Climate Change - NZ Response

Climate Change is another area of study in the Auckland University "Legal and Institutional Context of Planning" paper. Here is some useful background, in the form of a short essay. What I've done here is look at the way the Resource Management Act has been changed, and cover some of the case history relating to applications to establish new power stations in New Zealand...

I start with the Vienna Convention for Protection of Ozone Layer - 1985 - part of what was known as the Montreal Protocol. (When I was at University of Canterbury, NZ atmospheric physics was leading the way measuring ozone in the atmosphere.) In response to this international agreement NZ introduced domestic law, the Ozone Layer Protection Act - enacted in 1990 - to control related activities here.

In 1992 there was the Earth Summit held in Rio de Janiero, Brazil. This led to the Rio Declaration on Environment and Development, Agenda 21, the UN Convention on Biological Diversity, and the UN Framework Convention on Climate Change - sometimes referred to as FCCC. This starts like this:

The Parties to this Convention,

Acknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind,

Concerned that human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth’s surface and atmosphere and may adversely affect natural ecosystems and humankind,

You can download the 25 page FCCC.

Around this time, the Electricity Corporation of New Zealand made application for discharge consents for a proposed Stratford Power Station in the Taranaki Region. ECNZ applied to the Regional Council for consents to establish and operate a gas-fired power station in 1993. However, citing "National significance" (due to NZ's position on the FCCC), Minister Upton called the application in. This meant that the application could be considered by a Board of Enquiry, but the Minister would make the decision.

The Board recommended consent be granted, subject to ECNZ committing to around 4,000 hectares each year of forestry planting to mitigate the CO2 emissions from the power station. It also recommended that the Minister issue a National Policy Statement on Climate Change.

The Minister – in his decision – which considered the Board's recommendation – granted the consent, but gave ECNZ open licence pretty much to deal with any net increase in CO2, in ways they think fit…(which might include carbon sinks without specifying what those might be, and noting that the Stratford Power Station would be more efficient than ECNZ's other stations and could mean the old ones were used less....).

The Minister's decision was in 1995 and caused considerable disquiet.

Negotiations on what was to become the Kyoto Protocol to the FCCC were started in Berlin in 1995. The draft text was prepared toward the end of 1997, and countries began lining up first to sign it (done by representatives), and then to ratify it (done by Parliament's Executive). New Zealand signed it in 2002. (Click here for a fascinating insight into the tortuous process that was involved in arriving at the text of the Kyoto Protocol.)

At the time, Contact Energy made application to Auckland Regional Council to establish a gas-fired power station in Otahuhu, Auckland. Contact Energy obtained necesary consents to operate the power station. However the Environmental Defence Society (EDS) appealed the decision to the Environment Court, seeking a condition requiring tree planting to mitigate the CO2 emissions. Judge Whiting agreed with EDS deciding that NZ’s signature to the FCCC was a relevant matter, even though at the time NZ had not ratified the Kyoto Protocol. The decision makes reference to the need for a National Policy Statement on Climate Change, and while the appeal was dismissed, it served a useful purpose in focussing attention on NZ's obligations. In passing I note also what the judge had to say about tree planting:

[92]...to the extent that the condition imposes sequestration planting outside the Auckland region, even if the Regional Council has jurisdiction to impose such a condition, we doubt that it can legally monitor and enforce such a condition. Quite apart from the legal position, if such a condition were imposed, the Regional Council would, be confronted with considerable practicable difficulties in monitoring and enforcing it. (The whole decision is here.)

After NZ ratified the Kyoto Protocol NZ set about giving effect to its commitments. This included enacting the NZ Climate Change Response Act 2002, and making changes to the RMA via the enactment of Resource Management (Climate Change) Amendment Act 2004.

According to the MfE website:

The Climate Change Response Act 2002 puts in place a legal framework to allow New Zealand to ratify the Kyoto Protocol and to meet its obligations under the United Nations Framework Convention on Climate Change.

