RMA amended to allow consideration of climate change mitigation

The Resource Management Amendment Act 2020 (RMAA) was given royal assent on 30 June 2020. One of the biggest changes is that the RMAA aligns the RMA and the Climate Change Response (Zero Carbon) Amendment Act 2019 (Zero Carbon Act) by requiring RMA decision-makers to consider climate change mitigation plans that are published under the Zero Carbon Act.

These amendments allow local authorities to consider greenhouse gas emissions in their plan-making and consenting decisions once national direction on climate change mitigation is promulgated under the Zero Carbon Act. Transitional provisions explain when the amendments take effect.

Why have these amendments been made?

Currently the RMA expressly prevents regional councils from considering effects on climate change when making rules or assessing consent applications relating to discharges of greenhouse gases. When these provisions were inserted into the RMA (back in 2004) such an approach was considered appropriate given the climate change policy settings in place at that time.

Since then the Zero Carbon Act has been enacted. It provides a framework by which New Zealand can develop and implement clear and stable climate change policies that (a) contribute to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5° Celsius above pre-industrial levels, and (b) allow New Zealand to prepare for, and adapt to, the effects of climate change.

The Zero Carbon Act also permits decision-makers acting under other legislation to take into account statutory emissions targets, emissions budgets and emissions reduction plans published by the Minister for Climate Change.

The Zero Carbon Act provisions conflict with the above-mentioned express provisions of the RMA precluding consideration of climate change effects. Consequently the RMA has been amended to better align it with the Zero Carbon Act so that there is consistency and support for climate change policy across these enactments.

What do the climate change mitigation amendments do?

Put simply, the climate change mitigation amendments replace the existing climate change provisions in the RMA with a suite of new provisions that allow RMA decision-makers to consider climate change.

The changes do two key things. First, they require local authorities to consider “emissions reduction plans” and “national adaptation plans” when making or amending regional policy statements, regional plans and district plans. Secondly, they allow regional councils, when considering a discharge permit or coastal permit, to consider the climate change effects of discharges into air of greenhouse gases.

The RMA allows the Minster for the Environment to “call in” from local authorities any matter the Minister considers to be of national significance, in which case the matter is referred to a Board of Enquiry or the Environment Court. The board or the court is bound by the same limits as local authorities so the above changes would apply to the board of court.

The commencement date provisions require that the climate change amendments commence on a date to be fixed by Order in Council. However, that date must be no later than 30 November 2022, and if no Order in Council is made then the climate change provisions commence on 31 December 2021.

Implications of these amendments

The purpose of the amendments is to enable local authorities to implement national direction on climate change mitigation promulgated under the Zero Carbon Act at a district and regional level. Once they take effect, the changes will influence how local authorities develop RMA policy and rules, and how they process resource consent applications.

Industries that have previously relied on the previous provisions restricting consideration of climate change when seeking resource consent may need to reconsider the feasibility of development proposals, particularly where they involve the use of non-renewable energy. For example, the gas-fired power station in Rodney, north of Auckland, that was approved in 2009 under the previous provisions (after much litigation) would be more difficult to consent under the amended RMA.

The amendments may have quite far-reaching implications. By way of an example, earlier this year the UK Court of Appeal found that the Government’s decision in favour of the development of a third runway at Heathrow Airport was decided unlawfully because if failed to consider the Government’s policy for mitigation of, and adaptation to, climate change under the Paris Agreement. Whilst there are limits to the applicability of this decision in the New Zealand context, it does indicate the breadth of projects that are potentially impacted by the climate change amendments to the RMA.

Conclusions

The amendments are part of a wider package of legislative reform designed to elevate the importance of climate change mitigation in decision-making processes at a national and local level. They will have significant implications for the work of district and regional councils in the development of RMA planning instruments and consenting processes. Some development projects that are potentially consentable under the previous provisions may not pass muster when the climate change mitigation amendments come into force.

If you have any questions about the RMAA or how the changes may impact upon resource consenting or other RMA processes please get in touch with one of the Adderley Head team.

Disclaimer: This is a brief summary for information purposes only and is not legal advice.

Posted on Monday 6th July, 2020 at 09:48 am