Housing for All - Within Planetary Boundaries

by Laoise Murray, SS Law

The housing crisis has been a pervasive part of the Irish experience in the past decade, acutely felt by young and old Thousands of people are suffering in insecure and inadequate accommodation.¹ The endless media commentary on the subject is wearing us all down: the housing crisis almost has the same conversational value as the weather. Deprived of the choice of affordable and appropriate housing in which to kickstart an independent adult existence, our cohort of about-to-graduate fellow students are planning their emigration with resigned sighs We hope desperately that somewhere else it will be different

It has been estimated that we will need to accommodate approximately 49,000 people per year until 2051 in housing that is not currently available.² As a reaction to this, the Irish government produced the Housing for All plan in which they committed to investing €20 million euros until 2025 in housing development ³ In the recently published National Development Plan for 2021 until 2030, the government states that they expect 400,000 new dwellings will need to be constructed by 2031 to address the present strains on the housing market and expected population increase over the next decade.⁴ Unfortunately, the construction of 400,000 new homes could not have come at a worse time, environmentally speaking.

Sectoral Emissions Ceilings

Discussions are emerging in the media and academia, both in Ireland and internationally, concerning the unaccounted greenhouse gas (‘GHG’) emissions associated with construction, and the impact of this source of emissions on the achievement of our residential sector emissions reductions targets.⁵ Last summer, the Government produced sectoral emissions ceilings which are designed to achieve a 51 per cent reduction in national GHG emissions by 2030.⁶ They are not exactly legally binding, but they are part of the larger framework created by the Climate Act 2021, and reflective of the target to limit global warming to 1 5° in accordance with the Paris Agreement and EU law.⁷ Of concern to this paper is the residential sector’s emissions ceiling which was capped at 4 million tonnes of carbon dioxide (equivalent) by 2030, representing a 44-56 per cent reduction in emissions from those recorded in 2018.⁸ The 2021 carbon budget programme has a five-year term, and excess emissions are carried forward to the next budget period with corresponding reductions

Notably, the emissions ceilings framework also provides for 26 MtCO2eq of unallocated savings which the government hopes will arise due to “emerging technologies, changing scientific consensus or policies."⁹ Friends of the Irish Environment have begun proceedings to quash these sectoral emissions ceilings on the basis that the unallocated savings have been “picked from the sky "¹⁰ Despite the lack of enforceability and potential impracticality of the targets, they are, for now, a relatively helpful means to quantify our progress – and our failures

Housing and GHG Emissions

Housing results in GHG emissions from energy and electricity use by occupants, in addition to transport costs associated with commuting between one’s residence and workplace.¹¹ These ‘operational emiss- ions’ are being reduced in Ireland through retrofitting and the transition to renewable energy sources.¹² However, construction of new dwellings involves the heavy use of non-renewable materials, takes up land that could be used for wildlife and biodiversity, and is an energy-intensive process.¹³ These more subtle carbon impacts are labelled ‘embodied emissions’ and have been increasingly given more attention in carbon accounting literature. Combined, researchers have calculated that the operational and embodied emissions of the built environment in Ireland are currently responsible for upwards of 37% of national emissions ¹⁴

Armed with these figures, it is alarming to read the Irish Green Building’s Council’s recent report outlining the emissions trajectory of the buildings sector in Ireland based on the government’s plans for housing and infrastructural works in the coming decades ¹⁵ The researchers found that works envisioned by the National Development Plan, National Retrofit Programme and Housing for All, if completed, would produce double the built environment’s embodied emissions and considerably increase the annual operational emissions for the building sector.¹⁶ The researchers note that while operational carbon emissions will decrease as renewable energy sources begin to dominate and retrofitting homes increases their energy efficiency, there will be a five-fold surge in embodied emissions from the materials and construction process involved in adding 400,000 residential buildings to the market ¹⁷ If such a path is taken, embodied emissions will be responsible for 40 per cent of all residential emissions by 2030, when they are currently only responsible for one third of emissions. The bad news is that there will be negligible reductions in the total GHG emissions for the residential sector if the 2030 housing targets are achieved.¹⁸

(Tentative) Solutions

Placed in the eye of the storm, it seems the Irish State has committed itself to fulfilling two conflicting obligations: increasing housing supply en masse, while simultaneously halving national carbon emissions by 2030. This appears to be an irreconcilable conflict, as housing development in the way that we want and think we need is simply unsustainable. Our neoliberal political mindset that relies on an oversupply of housing to improve its quality and reduce its price ignores the reality that there are elements of home and the natural environment in which it sits that remain noncommodifiable. We must ask ourselves how we want to live on this ever-warming planet, and then shape our physical structures and legal rules to fit this new lifestyle.

