Need for action on climate change
Climate change is happening, and it is happening now. And it is caused by human activity. There is overwhelming scientific consensus about this (eg, BD Santer “Celebrating the anniversary of three key events in climate change science” Nature Climate Change, 25 February 2019).
We are in a climate emergency, but we can, and should, do something about it. We can mitigate how bad the effects of climate change will get by reducing emissions of greenhouse gases. The international agreement reached in Paris in 2015 was that we should aim to reduce emissions so that there is no more than 1.5°C of global average temperature increases. That will require reducing global emissions of carbon dioxide by around 45% by 2030 and to net zero by around 2050 (Intergovernmental Panel on Climate Change (IPCC) “Global Warming of 1.5°C” (October 2018) at p 95). As well, we should prepare for the likely consequences of climate change, such as sea level rises and more frequent and intense storms. We have begun to see these consequences already, and they will likely get worse even if global average temperature increases are limited to 1.5°C.
To date, New Zealand has not had a clear governing framework for reducing its emissions and planning for the effects of climate change. It has sought to reduce emissions through the emissions trading scheme (ETS), which puts a price on some greenhouse gas emissions. The ETS has been ineffective in inducing significant emissions reductions (Productivity Commission “Low-emissions economy” August 2018 at p 128). In terms of adaptation, New Zealand does not currently have a coordinated and joined-up approach. The task of planning for the effects of climate change is left to be considered by local authorities in their planning role.
New Zealand needs a national framework to guide our response to climate change. To that end, the Minister for Climate Change, James Shaw, has introduced the Climate Change Response (Zero Carbon) Amendment Bill into Parliament. It passed its first reading on 21 May 2019 with cross-party support and only one vote against, which is a remarkable achievement. The Environment select committee is currently considering submissions.
This article describes how the bill works and why it is a major step forward on climate change. In summary, the bill puts in place a net zero emissions target for 2050, and requires budgets and plans to be produced as stepping stones towards meeting that target. The bill also creates an independent Climate Change Commission, to give advice on adaptation and mitigation planning. But the bill could be stronger in terms of how it is allowed to have legal effect.
Climate Change Response (Zero Carbon) Amendment Bill
As the bill’s title suggests, it focuses New Zealand’s mitigation response to climate change around a “net zero” emissions target. This requires that net emissions for most greenhouse gases are zero by 2050. This target is based on the science summarised in the IPCC’s 2018 report, which says that to stabilise global temperature increases within 1.5°C, global emissions of carbon dioxide need to reduce to net zero by around 2050. New Zealand should play its part towards the global effort to achieve this.
The bill sets a separate 2050 target for methane produced from the agriculture and waste sectors (known as biogenic methane). The bill will require that gross emissions of biogenic methane decrease by between 24% and 47% relative to 2017 levels by 2050. Methane is a short-lived but very potent greenhouse gas. It decays after around 12 years in the atmosphere, but has a 34 times greater warming effect than carbon dioxide during that time (New Zealand Agricultural Greenhouse Gas Research Centre “How do livestock affect the carbon cycle?”, November 2017). So it makes sense to have a separate methane target.
The bill requires step-wise progress towards the long-term 2050 targets. The minister must set five-year budgets in advance so that there is always one current budget and two future budgets covering approximately the next 15 years. The minister will have advice from the Climate Change Commission on what the budget should be. The Commission is an independent and expert body that will recommend what the budget should be, and how it may be realistically met using pricing and policy methods. The minister must give reasons for departures from the Commission’s recommendation.
The bill does not tell us how the budgets are going to be met. It simply requires that there are plans in place for meeting them. Emissions reduction plans are to be prepared by the minister before the budget period begins. The plans must include sector-specific policies for how to reduce emissions and increase removals of carbon from the atmosphere, as well as a multi-sector strategy to meet emissions budgets. Plans must also include a strategy that accounts for the need for a just transition to a low carbon economy, so that the impacts of reducing emissions on workers, regions, iwi and Māori and wider communities are mitigated. The Commission will give advice on the direction of policy required by the plans.
The Commission is an important part of the new regime to be created by the bill. It injects expertise, independence and transparency into New Zealand’s climate change response. The Commission will be an independent Crown entity consisting of up to seven members who collectively have expertise in climate change, governance, policy, the environmental, ecological, social, economic and distributional impacts of climate change, and te Tiriti o Waitangi and te ao Māori. This expertise will feed into the budgets and plans.
The Commission will also monitor and report on progress towards meeting budgets and the 2050 target by producing an annual report on New Zealand’s emissions and the adequacy of the emissions reduction plans. Then, at the end of a budget period, the Commission will report on whether the budget was met. This will ensure transparency on New Zealand’s progress towards the 2050 target. If we are slipping and sliding, the public can hold their politicians accountable.
