Sustainability and Climate Change Update: April 2023

What’s happening?

There is a lot happening in the Climate Change and Sustainability space - for this April update we provide a selection of topics below:

• RMA overhaul edging closer; Natural hazard disclosures to be set out on LIMs; and improving consenting of renewable energy projects in the spotlight
• Severe weather emergency legislation pushed through parliament with haste
• IPCC Report says transformational change required in the next decade
• High Court dismisses two separate applications for judicial review on climate change grounds, and other High Court climate change decisions under appeal
• Waitangi Tribunal asked to give urgency to climate change considerations
• Advisory opinion sought from International Court of Justice on obligations of states to protect rights of current and future generations from adverse effects of climate change

Given the amount of activity in this space, this April update is lengthier than usual.

RMA overhaul edging closer; Natural hazard disclosures to be set out in LIMs; Improving consenting of renewable energy projects in the spotlight

RMA overhaul edging closer

Most will be aware that the government has proposed a complete overhaul of the RMA, with the Select Committee having now heard all submissions and due to report on 6^th June on both the Natural and Built Environment Bill (NBEB) and the Spatial Planning Bill (SPB).  It is expected that the bills will be passed before the next election.  You can read about some of the proposed changes and the transition to the new system in our earlier update here:

https://www.cooneyleesmorgan.co.nz/resource-management-system

The Climate Change Adaptation Bill is yet to be tabled in the House but is expected by the end of this term. 

Natural hazards on LIMs

An amendment to the Local Government Official Information and Meetings Act (LGOIMA) is currently sitting before Select Committee, with a report back due on 22^nd May.  The amendment bill provides for the provision of better natural hazard information (including about the impacts of climate change) on land information memoranda (LIMs).  Improving this information was a key action in the National Adaptation Plan (NAP).  If you would like to find out more about New Zealand’s first NAP, see our previous article here: https://www.cooneyleesmorgan.co.nz/Changing_climate_in_NZ

The key new requirements are to introduce:

• clearer requirements to provide natural hazard information in a LIM (including the impacts of climate change that exacerbate natural hazards);
• a statutory responsibility for regional councils to provide natural hazard information (including about the impacts of climate change) and support to territorial authorities;
• a specific purpose for providing natural hazard information;
• provisions to develop regulations for providing natural hazard information in LIMs; and
• limitation of legal liability for local authorities when disclosing natural hazard information in good faith.

As currently drafted, the Bill requires councils to provide the following information on LIMs (to the extent that it is known to territorial authorities):

• information about each hazard or impact that affects the land concerned;
• information about each potential hazard or impact, to the extent the council is satisfied that there is a ‘reasonable possibility’ that the hazard or impact may affect the land concerned (whether now or in the future); and
• information about the cumulative or combined effects of those hazards or impacts on the land concerned. 

There is a new statutory responsibility on regional councils to provide councils within its region with the types of information set out above ‘as soon as reasonably practicable in the circumstances’.  This is because regional councils often hold significant information about natural hazards and have access to technical expertise.  If passed as currently drafted, landowners can expect to see more detailed natural hazard information popping up on their LIMs.

Consenting of renewable energy in the spotlight

Meanwhile, the National Party has set out its ‘Electrify NZ’ Plan – identifying ‘planning red-tape’ as the main barrier to consenting renewable energy projects – including solar, wind, hydro, geothermal and biomass.  The policy sets out the party’s intention to require  fast-tracking of resource consents for non-hydro renewable energy (decisions within 1 year); issue a new National Policy Statement for Renewable Energy Generation within a year of taking office – making solar, wind, geothermal and biomass a controlled activity (consents cannot be declined, but can be subject to conditions); and increase the minimum duration of consents for all renewables (including hydro) to 35 years to increase investment certainty. 