It is my view that we can create a sustainable housing system that satisfies basic housing needs without destroying the planet in the process Revamping building regulations is one vital component of this process Embodied carbon in buildings has become a hot topic of conversation amongst building regulation specialists and a ‘whole life carbon’ approach is likely to be included in the next iteration of the European Union’s Energy Performance Building Directive.¹⁹ This means that embodied carbon will be considered thoroughly in the form and structure of new housing construction. The EU’s new approach follows the exemplary lead of Sweden, Denmark, France, Finland and the Netherlands who all introduced a whole life carbon accounting approach to energy reduction in the construction sector.²⁰ These regulations can place a cap on the GHG emissions that each building may produce, require that certain sustainable materials be used, or limit the floor space per-capita so as to reduce land take and demand for materials.

We can also make use of existing buildings The transformation of over one hundred and fifty thousand vacant, derelict or underused properties in Ireland will be essential to increasing housing supply without causing a massive increase in embodied emissions The new tax and fiscal incentives to encourage private redevelopment of vacant properties is a start, but we need to think more progressively to make use of the valuable environmental resources that are existing buildings ²¹ For example, the State – and by extension, Local Authorities - could use their social justice prerogatives under Article 43 2 1° of the Irish Constitution to intervene in certain people’s private property rights and purchase their vacant properties compulsorily for purposes of social housing provision or affordable purchase schemes. As our social order changes and three-generational homes fall out of disuse, we also need to consider the idea of splitting existing houses into self-contained apartments or cohousing strategies ²²

Additionally, the potential referendum on inserting a right to housing, depending on the verdict in the impending Housing Commissions report,²³ could be an excellent legal counterpoint to the strong private property protections in the Constitution that politicians have regarded as being an obstacle to progressive State intervention in the housing system ²⁴ Increased opportunities for public intervention in private property could lead to a collective re-organisation of the housing system with principles of sustainability and sufficiency placed at its core, without undermining totally the institution of private property guaranteed by Article 43.1.2° of the Irish Constitution.

As a final note, Ostrom has argued persuasively that polycentric and localised governance structures like that of the Irish planning system are the most effective means of achieving transformative and lasting improvements in the physical environment.²⁵

The local planning authorities and An Bord Pleanála are at the front line of housing development in Ireland, and their position as such must be given more attention. Where these public authorities are endowed with effective legal tools such as the Environmental Impact Assessment process, when based in scientifically approved environmentally protective reasoning, they can ensure that any development that is taking place does not benefit the economy at the sake of the environment Additionally, reforming the Planning and Development Act 2000 to explicitly define “sustainable development” would strengthen this normatively neutral concept and ensure that the environment is weighed more heavily against competing economic and social policy considerations. The improved definitional framework could require considerations of calculated carbon footprints, proportion of land take and projected impact on wild- wildlife or biodiversity to be integrated more deeply into the planning permission process Key to the success of “sustainable development” in restricting unsustainable development is the use of scientific imperatives and accurately calculated planetary boundaries.²⁶

Conclusion

Leading Irish social policy analyst Rory Hearne has commented that “the connection between housing and the environment urgently needs to be moved centre stage in both the housing and climate debates."²⁷ Indeed, this is a subject and conflict that requires a great deal more consideration by lawyers, environmental scientists and the residential construction industry as a whole. It is only through a combination of collective and individual efforts that we will learn how to live within our planetary boundaries. The series of tentative solutions offered here are merely the tip of the iceberg; innovative regulation and policy will be necessary to transform housing systems around the world from a path of growth-dependency to one of sufficiency and sustainability

