Nothing But Hot Air? Examining New Zealand’s ‘Zero Carbon’ Bill

By Alex King

In 2016 New Zealand ratified the United Nations’ Paris Agreement.[1] In doing so, we sent a resolute message to the rest of the world that we would introduce policies to dramatically reverse the effects of climate change. But to what extent is New Zealand complying with its international obligations? And, more importantly, are these obligations put forward by the UN satisfactory in the first place?

Our Response to Paris

Historically, global efforts to implement climate change policies have been faced with a nearly insurmountable obstacle: state sovereignty. [2] The nature of international law leads to situations where environmental treaties and compacts are held at the mercy of state consent. To this effect, the Paris Agreement requests countries to declare their progress under Nationally Determined Contributions (NDCs).[3] Therefore, an onus is placed on treaty signatories to uphold their commitments in domestic legislation.

New Zealand responded to the Paris Agreement by vowing to reduce our greenhouse gas emissions by 30% below 2005 levels by 2030. [4] The proposed ‘Zero Carbon’ Climate Change Response Amendment Bill would facilitate this promise, setting out a thirty-year plan with key goals being: [5]

·      A reduction of all greenhouse gases to a net zero by 2050 (except for biogenic methane)

·      Future government obligations to develop new policies centred around climate change adaptation and mitigation

·      The establishment of a Climate Change Commission that would hold the government to account on meeting climate targets

Apart from pushback from the agricultural sector (which lobbied for the exclusion of biogenic methane from the greenhouse gas reductions), the proposed Bill has received widespread support across Parliament. [6]

With the passing of the ‘Zero Carbon’ Amendment Bill, New Zealand will have affirmed its commitment to the Paris Agreement and, for the first time, codified climate change reduction into concrete domestic legislation. James Shaw, in a foreword to the Bill, stated emphatically that this reorientation of New Zealand’s environmental policy meets the scientific requirements on climate change reduction and represents the broadest consensus on how our country can adhere to its international responsibilities. [7] But is this good enough?

The ‘Zero Carbon’ Bill in Context

In 1992, climate scientists from around the globe issued a blunt warning that, without a dramatic shift in global environmental policymaking, the world will face catastrophic repercussions that severely inhibit any chances of a sustainable future. [8] Twenty-five years later the same warning was issued, albeit with more urgency. [9]

While New Zealand’s planned ‘Zero Carbon’ Bill is undoubtedly a step in the right direction for climate change reduction, the fact remains that the international community is at a point where far more is required to unravel the disastrous consequences of decades of inaction. One need only look at the slew of international agreements that have attempted to pin down effective policy change in domestic legislatures. From the Rio Declaration to the Kyoto Protocol, states have come together to profess their dedication to sustainable values without translating them into effective law. From this perspective, the ‘Zero Carbon’ Bill is unique in being the first instance where emission reduction targets have been incorporated into domestic legislation. [10]

Nonetheless, is emission reduction the most that New Zealand can commit to ensure a sustainable future? Since the 1987 Brundtland Commission, the concept of sustainable development has played a crucial role in defining environmental policy on the international sphere. [11] Defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs,” sustainable development went on to influence much of the treaties and compacts that were to follow. [12] The 2015 Resolution of the United Nations General Assembly put forward 17 Sustainable Development Goals (SDGs) that not only looked to reverse the effects of climate change, but also to ensure that all aspects of society were reconfigured to facilitate sustainable practices. [13] New Zealand again led the charge in committing to these goals, with a review of how we will go about this to be submitted to the UN in July of this year. [14] However, as per usual, there is no binding obligation to pass legislation that would adhere to the SDGs in any meaningful way.

Why is ‘Sustainability’ Important?

This is all well and good, but what relevance does sustainability have to New Zealand’s proposed ‘Zero Carbon’ Bill? If we are committed to emission reduction, then surely this will be effective in reducing climate change. In fact, New Zealand is faithfully pursuing its obligations under the Paris Agreement, so what’s the problem?

There is a growing consensus in environmental law scholarship that sustainable practices are fundamental for the protection of Earth. While reducing greenhouse gas emissions is an important step, it is but one piece to a much larger puzzle. The UN recognised this in 2015, defining sustainable development to have economic and social elements as well as environmental. [15] The interconnected nature of Earth’s systems necessitates this holistic approach. The environment cannot be considered in a vacuum, but rather states must manage all aspects of their development with regard to future resource consumption. [16]

In some respects, New Zealand is already ahead of the curve; defining sustainability in 1991 as part of the Resource Management Act. ‘Sustainable management’ was taken to mean “the development and protection of natural and physical resources in a way that enables people and communities to provide for their social, economic, and cultural well-being…”[17] However, the RMA has since been criticised for intertwining environmental protection with economic growth, in effect not going far enough in either direction to lead to significant changes. [18]

