Download Climate change action post Paris: What now for New Zealand

OVER THE RAINBOW: NZPI CONFERENCE 2016
CLIMATE CHANGE ACTION POST-PARIS: WHAT NOW FOR NEW ZEALAND
PLANNING?
Teresa Weeks, Senior Associate, Chapman Tripp1
A NEW INTERNATIONAL FRAMEWORK FOR CLIMATE ACTION: THE PARIS
AGREEMENT
1
The international community met in Paris in December last year to try to thrash out
a post-2020 international agreement that will keep global temperature increases
below 2°C. Stakes were high, and success was far from guaranteed. But they did
it: the outcome of the COP21 Paris negotiations is a consensus among 195 countries
for a new universal climate change agreement that has been hailed as a “historic
turning point” (French Foreign Minister Laurent Fabius) and a “monumental success
for the planet and its people” (UN Secretary-General Ban Ki-moon).
Ambitious mitigation goals
The Paris Agreement sits under the overarching United Nations Framework
Convention on Climate Change and contains ambitious climate change mitigation
goals. The Agreement aims to hold the increase in the global average temperature
to “well below” 2°C above pre-industrial levels, as well as pursuing efforts to limit
the temperature increase to 1.5°C above pre-industrial levels. In addition, parties
aim to reach global peaking of greenhouse gas emissions “as soon as possible”, and
to achieve carbon neutrality (between anthropogenic emissions by sources and
removals by greenhouse gas sinks) in the second half of this century.
2
Nationally determined contributions
Unlike the Kyoto Protocol (which set out specific emissions targets for developed
countries), the Paris Agreement requires all parties to take action without
committing individual countries to any particular level of emission reductions. Critics
view the absence of concrete commitments in the Agreement as a weakness, but
allowing countries to set their own contributions based on their national
circumstances was necessary in order to get universal buy-in for a new post-2020
framework. Jo Tyndall, New Zealand’s Climate Change Ambassador during COP21,
has observed that the Agreement is not perfect; it’s pragmatic – a feature that she
suspects will make sure it works.
3
4
The Paris Agreement requires parties to prepare Nationally Determined
Contributions (NDCs). Countries came to the Paris negotiations with Intended
NDCs, but the first NDCs will not be finalised until parties ratify the Agreement.
NDCs will be set every five years, with each to be progressively more ambitious. A
“global stocktake” will be undertaken (starting in 2023 and then on a five yearly
basis) to assess the collective progress towards achieving the purpose of the
Agreement and its long-term goals.
Adaptation on equal footing with mitigation
Significantly, adapting to climate change sits alongside mitigation as a fundamental
goal of the Agreement. The World Resources Institute has described the Agreement
5
1
With thanks to Brendan Abley for his research assistance.
092625871/4768685
as placing “unprecedented importance” on adaptation and successfully establishing a
broad architecture for accelerating adaptation planning and action.
6
The Agreement includes a global goal on adaptation of enhancing adaptive capacity,
strengthening resilience and reducing vulnerability to climate change, with a view to
contributing to sustainable development and ensuring an adequate adaptation
response in the context of the 2°C /1.5°C temperature goals. Parties are to engage
in adaptation planning processes and the implementation of actions, and are
required to submit and periodically update an ‘adaptation communication’ (which
can form part of an NDC, or be separate). The periodic “global stocktake” will
include review of adaptation efforts. The Agreement also expressly recognises the
importance of averting, minimising and addressing loss and damage associated with
the adverse effects of climate change, including extreme weather events.
Other features
Other features of the Agreement include transparency (but with flexible reporting
rules), acceptance of international carbon markets, use of forest sinks and carbon
finance frameworks.
7
Agreement not yet in force
Although the text of the Paris Agreement was agreed at COP21 last December, the
Agreement has not yet entered into force. It will open for signature from 22 April
2016 to 21 April 2017. After signing the Agreement, parties then also need to take
the additional step of formally committing to it (by depositing instruments of
ratification, acceptance or approval). 2 The Agreement will enter into force after at
least 55 parties who together represent at least 55 percent of total global emissions
have ratified, accepted, approved, or acceded to the Agreement.
