I was asked to speak about the national implications of proposed changes to the RMA at a recent (21 Feb) Lexis Nexis conference in Auckland. The topic of my talk was "What does the RMA actually protect". I began with the easy thing - private property rights.
I made these observations about the regulation of "the house next door":
* The private properties are fenced (enclosed), have clear boundaries, and their ownership (title), is clear and agreed;
* The environmental issue or property right (privacy) is clearly defined, readily measured, and could be argued in court (if necessary);
* Compliance with the regulation can be readily administered and managed;
* Property privacy is protected and enforced
What about the house by the beach? This is different from the house next door, mainly because the owner would like to protect the investment from the sea and tidal action and storms and suchlike. But the RMA has changed things somewhat from old common law days. The natural environment has to be considered. So the observations are a little different:
* The private properties are fenced (enclosed BUT subject to erosion), coastal land is well defined (subject to erosion), ownership (title) is clear and agreed (but see Maori rights?)
* The issue or property right (ability to build a house) is defined, readily measured, and can be argued in court (but subject to retention of healthy coastal environment which is not so easily measured)
* Compliance with the regulation can be administered and managed (but there is a grey area)
* Property development rights are protected and enabled (subject to health of coastal environment, Maori issues)
This issue has become contested in New Zealand because of the impending sale of state assets reliant upon water for their energy. Who owns the water. How is it protected and for what? And what does the RMA have to say about it? Some guidance on this question comes from looking at how Government dealt with ECan. The expert advice Government commissioned in advance of sacking the Council included that Council: "The organisation (resource consenting) is science led rather than science informed – and this has implications in how responses to applications are prepared and officers attitude prior to, at and after the hearings…. (and) …There is insufficient consideration given to the fact that the purpose of the RMA is to weigh environmental, social, cultural and economic matters. ECan’s focus is mostly on ‘natural’ environmental matters…"
This advice is critical of good science. It is a clear precursor to efforts to weaken the RMA and align it with the needs of development and private property. As we see here - perhaps the RMA can work well for simply defined private property.
More recently MfE has been directed by Government to do away with State of Environment Reporting at regional level. MfE will do that centrally. The idea that environmental effects would be measured and assessed at local level is further undermined. Might be OK for private property - yours and mine - but not other ecosystems. How does this stack up in my assessment of regulatory effectiveness?
* Impossible to “enclose or fence” river water, so ownership is difficult to define
* Water takes can each be readily measured, but cumulative effects downstream not easily measured
* Metering of water takes allows monitoring and take compliance, but monitoring of local effects made more difficult if centralised
* Property rights for water takes are enabled, but only loosely related to cumulative effects
The following words are drawn from the writings of Garrett Hardin: "The Commons. Picture a pasture open to all.
It is to be expected that each herdsman will try to keep as many cattle as possible on the commons. Such an arrangement may work reasonably satisfactorily for centuries because tribal wars, poaching, and disease keep the numbers of man and beast below the carrying capacity of the land.
Finally, comes the day of reckoning, that is, the day when the long-desired goal of social stability becomes a reality.
At this point, the inherent logic of the commons remorselessly generates tragedy. As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously, he asks, "What is the utility to me of adding one more animal to my herd?"
This utility has one negative and one positive component….
1. The positive component is a function of the increment of one animal. Since the herdsman receives all the proceeds from the sale of the additional animal, the positive utility is nearly + 1.
2. The negative component is a function of the additional overgrazing created by one more animal. Since, however, the effects of overgrazing are shared by all the herdsmen, the negative utility for any particular decisionmaking herdsman is only a fraction of - 1.
….adding together the component partial utilities, the rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another....
But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy.
Each man is locked into a system that compels him to increase his herd without limit -- in a world that is limited.
Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons.
Freedom in a commons brings ruin to all.
So what do we do. How do we manage this…?
Option 1: fence off bits of the commons and sell them as private property
Option 2: keep it as public property, but allocate the right to enter and use parts of it. Allocation might be on the basis of wealth, an auction system, some sort of merit based system, or a lottery, or even on a first come – first served basis to long queues
Option 3: …?
What about pollution…?
We put sewage, chemical, radioactive, and heat wastes into water…
We put noxious gases, climate changing gases into the air…
The rational man finds his costs of discharging his wastes into the commons (resource consent fees, compliance fees, and best practicable option treatment) are less than the costs of purifying his wastes before releasing them…
This is true for everyone. We continue to foul our own nest while we behave as independent, rational, free-entrepreneurs…
Thinking about the commons, how does the RMA stack up in regulating it?
* Impossible to “enclose or fence” water, fish, air, so ownership is difficult to define
* Local water pollution can be measured, but cumulative effects difficult, same with air
* Enforcement not about law, but about enforcers - people – and who watches them?
* Who decides when enough is enough
* Is this about science and technology, or is it about human values and morality?
No comments:
Post a Comment