An offshore drilling platform (Getty Images)

PoliticsJune 13, 2019

Ludicrous but true: mining consent decisions don’t factor in greenhouse emissions

Guest writer

An offshore drilling platform (Getty Images)

Those trying to oppose an “ambitious” offshore drilling project on the grounds of climate change are out of luck. Green MP Gareth Hughes explains why, and sets out his views on what should be done about it.

Update, 14 June: the Petroleum Exploration and Production Association of New Zealand (PEPANZ) has responded. Their comments are appended to the end of this article.

Today, in 2019, if I wanted a consent to drill a deep sea oil well, or mine for coal, the greenhouse gas pollution produced would be considered, right? Wrong. Thanks to laws passed under previous Labour and National governments, climate change pollution cannot be considered in consent applications.

You might have heard about the ridiculous situation facing OMV’s application to drill for fossil fuels in the Great South Basin, offshore Otago. OMV is an Austrian oil and gas company, listed as one of the 100 companies responsible for seventy percent of modern global climate pollution. They have applied for marine consents to drill up to ten wells. This has been described as one of the most ambitious drilling programmes in New Zealand’s history.

Two hundred and sixty people have made submissions arguing against the climate impact of drilling for fossil fuels. But their main point can’t even be considered, despite science telling us that these are fossil fuels we can’t afford to burn.

Thanks to the law that governs how the Environmental Protection Authority (EPA), considers the application, we have an ironic situation. The public get to submit on “…the immeasurable trace quantities of potentially harmful substances that may – if spilled – end up washing off the deck of a drilling rig through its rainwater run-off systems,” but not climate change.

The very thing that’s melting the poles and glaciers; changing global weather patterns; causing stronger storms, floods and droughts; killing coral, increasing sea levels and threatening the greatest extinction event in millions of years can’t be considered, nor the fossil fuels that are causing it.

The fact greenhouse gas emissions cannot be considered is not an anomaly or an accident, it’s a design feature. The EPA is actually barred from considering the greenhouse gas emissions under our EEZ Act, passed under the previous National government. I tried to amend this law when it was passed in 2012. National’s argument was that the EEZ Act, which deals with applications in our Exclusive Economic Zone at sea, simply mirrored our main terrestrial environmental law, the Resource Management Act.

Like OMV’s case, this led to the farcical situation where Nova Energy wanted a consent to build a huge new 360 MW power station to burn fracked gas – a potent fossil fuel – but the pollution couldn’t be considered. I worked with the community, local iwi and 3000 petitioners in response to this application. In submissions, people could comment on the impact of the dust off the roads coming from the trucks building the power station, but not the 425-817,000 tonnes of carbon dioxide it would release!

I won’t bore you with all the legislative language (but here is a fascinating legal history), however, I will say that cases which have gone as far as our Supreme Court have shown that Section 104(1)(a) of the RMA prevents local authorities from controlling emission of greenhouse gases. In addition, the discharge of carbon dioxide as a result of burning coal is irrelevant to whether consents should be granted. Should climate change be irrelevant to our major environmental law?

The previous Labour-led government considered that emissions were best left to central over local government. This train of thought was continued under the National government. They thought that the actual discharge of pollution to the air could be dealt with by a carbon price and a National Environmental Standard… which never arrived. Sir Geoffrey Palmer QC, the original architect of the RMA writing in 2015 said “So New Zealand’s key environmental statute is disabled from considering what is a critical issue relating to climate change” and followed on to say “…the mitigation of global warming under the RMA is important and the law as it stands is clearly deficient.”

In 2006, former Green Party co-leader Jeanette Fitzsimons tried to repeal the climate provisions that had created a “huge hole” in the RMA. “Putting a price on carbon is a useful thing to do, but we actually have to deal with climate change at every level of the economy,” she said. “We have to deal with it in regional and local councils, we have to deal with it in businesses, we have to deal with it as individuals, and we have to deal with it internationally. Nobody can challenge a company’s right to burn oil, coal or gas in a way that is possible to challenge the right to take water or use the wind. Meridian Energy said that that created an un-level playing field, and I agree with that.”

As scientists warn, and many countries and New Zealand councils can attest, we are facing a climate emergency. New Zealand’s greenhouse gas emissions are among the highest in the world per person and have continued to rise unabated for decades. It’s ridiculous in this day and age that the pollution that is causing the crisis can’t be considered in an application for a coal mine, oil well or new intensive dairy farm. Charles Dickens once wrote “the law is an ass”. In this case it’s a threat to survival.

Later this year the government will be considering an RMA Amendment Bill. The Green Party will be working hard to persuade our partners in parliament to redress this damaging, historical flaw in our environmental law.

CEO of Petroleum Exploration and Production Association of New Zealand Cameron Madgwick responds to Gareth Hughes:

Before I start making this case, let’s be very clear: climate change is a real and serious issue the world must respond to by lowering greenhouse gas emissions from all sources.

My concern with Gareth’s article is that it gives the impression our laws don’t consider this issue. In reality they do in a number of ways, but most importantly through the Emissions Trading Scheme (ETS) which puts a price on emissions.

This is far and away the best policy tool because it gives flexibility for people to find the best ways to adapt. It means lower emitting energy sources like natural gas are more likely to be developed ahead of higher emitting sources.

The RMA and EPA processes rightly consider the direct impacts of activities, but as it happens there are very few direct emissions from drilling. The emissions come from the burning of those fuels (i.e. when they are used) and the ETS applies to that.