The Government is also focusing on consenting improvements for renewable electricity generation and transmission, in order to assist with meeting emissions targets.  The Ministry of Business, Innovation and Employment (MBIE), alongside Ministry for the Environment (MfE) are consulting on proposed changes to the NPS for Renewable Electricity Generation and the NPS for Electricity Transmission.  The intention is to strengthen the current NPS to provide a consenting process that is more efficient, certain, and environmentally sustainable, and support Council decision making by providing clearer direction for these projects.  Given these projects can sometimes intersect with other priorities and matters of national significance, e.g. freshwater, landscapes, or indigenous biodiversity; feedback is sought on tools for assessing suitability of renewable electricity where such impacts occur.  Feedback is also sought on how to recognise and provide for Māori interests as part of the consenting process.    You can find out more about the changes here:  https://www.mbie.govt.nz/have-your-say/renewable-electricity/

MBIE and MfE will be hosting a public webinar on the changes on Wednesday 3^rd May and submissions are open on the changes until 1 June 2023.  If you would like more information on the changes, or if you need help drafting a submission, please feel free to contact us. 

Severe weather emergency legislation (x2) passed with haste….

In a case of ‘blink and you’ll miss it’; in March the Government passed two separate ‘Severe Weather Emergency’ bills.  The first – the Severe Weather Emergency Legislation Act 2023 was introduced to the House on 14^th March and received Royal Assent less than a week later.  It amends a number of different pieces of legislation, including the Civil Defence and Emergency Act, the RMA, LGA, Food Act and associated regulations.  The changes are intended to remove red tape to streamline the recovery and rebuild from recent severe weather events.  There are changes to the ‘emergency works’ provisions of the RMA, including to permit activities on rural land which respond to weather damage for the next 12 months.  The measures must be proportionate in the circumstances and avoid, remedy or mitigate any adverse effects, and the works must not cause significant adverse effects beyond the property boundary.  You can read more about this Act in our earlier article here https://www.cooneyleesmorgan.co.nz/articles/id/856 . 

A second piece of legislation – the Severe Weather Emergency Recovery Legislation Act 2023 (Recovery Act) came into effect on 13^th April and addresses recovery efforts.  It provides significant powers for the Governor-General to make Orders in Council (OIC) to exempt, modify, or extend the provisions of certain legislation.  The use of this type of mechanism is not unprecedented; it was used following both the Christchurch and Kaikoura earthworks; however it has drawn criticism from a number of quarters, including the Law Society, who have raised concerns about the use of secondary (or delegated) legislation to override primary legislation. 

The areas covered by the Recovery Act are extensive – 36 local authorities including (as expected) Auckland, Gisborne and the relevant Hawkes Bay authorities, but also areas of the Waikato, Bay of Plenty, Manawatu, Northland and Wairarapa.  The legislation which can be overridden or modified by the OIC process is also extensive, including the RMA, Building Act, Public Works Act, Reserves Act etc.  A full list is contained in Schedule 2 of the Recovery Act.  If you would like to find out more about this legislation, please contact us. 

IPCC Report says transformational change required this decade

The Intergovernmental Panel on Climate Change (IPCC) is the United Nations body responsible for assessing the science related to climate change.  In March it issued the Synthesis Report for the Sixth Assessment Report (AR6), which makes for sober reading.  A concise statement of the overarching conclusions can be found here:

https://www.ipcc.ch/report/ar6/syr/resources/spm-headline-statements/   

Some key points:

