.

On environmental impacts, I will focus on the climate impact in particular. This Bill deals with removing the passenger cap, which would inevitably lead to increased greenhouse gas emissions associated with airport activities. Our concern is not just with the increase but also with the existing level of emissions from the existing level of traffic at the airport. The fundamental challenge for all of us here is that we have no coherent national policy about how aviation emissions are going to be mitigated at all. We are simply assuming that somewhere else, somebody else in the world, is going to address this on our behalf and we will respond to that. That would be fine were we not in the crisis we are in. Everybody in this room knows we are signed up to the Paris Agreement, Article 2 of that agreement, and the temperature goals which the ICJ has confirmed as 1.5°C above pre-industrial levels. For all practical purposes, that warming level has already happened. It is not something in the distant future. Every tonne of aviation fuel burned at this point is a part of the environmental space that is being taken from our children. It is no longer available to them. We are placing on them an obligation to somehow find a way of getting that greenhouse gas back out of the atmosphere.

I thank all the witnesses for their very interesting submissions. I am continuing in a similar vein of question to the Cathaoirleach. Our guests have very well articulated their position and concerns about the Bill and its potential implications. I think I heard from all of them on the principle of removing the cap and recognition for sustainable growth, not exponential growth, in terms of aviation. What does that policy, regulatory or legal framework look like? Is there scope to craft legislation here that does what they are seeking to do? Is it the wider aviation policy that needs to be moved?

For us, I do not think it is a matter of drafting new legislation, although I have not thought about that. In the UK, they similarly have a climate Act that excluded international aviation from their carbon budgets. Recently they created a carbon budget for aviation and international aviation that will start from 2033, I think. That is a good way to look at it. We have no carbon budget for airports or aviation. We need to look at how we can mitigate those flights. Simply removing the cap with no guardrails, measurements or understanding----

To frame the question a little bit differently, Professor McMullin stated that there is no coherent strategy in the State. What does a coherent strategy look like?

To my mind a coherent strategy would look like measuring the emissions and looking at economic costs.

Schiphol was mentioned. Is that an international model that they used for assessing the wider impacts?

They wanted to have a real understanding of what the climate costs were. We talk about them, but it is in order to have an understanding of what that meant congestion-wise, healthwise, for local communities, and for buying and retrofitting houses.

We could literally lift that model of assessment and apply it in Dublin Airport.

It is done by CE Delft, one of the most renowned international aviation experts. From that, they actually reduced their cap. When the Deputy is asking what we should do legislatively----

That pushed flights to other regional airports and that type of thing.

It is a very small country. There are some flights that go regionally.

Rotterdam, I think, and other places. It is an argument. The previous transport committee was interested in Shannon Airport and specifically went to Schiphol because they were aware of this. A consequence of an economic assessment like that might say that we should better use our regional airports.

The New Economics Foundation conducted research that looked at 274 airports and countries. They found that Ireland was within that saturated group, as Ms O'Leary mentioned, and that even our regional airports are saturated. If we increase access to regional airports, those people are leaving the country. When we look at time spent and money spent in respect of local tourism, I think we have to hear that other side around tourism. It is really impacted. If we look at Airbnb and the cost of housing, we see the impact. If we are going to look at what guardrails are to be put in, we need to look at what growth actually means.

Just to finish out that question, did that Schiphol model look at all of that?

Yes.

It is a good model that we could use here. It might conclude various things in an Irish context, for example, additional caps, more public transport or that we should be focusing in internal tourism.

If I could add one tiny thing to that, Schiphol supports international aviation going into the emissions trading system. It is really important to mention that while we have a cap on inter-EU flights, we do not have anything for international flights. That is a clear moment because there will be legislation on that at EU level this summer from July. I would suggest one very clear recommendation from this committee could be that Ireland's position in the EU should be that international aviation should be included under an EU cap in the emissions trading system.

Is there a basis for any inclusion of reference to that in the legislation? Is there scope for including any of that or is this more for the Irish Government to move on?

In the general scheme?

No, I mean when we see the legislation.

The legislation currently does not reference that at all.

