The unknown loophole threatening zero carbon bill

A huge legal loophole that allows high-emitting projects to ignore climate concerns could make the zero carbon bill unworkable, write Cindy Baxter and Jeanette Fitzsimons of Coal Action Network Aotearoa 

On Monday, our Prime Minister will no doubt be making statements about our “nuclear-free moment” when she attends the UN Secretary-General’s climate summit - but we doubt very much she’ll be mentioning the existence of a huge legal loophole that allows high emitting projects to ignore climate concerns. 

Many people reading the Environmental Protection Agency's decision this week to give oil giant OMV the green light to drill exploratory oil wells in our southern ocean were aghast as they read the panel’s explanation that the effects on climate change of discharging greenhouse gases into the air were “explicitly ruled out as a matter that we can have regard to”.

Wait, what? 

Time and time again during the hearings, the panel informed submitters that arguing climate change against oil drilling was specifically out of scope under the Exclusive Economic Zone Act, frustrating and outraging those opposed to any new oil drilling. 

Yes, this is the 21st century, and yes, climate change is the biggest issue of our time. And you’d therefore think our decision-makers should look at the impact of a big climate-killing project like the OMV drilling through a climate lens. But they’re not allowed to. 

In 2004, under the last Labour government, then climate change minister Pete Hodgson introduced these special clauses into the Resource Management Act (s104E and 70A). The National government later included the same clauses into the Exclusive Economic Zone legislation, which the EPA panel cited in this week’s OMV decision. 

If we want to get onto a 1.5˚C pathway, we must decarbonise our economy ... but these clauses directly prevent local authorities from considering, and acting on, the climate crisis.

We came up against this rule when arguing against Fonterra’s bid to build two huge new coal-fired boilers at its proposed dairy factory near Waimate in North Otago. And when we were arguing against the Denniston, Mount William and Te Kuha coal mines on the West Coast - and no doubt those opposing the huge new gas-fired power plant being built in Taranaki would have also tried. 

Auckland International Airport is in the middle of consent hearings around its expansion. As we know, air travel is the biggest criminal when it comes to our own carbon footprint. There is a growing global protest movement around airport expansion as a result, and you’d think Auckland Airport expansion would be the same – but it ran into the same obstacle. 

And yes, the Zero Carbon Bill, which is supposed to get us onto a 1.5˚C emissions pathway is going through Parliament at the moment, but will be unworkable unless these clauses are changed. We have made this point in our own submissions. 

So we, along with 41 other organisations - from all the big environment groups like Environmental Defence Society, Greenpeace, WWF, Forest & Bird, to youth groups like School Strike for Climate, Generation Zero, health groups like Ora Taiao, church groups and youth arms of political parties - have written to Environment Minister David Parker on this issue. Because as Minister for the Environment he is in charge of the RMA - and as he is also Attorney-General, in terms of thinking about the wider application of the law. 

“If we want to get onto a 1.5˚C pathway, we must decarbonise our economy. The urgency of the situation has been voiced by many politicians, including the Prime Minister. But these clauses directly prevent local authorities from considering, and acting on, the climate crisis,”  we wrote. 

We are asking him to urgently get rid of these clauses. He could include the changes in the RMA reform bill he’s about to introduce into Parliament. The Local Government Association annual conference passed a resolution on the same subject and its chairperson, Dave Cull, also wrote to Parker in support of our call. 

It’s time our own Government woke up and sorted this out. There’s a climate emergency to contend with and this kind of loophole is unforgivable. 

These clauses could render the Zero Carbon Act ineffective for at least two years until the second round of amendments to the RMA - and even then it’s not at all certain they would be included. Industry will push back - hard. For years, they’ve been able to hide behind these clauses as they progress with building high-emissions projects. 

At the very least, if the clauses stay, they risk kicking off a range of litigation in the courts as big climate-killing projects go through the consenting system. 

The idea behind the original placement of the clauses was as a temporary measure before national environmental standards or a carbon charge were introduced. But neither of these have eventuated, and our Emissions Trading Scheme has so far made no difference. For starters, the taxpayer subsidises most of our biggest emitters for their emissions charges under the ETS.   

What will happen when the Climate Change Commission draws up carbon budgets, only to have big projects blow them up? Hands will be tied and vested interests just want to get on with building high-emissions projects with no pesky climate change rules - a situation they have enjoyed for far too long. 

Meanwhile in Australia, which is an international pariah in terms of climate change action, the Independent Planning Commission yesterday turned down a proposal for a new coal mine in New South Wales, citing environmental concerns - specifically climate change - which it said were “intergenerational issues” that couldn’t be ignored.  

It’s time our own Government woke up and sorted this out. There’s a climate emergency to contend with and this kind of loophole is unforgivable. 

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