8
9
Entry into force is not guaranteed – but the current outlook is very positive. To help
kick-start signing of the Agreement, the UN Secretary-General has arranged a
special signing ceremony in New York on 22 April 2016, and various countries have
signalled their intention to sign on that date – including both the United States and
China (via a joint presidential statement). A few countries, including Fiji, are
already ready to both sign and ratify the Agreement.
DOING NEW ZEALAND’S FAIR SHARE?
10
The New Zealand Government welcomed the Paris Agreement, with then Climate
Change Minister Tim Groser calling the global agreement a “huge and historic step
forward” that “sets the world on a clear pathway to a lower-carbon future”. New
Zealand is set to be an early signatory to the Paris Agreement, with Climate Change
Minister Paula Bennett recently indicating that it is likely New Zealand will sign the
Agreement in April 2016.
11
So what will New Zealand’s share of the global effort to tackle climate change be?
New Zealand has an existing (unconditional) 2020 target of reducing greenhouse
gas (GHG) emissions to 5% below 1990 levels by 2020. Alongside these 2020
targets stands a longer term target, which was gazetted under the Climate Change
Response Act 2002 in March 2011: a 50% reduction in GHG emissions from 1990
levels by 2050.
2
After the Agreement closes for signing in April 2017, parties can still join by “acceding” to the
Agreement.
092625871/4768685.4
2
12
Following a public consultation on its post-2020 target, the Government went to
Paris with an Intended NDC of reducing GHG emissions to 30% below 2005 levels by
2030 (equivalent to an 11% reduction from 1990 levels by 2030).
13
The Government aimed to set a target that was a fair and ambitious contribution
(both by international and domestic audiences), that appropriately managed costs
and impacts on society, and that guides New Zealand over the long term in the
global transition to a low emissions world.
14
The Government has justified its choice of target on the basis that New Zealand’s
emissions are small on a global scale (just 0.15% of global emissions) and that New
Zealand’s unique emissions profile, with already high levels of renewable energy and
an unusually high proportion of emissions from agriculture, poses particular
challenges for transforming to a low emissions economy. Cutting emissions will
therefore cost New Zealand more than many other countries.
15
The 2030 climate change target remains provisional until New Zealand ratifies the
Paris Agreement.
POST-PARIS: WHAT NOW IN THE RMA/PLANNING CONTEXT?
16
In light of the Paris Agreement and New Zealand’s provisional 2030 target, it is
timely to examine what these developments are likely to mean in the context of the
Resource Management Act 1991’s (RMA) role in mitigating and adapting to climate
change.
Mitigating climate change: RMA ‘good cop’ role
Business-as-usual will not achieve New Zealand’s 2030 target. The Government is
currently undertaking a review of the Emissions Trading Scheme (ETS) and both Tim
Groser (former Climate Change Minister) and now Paula Bennett (current Climate
Change Minister) have clearly signalled that a toughening of the ETS is on the cards,
including removing the transitional “one for two” measure which allows non-forestry
ETS participants to surrender only one emission unit for every two tonnes of
emissions (rather than one unit for each tonne of emissions). Minister Bennett has
openly accepted that the carbon price under the ETS must rise.
17
18
The ETS is New Zealand’s key policy tool for reducing GHG emissions. The RMA
therefore looks set to retain its supporting ‘good cop’ role in relation to climate
change mitigation. Following the 2004 amendments to the RMA, and as clarified by
the Supreme Court decisions in Greenpeace New Zealand Inc v Genesis Power Ltd
[2008] NZSC 112 and West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 133, the
RMA does not have a ‘bad cop’ role in constraining activities based on their GHG
emissions, but does play ‘good cop’ in terms of promoting renewable energy (and
energy efficiency).3
19
As ‘good cop’, the RMA will still have an important role to play in relation to New
Zealand’s transition to a low carbon economy. The planning system will need to
take account of the transformative changes ahead in the transport and energy
sectors, such as the rise of electric vehicles and solar generation-and-storage.
