RMA Reform: Clause 15A's one-way blindfold on emissions
The Environment Committee has reported back on the RMA reform, recommending various changes to the Planning Bill and Natural Environment Bill (together, the Bills). These include a proposed new clause 15A to be inserted into both Bills, which would require all decision-makers under the Bills to ignore the harm caused by an activity’s emissions but permit them to consider its claimed climate benefits.
Today we have written to the Minister of RMA Reform setting out our concerns regarding the treatment of climate change and greenhouse gases as a whole under the Bills. Read the full letter, and our explanation of the key issues below.
What the Committee has recommended
When the Bills were introduced, they were largely silent on how, if at all, the effects of activities on the climate were to be considered under the new system. In our submission on the Bills, we argued this was a misguided approach, and we recommended that the Bills be amended to support the management of climate change impacts and to better complement and integrate the Bills with the Climate Change Response Act 2002 (CCRA).
However, the Committee has recommended precisely the opposite. It has recommended the inclusion of a new clause 15A in both Bills, which provides that:
15A Considering climate change effects
A person exercising or performing a function, duty, or power under this Act who is considering the effects of an activity-
(a) must not, despite section 15, consider any adverse effect on climate change of any greenhouse gas emissions that will or may result from or be increased by the activity, whether directly or indirectly; and
(b) may consider any positive effects of the activity that are associated with avoiding, reducing, removing, or displacing greenhouse gas emissions.
The rationale offered by the majority of the Environment Committee for such a serious amendment is limited to the statement that clause 15A “remove[s] any risk of duplication with the Climate Change Response Act”. This rationale does not stand up on any measure.
The premise of duplication does not withstand scrutiny
The explicit removal of consideration of adverse effects sets the Bills at odds with the scheme and purpose of the CCRA. The Supreme Court in Smith v Fonterra Co-Operative Group Ltd [2024] NZSC 5 rejected the premise that the CCRA occupies the whole field of emissions regulation; instead finding that the CCRA is a “companion measure” designed to operate alongside planning laws in relation to greenhouse gas emissions. The CCRA has never been, and was never designed to be, the sole home of climate regulation in New Zealand law.
For example, emissions reduction plans (ERPs) are among the key operationalisations of the CCRA, setting out strategies and policies to reduce greenhouse gas (GHG) emissions. However, ERPs alone do not drive emissions reductions and do not directly control or regulate emissions-generating activities. Many of the policies and strategies contained in ERPs rely on regulatory interventions to be implemented. That integrated response is cut off by clause 15A, thereby reducing ERPs' ability to achieve the necessary emissions reductions for emissions budgets, which the Minister of Climate Change has a legal duty to ensure are met.
New Zealand has run this experiment before. Earlier iterations of the RMA barred regional councils from considering the climate effects of discharges. Parliament repealed those sections through the Resource Management Amendment Act 2020 precisely because of the enactment of the Zero Carbon Act in 2019 and the disjunct with having a planning system where climate change mitigation could not be considered in plan-making or consenting. As the Supreme Court noted in Smith v Fonterra, these amendments brought the RMA and CCRA closer together. Proposed clause 15A undoes this reconciliation and, indeed, goes further than the position before the 2020 amendments.
The pre-2020 position, restored and enlarged
For example, prior to the 2020 Amendments, the prohibition on considering the adverse effects of GHG emissions applied only to discharge-related plan rules and discharge and coastal permit decisions. Clause 15A, as currently drafted, would apply to all persons exercising or performing a function, duty or power under the Bills, including the Minister responsible for issuing and developing national instruments, spatial strategies, plans, and consenting.
This approach is not aligned with New Zealand’s international obligations. Just last year, the International Court of Justice issued a groundbreaking Advisory Opinion on States’ obligations relating to climate change (the Advisory Opinion). The Advisory Opinion confirmed that states owe stringent due diligence obligations to prevent significant climate harm, and a State “may be responsible where, for example, it has failed to exercise due diligence by not taking the necessary regulatory and legislative measures to limit the quantity of emissions caused by private actors under its jurisdiction”. A planning law that prohibits all decision-makers from even considering the negative impact of emissions is the antithesis of the Advisory Opinion.
Emissions reduction and land use are entwined
The Government-appointed Expert Advisory Group's own Blueprint report acknowledged the significant overlap between emissions reduction and land use. It said the future planning system could complement emissions pricing by providing direction on matters such as renewable energy uptake and an urban form consistent with emissions reduction. The Bills instead treat climate change purely as an adaptation issue through the 'natural hazards' lens.
While accelerated adaptation is crucial, there are also limits to how much we can adapt; a rapid transition away from fossil fuels remains necessary. Development patterns locked in now through spatial strategies, plans and permits will shape emissions trajectories for decades. At the same time, the Minister of Climate Change remains under a statutory duty to ensure emissions budgets are met. If planning documents and decisions must be made with statutory blinkers on, councils may lawfully enable infrastructure that undermines the very budgets that the Minister of Climate Change is under a duty to ensure are met.
There is a legitimate policy concern that local authorities may treat emissions inconsistently in decision-making. But that concern supports clear national direction on how the adverse climate effects of an activity should be considered - including Ministers when making national direction under the Bills.
Not an isolated change
Clause 15A does not arrive in isolation. The Bills are progressing through Parliament at the same time as the Climate Change Response (Tort Liability) Amendment Bill (the TortProhibitionBill), which would bar common-law claims relating to greenhouse gas emissions. The Tort Prohibition Bill removes the common law limb, and clause 15A blinds the planning limb. Both of these moves are justified on the basis that emissions are ‘already managed’ elsewhere, at the very time New Zealanders are grappling with the effects of climate change. (For more information on the Tort Prohibition Bill, you can read our submission here).
However, as made clear in the Climate Change Commission's recent monitoring report, New Zealand’s current response is not meaningfully managing emissions. The second emissions budget is increasingly at risk, and current plans and policies are insufficient to meet the third emissions budget or the 2050 Target.
What should happen now?
As we have set out in our letter, clause 15A should be removed or amended at the committee of the whole House stage. We reiterate what was said in our submission to the Select Committee. The CCRA should remain the primary statutory mechanism for emissions reduction. But primary does not mean exclusive. Our environmental and planning laws will govern the land-use decisions that determine whether New Zealand's climate commitments are achievable. Legislating to make those laws deliberately blind to climate harm, while keeping one eye open for claimed climate benefits, is setting New Zealand up for failure.
Written by Molly McDouall, Solicitor.