• Human activities have unequivocally caused global warming.  Global greenhouse gas (GHG) emissions have continued to increase, with unequal historical and ongoing contributions arising from unsustainable energy use, land use and land-use change, lifestyles and patterns of consumption and production across regions, between and within countries, and among individuals
• Widespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere have occurred. Human-caused climate change is already affecting many weather and climate extremes in every region across the globe.
• Adaptation planning and implementation has progressed across all sectors and regions, with documented benefits and varying effectiveness; but adaptation gaps exist, and will continue to grow at current rates of implementation.
• Global GHG emissions in 2030 implied by nationally determined contributions (NDCs) announced by October 2021 make it likely that warming will exceed 1.5°C during the 21st century and make it harder to limit warming below 2°C. There are gaps between projected emissions from implemented policies and those from NDCs, and finance flows fall short of the levels needed to meet climate goals across all sectors and regions
• Continued GHG  emissions will lead to increased global warming, with the best estimate of reaching 1.5°C in the near term being considered in scenarios and modelled pathways. Every increment of global warming will intensify multiple and concurrent hazards.
• All global modelled pathways that limit warming to 1.5°C (>50%) with no or limited overshoot, and those that limit warming to 2°C (>67%), involve rapid,  deep and, in most cases, immediate GHG emissions reductions in all sectors this decade. 
• Climate change is a threat to human well-being and planetary health. There is a rapidly closing window of opportunity to secure a liveable and sustainable future for all. The choices and actions implemented in this decade will have impacts now and for thousands of years.

High Court dismisses two separate judicial review challenges brought on climate change grounds

In March, the High Court dismissed an application by charitable trust, Movement, for judicial review of Waka Kotahi’s national land transport programme (NLTP) for 2021-2024[1].  Movement argued that Waka Kotahi failed to take into account various issues in relation to climate change, particularly the reduction of greenhouse gas (GHG) emissions.  The Court commenced by acknowledging the significant concerns many New Zealanders have about climate change and the steps being taken to address the problem.  It noted that judicial review enables the Court to review decisions of public bodies and ensure they act within the limits of their legal powers.  But the Court is not in a position to make political, social and economic choices.

Ultimately the Court dismissed the appeal, finding that while climate change is an important issue for the land transport sector,  the Court’s role is limited to ensuring that Waka Kotahi had undertaken a correct decision making process.  The Court carefully analysed that process in the decision, but ultimately found that climate change considerations are not a specified purpose under the LTMA.  While it found that climate change was one of 4 strategic priorities set out in the Government Policy Statement on land transport (GPS) (with safety, better travel options, and improving freight connections for economic development), there is no ranking of the priorities - so none take primacy.  Finally, the Court found there was no requirement for Waka Kotahi to undertake ‘quantitative’ measurements of land transport GHG emissions, and the ‘qualitative’ assessments met its requirements under the LTMA and GPS.  

Also in March, the High Court dismissed an appeal by Forest and Bird[2] against a decision by Southland District Council to enter into an access arrangement with New Brighton (a subsidiary of Bathhurst Resources) in relation to council-owned commercial forestry land near Nightcaps.  The access would enable coal exploration.  Forest & Bird challenged the decision on a number of grounds, including failure to act in accordance with principles under the Local Government Act (LGA) or to consider the scientific consensus on climate change and that the decision was unreasonable because it facilitated the expansion of coalmining operations in the district. 

The High Court dismissed the appeal.  It agreed with the earlier High Court decision in All Aboard Aoteoroa that the principles in the LGA are not mandatory requirements enforceable in their own right, but rather are a guide to Council’s exercise of its powers and functions.  The Court distinguishing the High Court’s decision in Hauraki Coromandel Climate Action (which held that climate change may require ‘heightened scrutiny’ over decision-making and a greater intensity of review), on the basis that this decision was not a ‘climate change’ decision in the same sense as Hauraki CCA.  Although there was a climate change context, the decision was whether (and on what terms) to grant access to its land.  The Court upheld the Council’s decision making process and agreed that the decision was not ‘unreasonable’.  The Court also drew a distinction  between ‘facilitating’ an activity and simply approving it or giving ‘legal go ahead’. 

These cases demonstrate the Court’s awareness of the significant concerns New Zealanders have about climate change matters, and the adequacy of decision-makers’ responses to those challenges. Ultimately the High Court continues to clarify that its role in judicial review proceedings is to ensure that decision-makers are acting within the confines of their powers.  Provided that decision-makers have done so, and the decision is one that is reasonably open to the decision-maker, the Court will not interfere in the merits of the decision.  It highlights however that (similar to overseas trends) parties will continue to challenge public authorities’ decisions which have climate change implications. 