Issues to consider include the appropriate planning framework for enabling these
new technologies. What is the role of national direction, including the proposed
3
RMA decision-makers are required to have particular regard to the benefits to be derived from the
use and development of renewable energy (section 7(b)), as well as the efficiency of the end use of
energy (section 7(ba)).
092625871/4768685.4
3
National Planning Template? Successfully planning for a future carbon constrained
world will extend beyond promoting renewable energy. There is a broader
consideration of how to enable people and communities to provide for their
wellbeing in the context of a low carbon future. For example, what might New
Zealand’s low-carbon transport future look like (which the Ministry of Transport is
currently consulting on as part of its long-term transport futures thinking) and what
changes in transport planning might this necessitate? A challenge for planners will
be keeping attuned to the evolving future direction of New Zealand’s transition to a
low carbon economy.
20
21
Adapting to climate change: RMA’s key role
To date, at both the international and domestic levels, the focus and attention of
climate change policy and regulation has primarily been on mitigation, with
adaptation issues playing second fiddle. By including fundamental adaptation goals
alongside mitigation goals, the Paris Agreement now provides welcome impetus for
more focus and investment on how to adapt to the unavoidable effects of climate
change. In the New Zealand context, adaptation impacts include higher
temperatures, sea level rise, more extreme floods and drought, both increased and
decreased rainfall (depending on the region), changing land use productivity and
impacts on ecosystems. Not all effects will be negative (such as agricultural and
horticultural benefits associated with longer growing seasons and fewer frosts),
although adverse impacts are expected to outweigh positive impacts.
Current ‘work in progress’
So how well is New Zealand already placed in terms of climate change adaptation?
22
New Zealand’s Framework for Adapting to Climate Change (Ministry for the
Environment, 2014) identifies the RMA as “the key piece of legislation for adapting
to climate change and associated natural hazards”. The need to plan for climate
change adaptation is already embedded in the RMA, including via the explicit
requirement for RMA decision-makers to have particular regard to the effects of
climate change (section 7(i)). Wider local authority duties to plan for natural
hazards are also relevant, as is the power to refuse subdivision consent if the land is
likely to be subject to specified natural hazards, including erosion and inundation
(sections 160 and 220).
23
In recent years, both central and local government have been increasingly focusing
on climate change adaptation issues. In the RMA context, express references to
climate change impacts are found not only in the New Zealand Coastal Policy
Statement 2010 (NZCPS), but now also the National Policy Statement for Freshwater
Management 2014. Additional information and guidance materials have been
produced, such as the 2010 guidance on climate change and flooding, and the Urban
Impacts Toolbox launched in 2012. The Quality Planning resource also now includes
a specific guidance note on climate change. Local government is increasingly
considering and addressing the risks associated with a changing climate in statutory
plans, particularly in the context of sea level rise. Climate change effects have also
been considered in infrastructure projects, such as taking into account future sea
level rise in the design for the raising and widening of the causeway on Auckland’s
Northwestern Motorway.
24
Despite these efforts, adaptation planning is still a ‘work in progress’, reflecting both
inherent challenges in addressing the effects of climate change, as well as gaps and
barriers in the existing regulatory framework. More specifically:
092625871/4768685.4
4
25
24.1
Planning for the effects of climate change is inherently challenging given that
the effects relate to future risk involving uncertainty, complexity and long
return periods. The local variability of impacts also means that, unlike in the
climate change mitigation context, a national one-size-fits-all approach is not
appropriate. Moreover, there is not simply one ‘right’ approach to adapting to
climate change, but rather a spectrum of potential responses ranging from ‘do
nothing’ to increasingly interventionist measures to avoid or mitigate effects.