Would it be a recommendation? Is that the type of thing we include in legislation? It is an open question. I am hearing not really, no. It is just an ask of the Irish Government.

It is already in place under environmental assessments. EIA and AA would require that information to be scoped in and the impacts to be scoped in to any assessment. It exists already; they are just not putting the appropriate information in there.

I used the phrase "coherent strategy on mitigation of aviation emissions" in regard to that. Conceptually, we certainly agree that bringing international aviation and shipping into the scope of the domestic carbon budget framework would be a very positive step. What that would then lead to in terms of aviation strategy is a separate question. We would have to know what the budgets were, how they would be distributed and so forth. We would suggest that the first step would actually be to engage with the statutory body that is charged with this sort of work, the Climate Change Advisory Council, and ask them for advice on how to proceed. That should be done before removing the cap. Similarly, the Deputy asked about the role of international flights and the EU ETS, whether there should be reference to that in this Bill or how that might be done. In our view, the appropriate approach there is that you do not enact this Bill until after that issue at EU level is resolved.

That is something that definitely could be included in the Bill in respect of the commencement of the legislation.

You could put into the Bill that it cannot be commenced until international flights have been incorporated into the EU ETS.

I presume we could do the same in terms of the types of assessments that we want. The Schiphol one is an example. I presume we could put into the legislation that certain things are going to happen before this Bill commences.

Ms Joyce-Kemper mentioned the issue of substitute consent and referenced the Derrybrien case. Will she explain that point to me?

There are a couple of layers to this. Under Article 4(3) of the Treaty on the Functioning of the European Union, TFEU, sincere co-operation is required by all countries to comply with European and environmental law. Ireland was brought to task because there was unauthorised development at Derrybrien that had not been subject to environmental impact assessment, EIA, and appropriate assessment, AA. A case was brought stating that no regime was in place for dealing with unauthorised developments that had taken place illegally without proper assessment. The regime that was brought in was the substitute consent regime. That is where something has happened. It is a very strict regime. You cannot just use it willy-nilly. You have to have a good reason for using it and you have to adhere to different criteria to be allowed to go through that regime.

The difficulty we have is that in 2019, we first breached the cap, which is a planning condition. Anything after that cap of 32 million - I think it was 600,000 passengers in the first year - has not been assessed in any way, shape or form for the impacts from those additional passengers on wastewater, etc. It continued on then. The DAA put in planning permission that year but then withdrew it the following March. One of the issues was that it was asked for quite a lot of substantial information because it had not put in enough information to allow the planning authority to be able to properly proceed. It then breached in 2023 and again in 2024. Each time it went up exponentially to 1.2 million, 2.2 million and 4.4 million. The DAA knew that it was breaching it and nothing was done. I do not know why because it is such an important issue. We have reached a stage now where if there is unauthorised development, under the current law, section 34(12) of the Planning and Development Act, a planning authority is precluded from even hearing a planning application. That is one of the grounds that is currently on some of the live applications in An Bord Pleanála at the moment, which is why this legislation is so concerning.

This legislation will go to Europe and Europe will say what we are doing is introducing domestic legislation to circumvent the obligation to have proper assessment on consents, and that we can only deal with unauthorised development that has happened unlawfully in a certain way, which circumvents the way that Ireland has identified to Europe. This is the serious situation that we are in. It has to be addressed that this legislation circumvents it. I have a very strong feeling that if this goes to the CJEU, that is exactly what it is going to say to us.

The committee can raise those concerns and get the advice of the Department in terms of what assessment it has.

Absolutely. The committee can put any questions together to myself and WID. We would be happy to answer them. If the Deputy wants to forward those answers on to the Attorney General for legal advice, we are happy to do that as well. We just want to see that it is done properly.

I thank the witnesses for coming in. It is so refreshing to hear their side of this. We have had different groups coming in. It is overwhelming that there is a huge amount of support for lifting the cap. It is fantastic to hear. I very much agree with the witnesses. Our role is that we have to produce a report at the end of this. I would love to see how the evidence the witnesses have given today can feed into that report.