Other High Court climate change decisions under appeal

Last year we reported on two High Court cases where decisions relating to climate change matters were unsuccessfully challenged:

1. Students for Climate Solutions v Minister of Energy and Resources; and
2. Lawyers for Climate Action NZ Inc v Climate Change Commission. 

The former related to a decision by the Minister of Energy and Resources granting consent under the Crown Minerals Act (CMA) for petroleum exploration permits.  The latter related to a challenge against the Climate Change Commission’s advice to the government, which the Court noted would not put New Zealand on track to meet the IPCC pathways.  We understand both decisions have been appealed.  We also understand that an appeal has been lodged by All Aboard Aoteoroa against the High Court’s decision that Auckland’s regional land transport plan is lawful, despite not reducing emissions. 

Waitangi Tribunal asked to give urgency to climate change considerations

In 2016 Maanu Paul and David Potter filed a claim in the Waitangi Tribunal on behalf of the Mataatua District Māori Council on the grounds that the Crown has breached its Te Tiriti o Waitangi obligations to Maori by its past and present policies in regard to global climate change.  A request for urgency was refused back in 2017 on the basis that Māori would have the opportunity to be involved in setting climate change policies and targets and that claim could be heard as part of the Environmental Kaupapa inquiry. 

In 2019 the claimants filed a further application for a priority hearing, and the Tribunal raised jurisdictional issues as a relevant bill was before Parliament.  The matter appears to have languished since, and the claimants have now lodged a further application seeking a priority hearing.   The grounds include that:

• climate change is increasingly impacting Māori in a disproportionate manner;
• climate change is having a devastating impact on the natural environment (which Māori are kaitiaki for);
• steps taken by government are inadequate to mitigate climate change and assist Māori communities and business to adapt to the impacts of climate change; there is a continuing failure to consult with Māori on climate change policies; and
• Māori do not have any alternative forum to bring claims, as High Court challenges have been unsuccessful to date.  The Tribunal provides an opportunity to assess the government’s response to climate change from the broader perspective of Te Tiriti o Waitangi obligations and this will be the first time globally that climate change issues will be assessed from the perspective of indigenous rights.

The Crown’s response to the application for urgency has been:

• The Tribunal is best placed to assess whether to reprioritise matters taking into account the kaupapa and other inquiries currently underway and yet to commence;
• There are no current or pending Crown policies or actions which would be irreversible (policy settings are under constant review) or will remove the Tribunal’s ability to inquire in the future; and
• The two High Court decisions (mentioned above) are under appeal and some of the issues under consideration /  relief sought in those appeals are  directly relevant to the claim. 

We will continue to monitor these matters. 

Advisory opinion sought from International Court of Justice on obligations of states to protect rights of current and future generations from adverse effects of climate change

Finally, the United Nations highest court has confirmed that the UN General Assembly has requested an advisory opinion on the “obligations of states in respect of climate change”. 

Led by Vanuatu, the UN adopted a resolution last month calling for the International Court of Justice (ICJ) to lay out the legal framework of obligations countries have to curb warming and protect communities from climate disaster.  Although ICJ advisory opinions aren’t legally binding, there have been calls for such an opinion for a number of years, as they carry significant weight and can create a precedent for other international tribunals and national courts. 

The Court has been asked to answer two questions:

1.   What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of GHG for states; and for present and future generations; and

2.  What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:

(i)       States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

(ii)        Peoples and individuals of the present and future generations affected by the adverse effects of climate change?

Watch this space……

If you have any questions about  this update, please feel free to call Rachael Zame, or a member of our Climate Change and Sustainability Team. 

Latest Update: 24 April 2023