24.2
Adaptation responses can directly impact (closely protected) private property
rights. The controversy associated with identifying land vulnerable to sea
level rise has been highlighted by the recent experiences in Kāpiti and
Christchurch. A Ministerial briefing paper addressing national direction for
natural hazards under the RMA (Ministry for the Environment, May 2015)
identifies that “[t]he largest risk is the difficulties that local government face
in reducing risks to existing settlements…Property rights and owners’
expectations are a key issue here.”
24.3
The ability for RMA decision-makers to adequately plan for climate change
impacts has also been hindered by factors such as insufficient national
direction, data gaps, and local authority capacity issues.
Cases that have recently come before the courts illustrate both ways in which local
authorities are seeking to address adaptation issues, as well as some of the
challenges being faced. For example:
25.1
In Gallagher v Tasman District Council [2014] NZEnvC 245, the Environment
Court upheld the Council’s Plan Change 22, which imposed subdivision
controls on land prone to coastal erosion and inundation and was driven by
the proposition that coastal erosion and inundation risks would be expected to
increase in the future due to effects of projected climate change on sea levels.
A key issue was the nature and extent of future hazard risk exposure from
sea water inundation, and the Court was satisfied that the risk scenario
presented in Council’s evidence was sufficient to justify the imposition of
controls, even though the future risk was uncertain. The Court acknowledged
that the RMA is not a “no risk” statute, but in this case that nature of the risk
was such that the Council’s response was appropriate.
25.2
Judicial decisions continue to take divergent approaches regarding the
appropriate degree of intervention in the context of willing exposure to
climate change related risk.
(a)
In Mahanga E Tu v Hawkes Bay Regional Council [2014] NZEnvC 83,
the Environment Court upheld the grant of subdivision consents for
land subject to future coastal erosion risk (including as a result of sea
level rise). The Court considered that the consent conditions, which
required the removal of houses once sea levels reached a certain point
and was secured by a cash bond, appropriately addressed the issue of
future sea level increases.
(b)
In contrast, in Carter Holt Harvey HBU Ltd v Tasman District Council
[2013] NZEnvC 25 the Environment Court declined Carter Holt Harvey’s
(CHH) appeal against the Council’s decision to refuse subdivision
consents. CHH proposed mitigation measures including minimum
heights for building platforms, setbacks from mean high water springs,
092625871/4768685.4
5
and covenants requiring building owners to remove houses once their
position became untenable. The Court concluded that erosion and
inundation would cause material damage and was satisfied that the
significance of the material damage justified declining consent, and that
CHH’s proposed mitigation did not adequately address the effects.
Further, the Court found that CHH’s proposal was not in accordance
with the NZCPS. Nevertheless, the Court noted that the relevant
policies in the NZCPS should not act as an outright prohibition on
development in coastal areas potentially affected by the future effects
of climate change. Proposals demonstrating an innovative response to
those effects could align with the objectives and policies in the NZCPS.
25.3
The High Court’s interim decision in Weir v Kapiti Coast District Council [2013]
NZHC 3522 involved judicial review of the Council’s decision to incorporate
coastal hazard mapping in Land Information Memoranda (LIMs). The
applicant for judicial review, an affected property owner, considered that the
information was not sufficiently certain to meet the standard for inclusion in
the LIM. The High Court confirmed that councils are obliged to include some
reference to information in their possession about coastal hazards in LIMs.
However, the High Court went on to find that councils have very broad
discretion as to how to represent that information. The Court was concerned
that the manner in which the Council had presented the coastal hazard
information in its LIMs did not fairly represent the many conditions and
assumptions underlying that information. The Court ultimately adjourned the
case so the parties could agree how to fairly represent coastal hazard
information in LIMs. Subsequently, the Council removed the initial coastal
hazard findings from its proposed district plan and new LIMs, as a result of
further testing of the coastal hazard information through the Kāpiti Coast
district plan review process.4
New measures in the pipeline
Various measures are in the pipeline that should strengthen and improve RMA
decision-making in relation to climate change adaptation. In particular:
26
26.1
26.2
RMA reform
The Resource Legislation Amendment Bill proposes reform of the RMA to
better manage risks from natural hazards. Key proposed reforms are adding
“the management of significant risks from natural hazards” as a new matter
of national importance in section 6, and amending decision-maker powers to
decline or place conditions on subdivision consents by mandating a risk
management approach and ensuring all natural hazards are covered (rather
than just a limited sub-set).