I am interested in our upcoming role with the EU Presidency and the inclusion of aviation and trading systems. It was astounding that the American airlines were completely averse. They did not want to hear anything about that. Particularly within our role and the EU Presidency coming up, how can we ensure that this is discussed and pushed further? From Schiphol, did it produce alternative safeguards? After the environmental and economic impact, was it listened to? The witnesses said the cap was reduced, but were alternative safeguards put in place? I am just wondering about that.

I will talk about the cap. Schiphol looked at two scenarios - one of over 550,000 passengers and 460,000 passengers in the second scenario - the impacts and what it would gain economically at 550,000 and at the lower rate. It sounds counterintuitive, but what they came out with was that reducing passenger numbers was an economic gain, whereas with the higher rate, because they were paying out so much more in other costs, it was not worth it for an extra one flight a day.

Was that with climate emissions targets? Is that what they were thinking? Fines and-----

Yes. They have put a cap on it. It was challenged in the court. I think the airlines mentioned that it was challenged when they were in front of the committee. The court has said that it ruled against it, but the Dutch Government is keeping it because it knows it will challenge back. It is kind of the opposite. It has kept it. I do not know about mitigation.

They support and fully endorse international aviation to go into the emissions trading system because one of the things they recognised, as Deputy O'Rourke mentioned, is that Schiphol in the Netherlands is surrounded by other potential airports. They see that it needs to be a coherent EU strategy as opposed to just them doing it.

The other thing to mention is there is a passenger tax in the Netherlands. It is not very big, but at least there is one. There are no taxes whatsoever on aviation in Ireland. We did have it for a few years during the crisis from 2009 to 2014. It was just €10 a flight and generated quite a lot of revenue. It did not reduce passenger numbers, but you can take that as a pro or a con because it generated a lot of revenue-----

It can be put back in. Would the witnesses recommend that we include that in our report? Has it been proven in other countries to have fed back in, in trying to meet our own climate targets?

The largest passenger tax in the world is in the UK and UK aviation is thriving. Heathrow is trying to expand and all the rest of it. Again, there are pros and cons as to that. The economic analysis of how much tax you would have to put on aviation to reduce passenger numbers indicates it would be quite high because a lot of flights are quite inelastic. They are already very cheap, which again comes back to there being no fuel tax or VAT. Compared to other services you would buy, they are much cheaper.

That was not recognised by the airlines. When the issue of carbon tax was raised, it was certainly not recognised that they are exempt from it.

We have analysis on taxation of Irish aviation that we can share with the Senator. We suggest to this committee that something around taxes and the emissions trading system - potentially both - in the committee report would be good.

Key to this taxation process is the equity measure and ensuring that the funds raised which are significant - our modelling looked at the UK system and applied it in Ireland and it could be up to €1 billion a year - are recycled back into climate finance and a retrofitting process. If we are not going to stop flying, we have to bring emissions down by using the recycled revenue for a climate action return.

There are a couple of things we could do during the European Council Presidency. The EU ETS has been effectively put on hold pending a report on how effective the carbon offsetting and reduction scheme for international aviation, CORSIA, is, which has many issues of its own. The UN International Civil Aviation Organisation that is responsible for formulating CORSIA is dominated by aviation and sectoral interests. It watered down initial baselines and watered down its targets as a result. In that sense, this general scheme could be premature pending that European Commission report on the effectiveness of CORSIA. That will be forthcoming at some stage in the next couple of months or later in the year. Alongside that, for 2025, the nationally determined contributions that the EU put forward for the Paris Agreement only had 70% sustainable aviation fuel targets for 2050.

I was going to ask Mr. O'Callaghan about that.

That leaves 30% fossil fuel usage for aviation in 2050 when it is supposed to be net zero. The Irish Government could actively be lobbying to rectify these kinds of issues.

Pressing for it to do that could be an outcome of these proceedings. We have a great opportunity with the European Council Presidency to raise these issues.

It is astounding that, within the tourism sector, there is no recognition that Irish people spend so much time going abroad. I do not know who brought it up - maybe it was Mr. O'Callaghan or Professor McMullin - but I would like to ask about SAFs and the reality of those. How effective are they? They seem to be used as an argument all the time by the airlines. They say they are using this, transitioning to that or that something is a great opportunity for Ireland. I do not know if anyone wants to speak about that.