Simon Communities of Ireland, ‘Homeless Figures Press Release’ (30 September 2022) and Department of Housing, Local Government and Heritage, ‘Summary of Social Housing Assessments 2021 – Key Findings’ (30 March 2022),

Eoin Burke-Kennedy, ‘50,000 new homes needed every year to solve housing crisis – industry report’ (Irish Times Online, 12 August 2021)

Department of Housing, Local Government and Heritage, Housing for All – A New Housing Plan for Ireland (2021)

Department of Public Expenditure and Reform, ‘National Development Plan 2021-2030’ (16 February 2018), 15.

Sylvia Thompson, ‘Developers, architects and builders must incorporate carbon reduction measures into construction’ (The Irish Times, 2 Feb 2023)

See Department of the Taoiseach, ‘Press Release: Government announces sectoral emissions ceilings, setting Ireland on a pathway to turn the tide on climate change’ (28 July 2022) The sectoral emissions ceilings were created in accordance with Section 9 of the Climate Action and Low Carbon Development (Amendment) Act 2021

In accordance with Article 2(1)(a) of The Paris Agreement on Climate change, adopted at the 21st Conference of the Parties, (Paris: United Nations, 12 December 2015) and the EU Emissions Targets and Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality

Kevin O’Sullivan, ‘Sectoral emissions ceilings published by Government for carbon budgets up to 2030’ (Irish Times Online, 26 Sep 2022)

10 Ellen O'Riordan, ‘Environmental group lodges legal action over emissions cuts ‘picked from the sky’’ (The Irish Times, Monday 27 Feb 2023)

11 Aidan Duffy, ‘Land Use Planning in Ireland-a Life Cycle Energy Analysis of Recent Residential Development in the Greater Dublin Area’ (2009) 14(3) International Journal of Life Cycle Assessment, 268–77 and Georgia Pozoukidou, ‘15-Minute City: Decomposing the New Urban Planning Eutopia’ (2021) 13(2) Sustainability, 928

12 European Union (Energy Performance Of Buildings) Regulations

2019 (S I No 183/2019) as enacted under Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (recast) as amended by Directive (EU) 2018/844 of the European Parliament and of the Council of 30 May 2018 [2010] OJ L153/13.

13 M Röck, M R S Saade, M Balouktsi, et al, ‘Embodied GHG emissions of buildings – The hidden challenge for effective climate change mitigation’ (2020) 258 Applied Energy, 114107

14 Richard O’Hegarty, Stephen Wall and Oliver Kinnane, for the Irish Green Buildings Council (V4, In Draft) Whole Life Carbon in Construction and the Built Environment in Ireland (October 3rd, 2022),

10

15 ibid

16 ibid, 5

17 ibid, 21, 26

18 ibid, 36

19 Richard O’Hegarty, Oliver Kinnane, ‘Whole life carbon quantification of the built environment: Case study Ireland’ (2022) 226 Building and Environment, 109730, 13

20. Harpa Birgisdóttir, ‘Why Building Regulations Must Incorporate Embodied Carbon’ (Buildings and Cities 30 October, 2021). Ministry of the Interior and Housing, National Strategy for Sustainable Construction Denmark (2021)

21 Finance Act 2021, s 80

22 Maria Sandberg, ‘Downsizing of Housing’ (2017) 38(2) Journal of Macromarketing, 154-167

23 Jack Horgan-Jones, ‘Right-to-housing referendum: Recommendations due this month on wording of vote’ (Irish Times, 4 Jan 2023)

24 Hogan & Keyes, ‘The Housing Crisis and the Constitution’ (2020) available at SSRN 3731506.

25 Elinor Ostrom, ‘Beyond Markets and States: Polycentric Governance of Complex Economic Systems’ (2010) 100(3) The American Economic Review, 642

26 David Hunter, ‘An Ecological Perspective on Property Theory’ (1998) 12 Harvard Environmental Law Review, 311

27 Rory Hearne, Housing Shock: The Irish Housing Crisis and How to Solve It (Policy Press, 2020), 239