This is why successive Labour and National Governments have avoided changing the law in the way Gareth argues for, because the ETS already addresses the issue of emissions.

Remember too there are many uses of natural gas and oil that don’t involve burning anything. Everything from medical products, cellphones, computers, plastics and clothing are all made using petroleum products.

The policy tools we use are very important because they have real costs to New Zealanders. NZIER estimates ending new exploration permits could cost $28 billion and the Government’s own commissioned research thinks growth in GDP could shrink between 10 – 21% as a result of the Zero Carbon Bill.

What this means is that policies should focus on lowering emissions at the least possible cost to New Zealanders. Complicating the RMA and EPA in the way Gareth suggests wouldn’t achieve that.

It’s worth pointing out how important this drilling is to New Zealand, given new figures show we have just 11 years of natural gas reserves left.

Around 400,000 New Zealand homes, schools, hospitals and businesses rely on natural gas. It provides energy for cooking, heating and hot showers and powers many of our factories and industries.

It’s also helping us transition to a lower carbon world. Natural gas has half the emissions of coal, and it enables renewable electricity by providing a crucial back-up at the flick of a switch.

A strong supply of New Zealand natural gas means we could reduce the amount of coal we burn, keep electricity prices down and avoid the need to import LNG from Australia.

Finally, we actually agree the current law is crazy… but in a different way. Taking public submissions over the discharge of a 250ml cup is expensive and totally unnecessary. Once again, it’s not the best use of anyone’s time or resources!

Keep going!

The Auckland skyline (Photo: Getty Images)

PoliticsJune 13, 2019

How the law stands in the way of Auckland combatting its climate emergency

Josie Adams

Contributing writer

The Auckland skyline (Photo: Getty Images)

Auckland Council declared a ‘climate emergency’ yesterday, but campaigners say there are legal impediments to it making truly impactful decisions. Josie Adams speaks to those wrestling with New Zealand’s sometimes bizarre environmental legislation.

Yesterday Auckland Council joined counterparts in Canterbury, Kāpiti and Nelson in unanimously declaring a climate emergency. The resolution has little power on its own, but demands action to meet the strength of its language. At a national level, defence minister Ron Mark admitted this week that much of the $20 billion in upgrades the defence force is receiving will be used to combat the effects of climate change in the South Pacific. Yet while central government acknowledges a global climate emergency, regional centres like Auckland are hamstrung by laws which can make its consideration difficult or impossible.

For example, under current legislation, the Environmental Protection Authority can’t consider objections to marine drilling based on climate change. The Resource Management Act specifically mentions climate change, but suggests councils adapt to it instead of preventing it.

“It definitely causes problems,” said Penny Hulse, chair of Auckland council’s environment and community committee. “There are some projects we’re not able to prevent going forward.” In Auckland, there’s concern at the council surrounding future flooding, but there’s currently little it can do to prevent further erosion as this would count as addressing a source, not an effect, of climate change.

Siddhartha Mehta of youth-led climate change organisation Generation Zero agrees the RMA is a roadblock to progress. “The rule structure within the council is getting in the way of them doing more,” he said.

With a small amendment, the RMA could give more power to councils. By adding a clause that authorities consider the future impact of using a resource like oil or gas, councils would have the power to reject projects which are likely to worsen the climate crisis. At the moment, it’s difficult for a council to refuse drilling and mining companies permits, because they don’t have clear legislation to fall back on.

One amendment Generation Zero recommends is to the Public Finances Act. “That could be changed to incorporate contracting that considers emissions effects,” said Mehta. “So whatever you’re contracting out for, they consider future emissions. That’s a good way to change the rules so policymakers within the council start acting differently.”

The recently-introduced Zero Carbon Bill could be a changemaker. A new section, 5ZK, allows the 2050 target and emissions budgets to influence broader government decision making. If passed, this will factor into future policy and permit decisions, empowering Auckland Council to make more environmentally-friendly choices in the future.

While other cities around the country have declared a climate emergency, Auckland has the potential to make the biggest difference. “As a large urban centre, if this city can’t get it right then it’s pretty dire,” said Mehta.

Even without amendments to the RMA, there’s still meaningful action Auckland Council can take. “They’ve created a public mandate for an emergency, but they need to create the policy mandate within their councils as well and drive that ahead,” said Mehta. “That means pulling forward the timeline on things like public transport funding, different access modes, and urban planning – we’re still building suburbs out on the fringe of the city that are car-dependent!”

Hulse agreed it was frustrating how little the council could do. “I’ve been working in this area for 30 years, and it’s been difficult at times,” she said. “But I think at the moment, most of the time, central government is doing what they can.” One of her priorities at the moment is pulling forward timelines for alternative energy transport options like electric busses.

Both are concerned with acting on the climate emergency in a way that considers locals first. “It would be great for the government to work together with each region to implement change properly,” said Hulse. Mehta agreed that it’s a more complex issue than can be met by sweeping national policies. “We don’t want the haste implied by the emergency to cause the council to act in a way that bypasses any necessary consultations with stakeholder groups, especially with tangata whenua and with already-marginalised lower-income households who might already be prone to climate risks,” he said.

“We need to act with speed, but also centre it with justice.”

There’s a political space opening up for those who want climate change to be taken into consideration by local government far more frequently than is currently the case. “I’m hopeful,” said Hulse. “Our ten-year plan will be a first for the country.” The ten-year plan she’s referring to is the 2021-2031 budget plan, which will use climate and environment as a cornerstone of its decision-making. “It will be transformative for the city.”