SAFs are extremely useful as a technique for delaying the mitigation of aviation emissions. That is their primary function. It is a bit like carbon capture and storage in the wider energy sector. They have not had any material, practical impact on the ground to date, but the possibility that they might in the future is used as a rhetorical argument against taking action now. That is completely reversing cause and effect, though. One can say we will have jam tomorrow or we will have SAFs in 2050 - not even the full amount of SAFs in 2050. The climate does not care. The atmosphere does not care. It responds only to what we actually do, and what we are actually doing is burning fossil fuels. Really, the technical approach or the technical solutions to aviation emissions are very few. Effective mitigation of aviation emissions over the next 20 or 25 years will be some combination involving constraining aviation demand, whether we like it or not. Aviation is one of the most inequitable forms of consumption on the planet.

I know it is difficult because we are an island. I completely agree with Professor McMullin, but that is why there is such lobbying from airlines. They say we are an island.

If we were honest about SAFs, we would be supporting a much stronger SAF mandate at European level and a much more aggressive SAF mandate. For that to be delivered-----

What would that look like?

It means an earlier, higher proportion of SAFs with a particular focus on the so-called eSAFs. The bio-SAFs have hugely negative environmental consequences. The eSAFs are the ones that are produced by synthesising kerosene, essentially using zero-carbon electricity, if you can get hold of it. The problem is that right now there is so little availability of low-carbon electricity to make SAFs that there is very little absolute availability, and even the availability that there is is relatively expensive. If the airlines were forced to achieve those SAF levels, they would have to pay what it cost. They see that as impacting their bottom line and they are absolutely correct, but there is no way of squaring that. As I said, the atmosphere does not care so, from a political point of view or a policy point of view, that needs to be addressed. It needs to be addressed at the political level but, actually, the wider societal understanding of this is-----

One would hope that the environmental impact statements would all come in together.

Professor McMullin is completely right, but the environmental impact assessments specifically state that, when a decision is made, you cannot rely on future mitigation measures. Under the habitats directive, you cannot rely on future mitigation measures. You have to do your assessment based on the actual, on-the-ground situation. Then, based on that assessment, you decide what mitigation measures we need to feed in to ensure there will be no impact on public health in terms of water and emissions. We have to remember as well that if this cap is removed, essentially what we will see is that the burden on public health and remediation will be shifted to the taxpayer and away from the DAA. If it were done properly, the DAA would have to pay for the mitigation measures that would be required to operate the airport in a lawful and sustainable manner. If the cap is removed and we do not quantify that, all of those costs get pushed into the public purse and we have to pay for the impacts that occur. That is very important to note. You may not use the airport but you will have to pay for it through your taxes.

On the EIA process, one thing that is clearly instructive and quite novel in this general scheme is that the Minister makes a planning decision. Typically, planning decisions are not made by one person; they go through specialist planning authorities. The EIA in this context will be performed only if the screening identifies that it is necessary. That is the process during which the public have a voice so, essentially, the public also are being sidelined in this process.

It is a total outlier. It is completely different from other policies. We are supposed to be working together on our policies on our climate commitments. I started learning about this myself only from coming to these briefings. It just seems to be totally exempt.

One concern I would have on that is where a precedent is created of ministerial intervention in planning. It should be recalled that, typically, the Government sets general policy and guidelines and Ministers have some powers. I note in particular section 30 of the planning legislation, under which the Minister for housing is barred from commenting or intervening in a planning decision. That is the existing framework. When a new framework is created, there is a great temptation to use it again.

Across the board.

We see with this legislation that there are rules on judicial review, for example, with an eight-week time limit, that limit public access to justice. Those provisions are found in other forthcoming Bills and in the Planning and Development Act. Once there is a new approach to something, there is then a temptation to use it again, so we will probably see other general schemes that have ministerial power in relation to planning decisions, and I do not think that is a positive development. The system that exists involves an independent agency, an appeal process and so on. On the accountability side of the decision, because the Minister makes the decision, the means of challenging or reviewing that do not allow for any administrative review of the decision either. There is judicial review only under very constrained circumstances. It is therefore not a positive development overall beyond the aviation context.