This criticism is not unique to New Zealand. In fact, the international community has consistently struggled to adequately define and implement sustainable practices. As discussed, international treaties already have a difficult time ensuring that states implement environmental policies, let alone pushing for states to reconfigure their economies to be more environmentally conscious. [19] The SDGs themselves called for economic growth alongside sustainable resource management, leading environmental scholars to question whether such a combination would even be possible. [20] To further complicate things, the SDGs do not specifically define sustainability, or what a sustainable economy would even look like in practice. [21]

Conclusion

The importance of New Zealand’s ‘Zero Carbon’ Bill should not be understated. It is the first time emission reduction policies have been codified into domestic legislation. In passing this Bill New Zealand adheres to its international obligations and sets a precedent for reversing the effects of climate change. However, at this point the question must be asked, is it too little too late? Is a reduction target of 30% below 2005 levels good enough? There is a growing amount of academic scholarship that would say no, it isn’t.

Amid the contentious debate surrounding what sustainability actually means, there is a consensus that the term is inextricably linked to the conservative and intelligent use of finite natural resources. [22] This idea largely confirms why the SDGs have since received so much backlash; what use is there in legislating for sustainable economic growth when the natural resource consumption on which the economy is based is itself unsustainable? This idea should be central to environmental policymaking going forward. It will take more than emission reduction for New Zealand to reorient itself to a sustainable society cognisant of its reliance on Earth’s natural resources. Recognition of our planets ecological systems must be inescapable in order to ensure a sustainable future.

Clearly, this would not be an easy task. Environmental treaties and compacts over the past 40 years show this to be the case. States are extremely reticent to adopt binding environmental legislation, let alone sacrificing economic growth to prioritise sustainable development. For New Zealand this may be more achievable, given Parliament’s broad definition of sustainable management in the RMA. 

Practical issues notwithstanding, a global consensus on what sustainable development means and what it takes to get there would be a realistic way to start the conversation. Unfortunately, there is no easy solution on this point either. A universal definition of sustainability will continue to elude the global community if states have influence over the treaty drafting process. But without a clear definition the UN will have no recourse to hold states to account for failing to enact sustainable policies. With the effects of global warming bearing down on us, this vicious cycle should appear more and more irrational.

Perhaps then, New Zealand’s ‘Zero Carbon’ Bill can be viewed as making the best out of a bad situation. Time will tell whether our commitments to the Paris Agreement will have any lasting effect.

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[1]  United Nations Framework Convention on Climate Change “Paris Agreement - Status of Ratification” <https://unfccc.int/process/the-paris-agreement/status-of-ratification>.

[2] Mark Janis International Law (7th ed, Wolters Kluwer, New York, 2016) at 4.

[3] Paris Agreement (2015), at 4.

[4] United Nations Framework Convention on Climate Change “NDC Registry” <https://www4.unfccc.int/sites/NDCStaging/Pages/Home.aspx>.

[5] Ministry for the Environment “Proposed Climate Change Response (Zero Carbon) Amendment Bill <https://www.mfe.govt.nz/climate-change/zero-carbon-amendment-bill>.

[6] Jane Patterson “Climate change bill, independent commission announced” (8 May 2019) Radio New Zealand <https://www.rnz.co.nz/news/political/388726/climate-change-bill-independent-commission-announced>.

[7] Ministry for the Environment Climate Change Response (Zero Carbon) Amendment Bill: Summary (Ministry for the Environment, ME 1410, May 2019) at 4-5.

[8] William J. Ripple and others “World Scientists’ Warning to Humanity: A Second Notice” (2017) 67 BioScience 1026 at 1026.

[9] At 1026.

[10] Ministry for the Environment, above n 7, at 5.

[11] Alexandre Kiss and Dinah Shelton International Environmental Law (2nd ed, Transactional Publishers, New York, 2000) at 248.

[12] Alexandre Kiss and Dinah Shelton, above n 11, at 248.

[13] Transforming our World: The 2030 Agenda for Sustainable Development UN Doc A/RES/70/1 (2015).

[14] “New Zealand’s first Voluntary National Review” New Zealand Foreign Affairs & Trade <https://www.mfat.govt.nz/en/peace-rights-and-security/work-with-the-un-and-other-partners/new-zealand-and-the-sustainable-development-goals-sdgs/nzunvnr2019/>.

[15] Transforming our World: The 2030 Agenda for Sustainable Development UN Doc A/RES/70/1 (2015) at 3.

[16] Massimiliano Montini and Francesca Volpe “Sustainable Development Goals: Much ado about nothing?” (2015) Env Liability 141 at 145.

[17] Resource Management Act, 1991, s 5(2).

[18] Geoffrey Palmer “The Resource Management Act – How we got it and what changes are being made to it” (Address to Resource Management Law Association, Devon Hotel, New Plymouth, 27 September 2013).

[19] Alexandre Kiss and Dinah Shelton, above n 11, at 247.

[20] Massimiliano and Francesca Volpe, above n 16, at 145.

[21] At 143.

[22] Massimiliano and Francesca Volpe, above n 16, at 145.