The natural hazard reforms are relevant in the climate change context given
the broad definition of natural hazards under the RMA,5 which encompasses
effects of climate change such as sea level rise and exacerbation of weatherrelated hazards such as floods and storms.
4
As a result of these developments, the High Court ordered that its interim judgment be treated as
final in Weir v Kapiti Coast District Council [2015] NZHC 43.
5
The RMA defines natural hazard as meaning “any atmospheric or earth or water related occurrence
(including earthquake, tsunami, erosion, volcanic and geothermal activity, landslip, subsidence,
sedimentation, wind, drought, fire, or flooding) the action of which adversely affects or may
adversely affect human life, property, or other aspects of the environment.”
092625871/4768685.4
6
26.3
26.4
27
28
Natural Hazards NPS
The Government’s current national direction programme includes guidance on
managing significant risks from natural hazards, which is indicatively
scheduled for completion in 2018. The Ministry for the Environment’s website
records that Environment Minister Nick Smith has expressed his preference
for the guidance to be in the form of a National Policy Statement (NPS), with
consultation on the development of a NPS due to start once the Resource
Legislation Amendment Bill is enacted. A recent Ministerial briefing paper
(Ministry for the Environment, September 2015) identifies ‘indicative content’
of a NPS as covering risk management methodology, specific objectives and
policies (such as location of infrastructure in relation to hazard areas), the
relationship with other national natural hazard direction (such as the NZCPS),
and monitoring and review provisions.
Updated guidance
The Ministry for the Environment has produced three adaptation guidance
manuals for local government – two issued in 2008 (on climate change effects
and impacts assessment, and on coastal hazards), and one in 2010 on
estimating the effects of climate change on flood flow. Updates are proposed
to all three guidance manuals as a result of developments in both
international science and domestic policy since the existing guidance was
published. The Ministry has indicated that updates will be staged, starting
with new climate projections in the first half of 2016 and coastal hazards
guidance in the second half of 2016.
More to be done
The new measures that are already in the pipeline will be a positive step forward,
but there is considerable more work to be done in order to ensure that New Zealand
adequately plans for the effects of climate change.
The Paris Agreement should assist in sharpening central government’s focus on
adaptation. The Ministerial briefing paper for incoming Climate Change Minister
Paula Bennett (Ministry for the Environment, December 2015) signals that
adaptation is set to rise up the political agenda, stating:
We anticipate that adaptation will become an increasingly important component of our
climate change response. Considerations for future work include the respective roles of
local and central government (e.g. whether greater national direction is required), and
whether more tools are needed to effectively respond to the impacts.
29
The existing New Zealand Framework for Adapting to Climate Change document –
which runs to a grand total of just four pages – is based on the four pillars of:
information, responsibilities, investment and action. There is considerable room for
improvement in all of these areas, including in relation to enhancing understanding
of climate change impacts, increased community engagement and investment in
local government capacity to address adaptation issues. Under the ‘responsibilities’
head, one key issue is the need for greater national direction. In the author’s view,
greater consistency in adaptation decision-making under the RMA is needed, but a
key challenge will be in striking an appropriate balance between providing clear
direction and enabling territorial authorities to exercise their adaptation functions
with confidence, whilst also providing sufficient flexibility for approaches to be
tailored to particular local circumstances. A recent Ministerial briefing on RMA
national direction for natural hazards (Ministry for the Environment, September
2015) notes that:
092625871/4768685.4
7
[C]ouncils are wary of possible legal challenge and expense when putting together
hazard information that has inherent uncertainties and/or proposing management
measures that are likely to be unpopular, particularly for infrequent hazards or those
that pose less risk now but will grow over time.