I thank the Senator for her question. On that point about SAFs and supports for SAFs, one would expect that if there were a real political and policy interest in supporting development of the likes of eSAFs, the Government would be actively utilising climate law and the policy regime that is now in place to ensure that they were developed as early as possible, not actively disapplying it, as in head 12.

Briefly, on two of the other points, on the EU side, there is a real risk of reputational damage during the Irish Presidency - not in terms of policy, but purely in terms of the politics - that Ireland is taking an approach that seeks, in our view, to undermine climate law and, potentially, the rule of law. It will also be playing a leading role in the international climate negotiations as EU Council President during the COP at the end of this year.

On a separate note, and picking up on some of what Ms Schönfeld-Quinn said, we have to be very careful in that there is a narrative being developed that judicial review or scrutiny is there only as some sort of vexatious or obstructive process. Judicial review, some of the assessments and a lot of what we have talked about are standard elements of lawful decision-making, not some sort of exceptional burden. In terms of the broader narrative of this committee, and maybe it could be addressed in the report as well, that point really needs to be clarified.

Briefly, on SAF and eSAF, the committee has heard from previous speakers, particularly the airlines and the International Air Transport Association, IATA, that they saw SAF as the means to mitigate greenhouse gas emissions. That was in answer to Senator Cosgrove herself, I think. On the other side of the coin, however, when we are involved in ReFuelEU negotiations as regards the percentage of flights that have to have SAF, they are doing everything in their power to unpick those mandates. Going back to what Professor McMullin said, it is used as something of a Trojan horse. At the same time, they are trying to get rid of them in other forums.

It is just something to mention.

May I ask one more question? I am the only one here, so I keep asking.

I know Deputy O'Gorman is on the way. Mr. O'Callaghan wants to say something.

I will make a quick point about SAFs. It is highly concerning that there is not enough emphasis on non-CO2 effects as well, because they constitute two thirds of aviation's emissions impact. There is a focus on CO2 but that is only one third of the impact and SAFs do not mitigate the non-CO2 effects. That includes contrails, nitrous oxides and certain emissions in the very sensitive part of the climate system at the maximum altitudes. This is another thing the airlines and so on have not really talked about. That would be highly concerning for the future projections of how aviation traffic will increase.

I thank the Cathaoirleach for giving me all of that time.

Deputy O'Gorman is just in time.

I thank the Cathaoirleach.

I played a masterstroke here. I allowed Senator Cosgrove go over by seven minutes. Deputy O'Gorman owes me one.

I do. I thank the Cathaoirleach for facilitating me. I apologise to our witnesses for running in and out. It is a busy day here.

To start with Ms Joyce-Kemper, one of the points she raised was the idea of the potential that this legislation, if and when it is passed, will be judicially reviewed and may end up in the European Court of Justice. That is significant and Ms Joyce-Kemper might just flesh that out a bit. One of the things that has come to us is the need for certainty about what is happening in Dublin Airport. My colleague, Eamon Ryan, when he was Minister, was always clear that this was a planning condition and the only way you could change that was through a planning application. A planning application has been submitted.

This very unusual legislation is coming through to try to change the cap. I would like to flesh out the possibility that, after all of this, we might end up with a judicial review, a decision going to Europe and a lack of certainty for another two or three years. Will Ms Joyce-Kemper explain a little bit about what she sees as a basis for a potential judicial review or challenge to this legislation in the Irish courts and then how it might end up in the European courts?

The main two challenges will be along the basis of this legislation allows the DAA, a State body, to circumvent environmental legislation regarding unauthorised development and the assessment of unlawful development. It will most certainly be challenged on that basis because the whole point of the Derrybrien case was that the Government was supposed to bring in domestic laws to prevent that. It did so under section 34(12) of the Planning and Development Act 2000 and through a substitute consent regime. One disallows planning applications being granted under section 34(12) if they have unauthorised development. It forces them into the substitute consent regime. That was as a result of a court case and the EU told us we had to do that.

