New Zealand Law Society - Climate Change and the RMA – A Sea Change Has Begun

Climate Change and the RMA – A Sea Change Has Begun

Climate Change and the RMA – A Sea Change Has Begun

Climate change is currently one of the hottest environmental topics, but this is not reflected by how the Resource Management Act 1991 (RMA), our main environmental statute, has been dealing with it. The Government has recently announced it is to repeal the RMA, replacing it with three separate Acts. However, that doesn’t mean reforms won’t be happening between then and late 2022 (the earliest the new legislation could come in).

In fact, a key aspect is set to change on 31 December this year (unless an Order in Council delays it), ushering in a sea change in natural resources and planning law.

For environmental management and planning purposes there are two separate, but important aspects of climate change:

  1. Effects on climate change – this refers to activities that discharge greenhouse gases into the atmosphere, like burning hydrocarbons and livestock farming. These activities directly contribute to climate change through those discharges, while activities that fuel the demand for these activities, contribute indirectly. Others, like deforestation, reduce uptake of greenhouse gases from the atmosphere, thereby likewise increasing greenhouse gases, while tree planting will do the opposite. It is these activities that are the focus of efforts to slow and eventually stop climate change (hopefully).
  2. Effects of climate change – these are the effects caused by climate change. Climate change will change the setting in which activities occur that Councils (regional and district/city) are seeking to manage through resource consents and planning documents (plans containing the rules and policies for resource consents). For example, rising sea levels or more intense and frequent flooding caused by climate change will make low-lying riverside and coastal areas unsuitable for building in the future. Increased droughts and higher temperatures may mean certain types of farming will become unviable or require more irrigation water.

Current status

Surprisingly, under the current law, sections 70A, 104E and 104F RMA (introduced in 2005), confine Councils to considering only one tiny aspect of the effects on climate change – the greenhouse gas emission-reducing effects of renewable energy proposals. For all greenhouse gas emissions themselves, the effects on climate change must be disregarded when preparing planning documents and processing resource consents. Supreme Court authority holds that this also extends to activities likely to cause greenhouse gas emissions indirectly, like mining coal.

As a result, climate change-focused “sustainable” initiatives like converting to electric vehicles, or planting to promote carbon uptake, have been relegated largely to the sphere of public relations and personal moral duty, playing almost no role under the RMA. Whether a proposal will indirectly increase or reduce greenhouse gas loadings in the atmosphere is currently all but legally irrelevant under the RMA.

Only the effects of climate change, the other key aspect of the climate change hot topic, have been something that Councils could manage through plans and resource consent processes under the RMA. It is already a matter to which section 7(f) RMA requires them to have particular regard, even if this stops short of the national importance status accorded by section 6 to issues seen as critical for the entire country. Post-RMA this issue’s profile will be raised further when it receives its own specific piece of legislation, the Climate Change Adaptation Act. In the interim though, it is a legally relevant matter for planning documents and resource consent applications, in contrast with the effects on climate change, which remain almost entirely out of bounds – but not for long.

What's changing

The momentous step of ending the legal irrelevance of the effects on climate change for resource consents and planning documents has not been left to the RMA repeal and replacement but will occur far sooner. Under sections 35 and 36 of the of Resource Management Amendment Act 2020 (RMAA20) sections 70A, 104E and 104F RMA will be repealed on 31 December this year (barring an Order in Council postponing this). With these sections removed, the previously binding Supreme Court authority, which had hinged on these sections, will no longer apply. When deciding whether or not to grant consent, or to adopt new rules and policies governing consents, the resulting effects on climate change will no longer be out of bounds for councils.

This applies not only to discharges of greenhouse gases (like those which come from hydrocarbon burners) that require or could be made to require resource consent, but also extends to activities that may not themselves involve discharge consents, but can, indirectly, cause increases or reductions in greenhouse gas emissions. Anything that could indirectly have an effect on the level of greenhouse gases entering or being removed from the atmosphere will be affected. For example, the fact that a subdivision is some distance from an urban centre and is likely to result in more vehicle trips burning fossil fuels, or conversely that it is located right next to a railway station with electric passenger trains, will become relevant. Likewise, the planting and retention of trees to promote carbon uptake will also be relevant, as will the opposite effect, from removing trees.

Under the RMAA20 this legal change will apply only to consents lodged and planning documents notified after the repeal takes place, so not before 31 December this year. For those though, steps taken or not taken to lessen or counter the atmospheric build-up of greenhouse gases will for the first time have real legal consequences for whether planning and environmental approvals can be obtained or not. Legally binding commitments to run only electric vehicles, or to set aside land for trees to take up carbon could come with concrete legal benefits in helping get necessary consents. The importance of this change is underscored by the fact that the function of a resource consent is to make something lawful that would, without that consent, be an offence under s338(1)(a) RMA. It represents a fundamental shift of focus that should bring an equally fundamental change in the future design and form of our built and natural environments.

Nine months is a very short time when it comes to environmental planning and consents. While applications lodged before 31 December this year may still dodge the effects on climate change, Councils have become adept at using short consent durations to limit the extent of any benefits applicants might receive from this. Basically, the need to address effects on climate change in all but our shortest term is already upon us.

That the Government was not prepared to put off making the reduction, avoidance or compensation of greenhouse gas emissions part of day-to-day environmental management and planning, to the RMA repeal reveals a great deal. It shows that in the post-RMA world both aspects – both the effects of and on climate change will play a central role with important legal consequences for consents and planning documents, whatever form they take.

Compared with the current status, particularly of the effects on climate change, this is indeed a sea change. Due to the fast-approaching repeal of sections 70A, 104E and 104F RMA, it is a change that is not relegated to the post-RMA world but has had its first steps already ushered in by the RMAA20. It makes climate change, especially the contributions made by daily activities controlled by Council such as planning documents and resource consents, legally relevant and something for which we have to start planning for today.

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