Another important pillar of the bill is its provision for adaptation. There is a certain level of climate change that is already locked into the global climate system due to our emissions to date. Even with 1.5°C of warming there will be more frequent heatwaves and heavy rainfall events, more intense tropical cyclones, losses of some species, spread of diseases, and issues with water and food security (IPCC at pp 178–181).
The bill provides a centralised adaptation framework. The Commission will prepare a national climate change risk assessment every six years. The risk assessment will take into account the economic, social, health, environmental, ecological and cultural effects of climate change, and the distribution of those effects across society and vulnerable groups. In response to that risk assessment, the minister must prepare a national adaptation plan that sets out the Government’s objectives, strategies and policies for adapting to the effects of climate change.
The bill’s weaknesses
While the bill is a good start in establishing a framework for reducing emissions and adapting to the effects of climate change, it contains a number of weaknesses. These could frustrate the progress towards the bill’s purpose of developing clear policies that contribute to the global effort to stay within 1.5°C. Many of these problems have been raised in over 400 submissions received by the Environment select committee. Here I focus on three weaknesses in the legal architecture of the bill. These aspects are also addressed in a submission lodged by Lawyers for Climate Action New Zealand, which is available on its website.
The first weakness is in how the 2050 target and emissions budgets are able to influence decision-making under other legislation. It might be thought that the target and budgets are so “obviously important” that they become mandatory relevant considerations for many decisions (CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 183). But the bill stifles this sort of argument from being raised. Section 5ZK says that the 2050 target and emissions budgets are permissive considerations and that the failure to consider them does not invalidate anything done by that person or body. This will immunise decision makers from judicial review in cases where they have failed to take the target or a budget into account, regardless of the consequences of that decision for the achievability of the target and budgets. That is, despite the importance of climate change thinking permeating across Government, the bill is very weak in this regard. This appears to be inconsistent with New Zealand’s obligation under the United Nations Framework Convention on Climate Change to “take climate change considerations into account, to the extent feasible, in its relevant social, economic and environmental policies and actions”.
The second weakness is that the bill does not make any changes to other legislation (other than some minor tweaks). This creates some significant inconsistencies. Most glaring will be the tension between the bill and sections 70A and 104E of the Resource Management Act 1991 (RMA). Those provisions say that planning and consenting authorities must disregard the effects of a greenhouse gas discharge on climate change. This means that the RMA overrides the 2050 target and emissions budgets from even being permissive considerations in RMA decision-making. That could be a major obstruction to achieving the target and budgets. Thankfully, the relationship between the RMA and climate change is within the scope of the comprehensive review of the RMA recently announced by the Minister for the Environment.
The third weakness is that the bill constrains the ability for the courts to order remedies in situations where the target or a budget has not been met. Proposed section 5ZJ says that no remedy or relief is available for the failure to meet the 2050 target or a budget, and the target and budgets are not enforceable in a court of law. A court may only make a declaration that the target or a budget has not been met and award costs.
It appears the thinking behind this provision may be that the Government does not wish to be exposed to damages claims for failing to meet the target or budgets. While that rationale is understandable, section 5ZJ goes too far in excluding all remedies and making the target and budgets unenforceable. This will prevent the courts from applying or creating remedies in appropriate cases in a proportionate and reasonable manner. The remedial approach should be left to develop over time, as it has for the New Zealand Bill of Rights Act 1990 and in judicial review over the last 30 years. For example, if a decision to be made by a Government department would make a budget unachievable, it should be possible to obtain an order quashing that decision. Another possible remedy that has been suggested is that if the Government has failed to meet a target or budget then it should be ordered to invest in appropriate infrastructure an amount of money equivalent to the cost of purchasing emissions credits on international markets to make up the shortfall (Jonathan Church “Enforcing the Climate Change Act” (2015) 4 UCL Journal of Law and Jurisprudence 109 at 131-132).
Conclusion
The bill before Parliament is a promising start in providing a framework for New Zealand to reduce its emissions and prepare for the effects for climate change. It creates a clear structure so that budgets and plans are produced in a transparent manner with appropriate expert input. This will insulate climate change policy from political ebbs and flows.
However, there are some weaknesses in the architecture of the bill. The targets and budgets created under it cannot be mandatory considerations for judicial review purposes. The bill does not yet interface well with other legislation. And the availability of remedies to enforce the target and budgets is significantly constrained. The select committee should address these aspects of the bill before it is enacted.
Duncan Ballinger Duncan.ballinger@stoutstreet.co.nz is a junior barrister at Stout Street Chambers, Wellington, and a founding committee member of Lawyers for Climate Action New Zealand Inc.