The other issue is that every country in the European Union has to do this. Every other airport in the EU is subject to the same laws and has the same individual provisions to prevent this from happening. It is a very serious issue and I cannot see the CJEU saying that the Government can give its own State body a "get out of jail free" card and the court is okay with that. It is not something-----

Sorry to cut across Ms Joyce-Kemper. My recollection is that Derrybrien was litigated for a very long time across both the Irish and the European courts.

Correct.

There is strong and recent case law - it is not quite a precedent - that is directly applicable to Ireland about this idea of ignoring breaches of planning law.

I will let my colleagues speak about the climate litigation and emissions end of things but it is a very serious issue as well. There is no doubt in my mind that it will not just be one NGO taking a judicial review. We will probably find that nearly everyone who is sitting at this desk will take one as well. It is so important, not just to us domestically in Ireland, but across the EU and in an EU context. It will have an impact on every sector.

We have seen the recent issues with the fuel protests. Essentially, giving airlines and the DAA the okay to breach the law on emissions and not properly assess them with an environmental assessment and then pushing those obligations onto other sectors like farming and transport is simply unfair. It is also unfair on individual people, the taxpayers. We are told you have to start cycling more and you have to do more of this because we have to meet our objectives, yet there is a whole area that is basically being excluded by head 12 of this Bill. It is wrong and I cannot see it getting past the gatekeepers of the CJEU. Perhaps somebody else might want to speak to that.

I might bring Mr. McEvilly in because we spoke about a similar provision in the strategic gas reserve Bill at the climate committee a couple of months ago. At the time, I asked whether he was worried that the provision excluding section 15 of the climate Act would be the start of a process. Since then, we have seen a similar provision in this Bill. Last night, we were discussing the strategic infrastructure Bill on Second Stage in the Dáil, which proposes to exclude the climate duty under section 15 for a whole range of projects that will be designated as strategic infrastructure. Mr. McEvilly might just speak about what is now a quite clear approach being taken across the Government to exclude consideration of climate considerations under an Act that was only passed five years ago.

The point was raised about how positive climate steps taken by Dublin Airport in this case were actually given a degree of protection under section 12. My reading of the Coolglass case is that the attempt to build the wind farm was actually protected by section 15. My concern is that where you have big transport projects like a new Luas or something, they actually get protection under section 15 because the body involved - the National Transport Authority, NTA, or Transport Infrastructure Ireland - is advancing it to fulfil its climate duty and obligation. If such bodies are excluded, that protection does not exist any more. Mr. McEvilly might just speak to that point.

I have a few different points. To state the political facts, it is usually concerning when parties that were involved in the previous Government and very clearly supported the need for robust climate governance legislation actively seek to disapply substantive elements of it only a short period later without sufficient justification. To extrapolate on that a little bit more, there is not an explanation in the general scheme as to why that section is being disapplied. In our view, that is simply unacceptable.

To take up the point that there are now three different Bills that are fundamentally weakening climate law, what is proposed in the general scheme of the strategic gas emergency reserve Bill is a little bit different in the sense that it gives the Minister particular powers, including the power to deem the project that the Bill relates to as being in compliance, whereas this proposed Bill and the critical infrastructure Bill are about disapplying a certain provision. Ultimately, the upshot is an attempt to undermine or weaken the obligation on relevant State bodies in light of the Coolglass judgment Deputy O'Gorman mentioned. The key issue is that, in our view, this only increases legal risk. While the Government may take a view that it is potentially expediting the process by pre-empting the possibility of judicial review, as a number of us here have outlined, the way the Government is proposing to go about removing the passenger cap increases the likelihood of judicial review and legal challenge, including related to climate law. That would delay the type of development the Government seems to want.

The last point I want to make is-----

What about the protective element of section 15?