30
The Parliamentary Commissioner for the Environment’s report on ‘Preparing New
Zealand for Rising Seas: Certainty and Uncertainty’ (November 2015) makes a
valuable contribution to the dialogue regarding adaptation to sea level rise. The
report highlights the scale and significance of future effects of climate change on
coastal communities in major cities, with South Dunedin in the unenviable position
of being the most severely affected urban area. The Commissioner has made eight
recommendations to Government, which are predominantly focused on improving
the direction and guidance given by Government to councils, and include developing
a NPS on sea level rise (whether standalone or part of an NPS on natural hazards).
31
In terms of national direction, careful consideration should be given to what package
of national direction tools are required to fill current gaps and provide adequate
direction for RMA decision-makers in relation to sea level rise, but also to address
other key adaptation impacts. Specific issues that should form part of the dialogue
on national direction for adaptation include:
31.1
31.2
31.3
31.4
National policy statements
How are climate change adaptation issues (including sea level rise) best
addressed within the suite of NPSs? For example, what is the appropriate role
of the proposed NPS on natural hazards, and how does this fit with other
NPSs such as the NZCPS and the NPS on Freshwater Management?
Adaptation issues are also relevant in the context of proposed NPSs on urban
development, biodiversity and pest control.
In addition to providing adequate coverage of adaptation issues across the
NPSs, it will also be important to provide sufficient guidance on where
adaptation sits in relation to other national objectives, such as increasing
housing supply. The issue of competing priorities is on the Government’s
radar, with the recent Ministerial briefing on national direction for natural
hazards (Ministry for the Environment, September 2015) indicating an NPS
could include guidance on “balancing risk management with other objectives,
such as ensuring appropriate development capacity is available for housing.”
Role of other national direction tools
What role could national environmental standards play in addressing
adaptation issues? The Ministry for the Environment mooted the potential for
an NES on sea level rise in 2009, but to date has not progressed this and a
recent Local Government and Environment Committee report (2015/16
Estimates for Vote Environment) refers to the Environment Minister’s view
that there is still too much uncertainty for a rigid standard to be applied.
Similarly, is there a role for the proposed national planning template in
assisting with national consistency on adaptation issues? And what material
is best suited to non-statutory guidance, particularly bearing in mind the
rapidly evolving nature of climate science and our understanding of climate
change impacts?
092625871/4768685.4
8
CONCLUSION
32
The Paris Agreement concluded in December 2015 marks a significant turning point
in international efforts to address climate change. Assuming it enters into force
(and the current outlook is very positive), the Agreement will commit all countries to
ambitious climate change mitigation goals within a framework of nationally
determined contributions. Achieving the goals of limiting global temperature
increases to below 2°C (and 1.5°C if possible) will be challenging and cannot be
achieved in a business-as-usual environment. New Zealand has proposed a new
climate change target of reducing greenhouse gas emissions to 30% below 2005
levels by 2030, and the Government has signalled that New Zealand needs to
transition to a low carbon economy, which will include a higher price on carbon.
33
In the context of climate change mitigation, the ETS is New Zealand’s key policy
tool, with the RMA set to retain its supporting ‘good cop’ role of promoting
renewable energy (but not constraining activities based on their GHG emissions).
The RMA will also play a broader role in helping to successfully plan for a future
carbon constrained world, including taking into account the transformative changes
ahead in the transport and energy sectors.
34
The Paris Agreement should provide impetus for increased focus on adapting to
climate change. Although RMA decision-makers are already required to have
particular regard to the effects of climate change, there are considerable challenges
and gaps to be addressed. The planning profession has a significant role to play in
helping to identify which RMA tools are working and which tools need sharpening or
replacing so that New Zealand can successfully adapt to a changing climate.
April 2016
092625871/4768685.4
9