The Act includes powers for the Minister of Finance to manage New Zealand’s holdings of units that represent New Zealand’s target allocation for greenhouse gas emissions under the Protocol. It enables the Minister to trade those units on the international market. It establishes a registry to record holdings and transfers of units. The Act also establishes a national inventory agency to record and report information relating to greenhouse gas emissions in accordance with international requirements. Full text of CCRA

Part 4 of this Act introduces the NZ Emissions Trading Scheme (ETS), which has had a difficult passage, and many critics. The changes to the RMA, via the Resource Management (Energy and Climate Change) Amendment Act 2004 are summarised here from MfE's Quality Planning website:

Under the Resource Management (Energy and Climate Change) Amendment Act 2004, three new matters were inserted into section 7 under Part II of the RMA:

"(ba) - The efficiency of the end use of energy;�
(i) - The effects of climate change; and
(j) - The benefits to be derived from the use and development of renewable energy".

In the context of the RMA, there are two ways in which particular regard may be given to the effects of climate change:

1. As an integral part of making decisions on resource consent applications and notices of requirement under the RMA for which the effects of climate change may be significant; and
2. In proactively assessing RMA policy statements and plans, as they come up for review or other changes are proposed, to identify whether more explicit and/or up-to-date policies are needed to address the effects of climate change than are currently provided.

The second point directly relates to Council's broader strategic planning initiatives. The effects of climate change can be integrated into local authorities ' longer term planning under the Local Government Act, as part of their mandate to take a sustainable development approach.

What this summary does not state is that it required Councils to plan for climate change (mostly adaptation), and that the power of regional councils to consider effect of greenhouse gas emissions on climate change when making rules in plans or deciding discharge resource consents was removed. However the way these changes were made to the RMA meant that the issue was far from settled.

Ambiguity led to a string of legal actions in regard to Mighty River Power's application to locate the Marsden B coal fired power station near the mouth of Whangerei Harbour. After 2004 RMA changes which incorporated Climate Change, Greenpeace challenged the Marsden B Power stataion consents.

The Environment Court accepted Mighty River Power’s arguments - that essentially Parliament had decided that climate change gas matters would be dealt with by National Government. Not by Regional Council authorities. Greenpeace appealed to the High Court, which upheld Greenpeace’s arguments in 2006. This decision was then appealed to the Court of Appeal. And Greenpeace lost that case, though the decision called for a Government National Policy Statement on Climate Change.

Finally, triggered by the possibility of a gas-fired power station in Rodney District, Greenpeace sought a Supreme Court declaration as to what the RMA provisions actually meant. That decision was in 19 Dec 2008 and it upheld the Court of Appeal decision.

On the opposite side of the Green Energy ledger, was the Franklin District Council vs Genesis Power Environment Court decision in 2005. The application related to 18 wind turbines on the south side of Manukau Harbour. The court was required to weight the various competing issues. On one side were visual effects, Maori cultural issues, noise effects, and effects relating to horses. One the other side were benefits derived from renewable energy, reduced greenhouse gases, contribution to the renewable energy target and others. The court held that "an overall broad judgment" was required and "such a judgement allowed for comparison of conflicting considerations and the scale or significance of them...". In his decision the Judge refers to "relevant matters" arising from Section 7 which included the newly added renewable energy matters. Judge Whiting allowed the appeal against FDC, and granted the consents to Genesis.

In the last few months the Government has issued The Renewable Energy Generation National Policy Statement. This requires responsible authorities to: recognise benefits; acknowledge constraints (incs env compensation for adverse effects that cannot be avoided, remedied, or mitigated – inc measures or compensation which benefits communities and for local environments that are affected); practical implications; manage reverse sensitivity; incorporate provisions in Regional Policy Statements, RPs and DPs.; within timeframe.

So that's something. But with CO2 levels almost at 400 parts per million and climbing, and the general scientific consensus being that global levels need to be around 350 ppm to avoid the risk of further warming of the planet, a lot more needs to be done. And it sure won't be solved by planting trees in mitigation.