Exactly. It is a crucial point because it is not clear to me that the officials, the DAA and the IAA have interrogated this issue in depth. Climate law is not simply a restrictive measure. It is not simply there to introduce constraints. It can actually be put in place to ensure that development is done in a way that reduces emissions but also supports broader well-being and sustainable development of the area, for example, public transport around the airport. The basic point is where this framework, provided by section 15 of the climate law, is disapplied, it could undermine progressive policies that the aviation sector, or at least the DAA, may want itself.

There is also the risk that other individuals may take a case against development at Dublin Airport on particular grounds. One would expect that the State would actually want climate law in place to ensure it can be facilitated in a sustainable manner.

When we debated the Critical Infrastructure Bill last night one of the reasons the Minister, Deputy Chambers, argued that the provision in section 7 of the Bill to exclude section 15 of the climate Act was because of judicial reviews. That was very much his focus. Are there a lot of judicial reviews in the system right now on the basis of section 15 of the climate Act? Are the witnesses linked in in that area? The challenge to the Galway ring road could be referenced but in that case An Bord Pleanála just had not done its job. It had not done any analysis under section 15. Are the witnesses aware of any judicial reviews in place right now on major projects where section 15 is the lynchpin? I am not aware of such cases and the Minister, Deputy Chambers, was not able to cite any to me.

I am not aware of any at the moment but it has become a new potential ground for judicial review if it is not adhered to. One of the big issues around this death by a thousand cuts approach on legislation is that it makes it impossible to do cumulative impact assessments under the EIA, AA and water framework directives. It immediately impacts strategic environmental assessment, SEAs, that are required on certain policies and programmes as well. If you start excluding this or that critical infrastructure at the airport, suddenly you cannot carry out a proper SEA on anything. Proper environmental assessments or appropriate assessments cannot be carried out on developments that may interact with those developments in terms of the climate aspects of EIA assessments. It is messy and, in effect, the Government is just clouding the waters. It is making it easier to do a judicial review because of those cloudy waters as it is not clear or precise. In effect, it is trying to avoid judicial reviews. However, I think it is actually going to lead to even more, and that is the difficulty.

The strategic environmental assessments-----

Strategic environmental assessments are assessments that have to be done on Government policies on such things as county development plans. If DMAPs are being done for coastal areas, a strategic environmental assessment has to be carried out on all of those. It is supposed to feed in any major developments within that policy or area.

The Deputy referred to Deputy Chambers and the overall narrative in this and other Bills. It shows a focus on preventing what might be very bad decisions from being challenged. We would say what is really important when legislating is to set up the circumstances that allow good decisions to be made in the first place. Rather than focusing on not wanting to have to deal with section 15 because we might get it wrong and might be challenged, it should be setting up the circumstances to make sure decisions are made that actually comply with the climate Act and our law. The basic elements of that are that all the relevant information is actually before a decision-maker, such as the Minister. That is not helped by head 12 of this Bill. Making sure there is accountability and scrutiny so that decisions have to be out in the open and robust is not helped by having very limited appeal mechanisms and limited mechanisms for the public to hold the Government to account on those decisions.

I am not aware of pending judicial reviews under section 15 explicitly. To echo what has just been said, the point of section 15 is to ensure that developments comply with the climate Act. The way to avoid judicial review is to ensure that developments comply with the climate Act. I do not know whether this is a conscious thing in the background or not, but if the climate Act were being applied more generally in a coherent and systematic way, the climate action plan would be providing the big picture story into which things like strategic infrastructure were already factored, so that when the EPA presents its projections of emissions against carbon budgets, taking account of the strategic infrastructure plans in the pipeline, it would show that we are going to comply with our carbon budgets. A potential real reason why there is a concern about vulnerability under section 15 goes back to the fact that successive governments, but this Government in particular, have either just not brought forward a climate action plan in a timely way - that is in the cloud somewhere at the moment - or the climate action plan they bring forward, when assessed, is nowhere near meeting the requirements of the carbon budget framework. It follows, as day follows night, that virtually any development is then vulnerable because it is going to contribute to that overshoot. The right thing here is not to subvert the climate Act but to actually implement it.

I have one final question. In Ms Tunney's statement she said that the lifting of the passenger cap will increase emissions. When the airline representatives were before us a couple of weeks ago I put the point to Willie Walsh that going from 32 million to 40 million passengers would definitely increase emissions. He came back at me really hard, saying it will not do so because of sustainable aviation fuel and improvements in engines. He was so adamant I was actually a bit taken aback. Could Ms Tunney speak to that? I would like to hear her views on the view that having 8 million extra passengers will not increase our emissions.

I have not seen any evidence to support the statement of Willie Walsh. We know for a fact that if aviation growth keeps going we are going to be hitting 4°C heating, rather than the 1.5°C target. We are supposed to reduce emissions now. If we are going to hit any 1.5°C target from aviation we need to reduce flight numbers now. There have been some gains from technology and efficiency but nothing sufficient to deal with the growth happening in every airport. We spoke a lot about sustainable aviation fuel, SAF. The numbers are not there and we believe it is a distraction. There are many tools for dealing with aviation emissions. Demand management is definitely one of them, growth is definitely one of them and in the future potentially electro-sustainable aviation fuel, ESAF, but at the moment, between where we are now and when we get to ESAF in ten or 20 years, we really need to be looking at taxation and demand management.

I would add two points. First, there are no mitigation measures for international flights. I keep on bringing that point home. There are some for intra-EU but basically none for international flights. How Mr. Walsh is suggesting that they might not increase emissions is a mystery. He might sit here and say not to worry as we will have SAF or whatever. I guess he has just changed jobs so I can no longer say this. However, organisations of which he was previously a member are lobbying really hard at EU level not only to ensure that the emissions trading system on international aviation does not appear in proposed legislation this July, but also to roll back the legislation that already exists in the EU. They have also been incredibly strong in advocating every time any national government tries to take any measures. The Irish tax that we had on passengers before was essentially lobbied against by a number of airlines. That is why it was removed. There is a whole history of it. I have been working on aviation since 2012 and have seen a lot of it. As the committee goes forward with its report, it should be honest with the Irish people and see through that airline lobbying, at least to say this decision is going to have serious consequences. At least we can then take it from there.

One thing that comes out from the Coolglass judgment is the sense that only in marginal cases will section 15 actually be relevant to an individual planning decision. In general, as Professor McMullin outlined, if you have a broader policy framework, the Supreme Court noted climate is considered as part of that broader framework. It does not arise in individual cases. The situation here is that the broader framework in aviation has gaps. However, at the same time, section 15 as interpreted by the Supreme Court is simply a sense-check on decisions. It does not dictate any one outcome. It is simply having a more balanced approach that considers climate as part of the overall process.

There are so many layers of complexity. The meeting today has been really useful. At times, we went outside the scope of the scrutiny of the general scheme.

For the avoidance of any doubt and for the benefit of those watching who may be confused because of those different layers of complexity, can any of the witnesses' concerns be dealt with by amendment to the general scheme or are they totally against the general design of the scheme?

A conceivable amendment is to say that no order will be made under the Act unless and until measures have been brought forward to ensure that it does not lead to an increase in emissions and that this is subject to advice from the Climate Change Advisory Council.

I would agree with that. I would add a nuance, which would be looking at the EU legislation, especially the emissions trading system, as part of those measures.

We would hold that the legislation is unlawful in its current form.

To be clear, I would also agree with what Professor McMullin has said regarding referral to the Climate Change Advisory Council, the need for assessment of the emissions associated with the facility and, to be 100% clear, also the removal of head 12, which seeks to disapply.

I would agree with Professor McMullin's submissions. We would say that head 5 should be reviewed to ensure there are adequate safeguards on the Minister's exercise of power. I agree with others that head 12 should just be removed in its entirety.

I thank the witnesses for this valuable engagement today and the evidence they gave to the committee. Members will reflect carefully on the issues raised, particularly today around climate obligations, planning, environmental concerns, access to justice and legal certainty. We will consider all the evidence received as we prepare our recommendations on the general scheme.

For the record, we hope to have a draft report for the committee circulated before our meeting on 29 April with a view to finally considering the report on 6 May but, of course, those timelines are subject to change and agreement by the committee and so on. The committee will now work on drafting that report.