Topic / Climate Change

“Climate refugees” revisited: a closer look at the Tuvalu decision

Vernon Rive . 14/08/2014 11:41:04 p.m.

The origin of phrase “environmental refugees" is typically credited to a United Nations Environment Program researcher Essam El-Hinnawi in a 1985 paper with that phrase as its title. The concept of “Climate change refugees” had been in circulation amongst academic and NGOs circles since the late 1970s and in recent years has entered popular consciousness through widespread media coverage assuming ever-increasing levels of drama and sensationalism.

In the South Pacific context, the high water mark of media spin on the issue might be represented by Al Gore's mention in his 2006 documentary An Inconvenient Truth of the supposed evacuation of the residents of a number of  low-lying islands in the Pacific Ocean to New Zealand because of the effects of global warming, an observation specifically rejected as baseless in the 2007 UK High Court decision in Dimmock v Secretary of State for Education and Skills.

Widespread and consistent rejection within academic and policy circles of both the concept and terminology of "environmental refugee" or "climate change refugee" has not, it seems, deterred commentators (and even some non-governmental organisations (PDF) who should know better) from continuing to adopt the labels.

So it has been no particular surprise that when a family from Tuvalu holding expired visitors permits appealed to the New Zealand Immigration and Protection Tribunal against deportation citing, amongst other things, hardship resulting from climate change-related environmental degradation in their home country - and secured the right to stay (PDF) - another round of sensationalist international media coverage has ensued.

As is typically the case with the reporting of court decisions, within the confines of a six-sentence story or three-minute clip, subtle (and sometimes not so subtle) points are overlooked or misreported.  The surface needs scratching a little deeper.  

This article by Prof Jane McAdam at UNSW Law does exactly that.  Prof McAdam has published widely on issues of forced migration and has rightly established a reputation as a leading international academic researcher, analyst and advisor on displacement/forced migration and refugee law.  She's been living and breathing climate change-related international and domestic law for many years and has unsurprisingly become the ‘go to' legal academic for commentary and advice on these issues.

My analysis generally lines up with hers on the interpretation and significance of the NZ IPT Tuvalu decision.  But I draw some additional, and possibly slightly different, points from the case to those outlined by Prof McAdam.  

We both agree that media descriptions of the IPT decision as "the first climate refugees" are wildly off the mark.  The Tribunal devoted 37 pages of carefully reasoned analysis to conclude exactly the opposite.  Like the earlier case dealing with i-Kiribati national Ione Teitiota and his family, the IPT (affirmed on appeal by New Zealand's High Court, and then Court of Appeal) held - uncontroversially from the perspective of most refugee practitioners and commentators - that although the impacts of climate change on low-lying atoll such as Kiribati and Tuvalu are real and concerning, except in very specific circumstances (which did not apply in either case) people fleeing climate change are not "refugees" in the legal sense.  Nor could they be regarded as "protected persons" under the International Covenant on Civil and Political Rights or the Convention against Torture.  

Where the recent case involving a Tuvaluan family differed from the line of decisions in the Teitiota litigation was that the appellants from Tuvalu were able to appeal against deportation under a particular provision of New Zealand's immigration legislation: section 207 of the Immigration Act 2009.  It states:

The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

The statutory references to "exceptional circumstances" and "in all the circumstances" require, as you would expect, the full factual matrix surrounding the appellants and their appeal against deportation to be analysed.  That is what the Tribunal did.  

There were a number of compelling circumstances which took the case out of the ordinary.  The Tuvalu-based husband was among the remnants of a sizeable family which had effectively relocated to New Zealand. All but one of his six sisters had secured residency in New Zealand and established a strong family base here.  His elderly mother - also resident in New Zealand - required care and support relying on her son to perform that role.  The couple had produced two children while in New Zealand. They were well settled and integrated into their New Zealand family and society.  It appeared that there may have been legitimate “pathways” to legal residency which, had they been better pursued at the right time, would have regularised their New Zealand residency.

Alongside the family circumstances and facts relating to the residency process, factors relating to climate change were also advanced, and accepted as factually credible by the Tribunal.  These included regular events of seawater inundation resulting in coastal erosion and impact on food production.  Referring to the 1989 United Nations Convention on the Rights of the Child, the Tribunal recorded a specific finding (at paragraph 25) that the young age of the two children (five and three years):

“…makes them inherently more vulnerable to natural disasters and the adverse impact of climate change as noted above.”

As Professor McAdam notes, “in the end, the Tribunal allowed the family to stay in New Zealand on humanitarian grounds.” She goes on to note:

“The Tribunal’s decision to let the family stay in New Zealand as permanent residents was not based on the impacts of climate change in Tuvalu. Indeed, the Tribunal deliberately refrained from making a finding on this point. It did not need to do so because there were other exceptional humanitarian circumstances – namely, strong family ties – that justified granting them resident visas.”  

I agree that the decision was not "based on” the impacts of climate change in Tuvalu.   The evidence and submissions relating to climate change-related hardship that would be suffered if the family were required to return would not, alone, have been enough to satisfy the stringent "exceptional humanitarian grounds" test. It’s fairly clear that the family would have been granted humanitarian relief in any event because of the other compelling factors at play.  

However – and this is where I take a slightly different tack to Professor McAdam – that is not to say that the climate change-related factors were not taken into account at all as part of the wider factual assessment required under section 207.  

As I read the decision, the Tribunal accepted not only that the climate change-related factors cited on behalf of the Tuvaluan family were legally relevant in principle, but were in fact taken into account when reaching a conclusion on exceptional circumstances of a humanitarian nature.  I take that point from paragraph 30:

[30] The Tribunal is satisfied that, when the above matters are taken into account on a cumulative basis, there are exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand.

The “above matters” were not specifically identified in paragraph 30. Paragraph 30 is immediately preceded by three paragraphs under the heading "Climate Change and Environmental Degradation as a Humanitarian Circumstance”.  In paragraph 29 (directly “above” paragraph 30) the Tribunal refers to the companion refugee and protection decision in the same set of appeals, and cites a passage from para [16] of that decision:

“…Population growth was already placing pressure on sensitive environments and major sources of food security and livelihoods, and these effects can be exacerbated by adverse effects of climate change. Drought was anticipated to increase in severity in the future. The low elevation and limited land area of Tuvalu meant that the most direct and severe anticipated effects of climate change will be an increasing risk of coastal erosion, flooding and inundation. Other anticipated direct effects were stated to include an increase in dengue fever risks and water borne diseases, an increase in human stress, and decreasing agricultural yields.”

I think the natural interpretation of the words in paragraph [30] is that the Tribunal had regard to all of the surrounding facts and circumstances - the climate change-related ones alongside the family connections and other matters.  Climate change was not an overriding factor. But it was there as part of the mix.  The combination of the strong familial connections in New Zealand, the husband’s obligations towards his mother, the peculiarities of his residency application process, and the climate change considerations cumulatively amounted to "exceptional circumstances of a humanitarian nature, which would make it and just or unduly harsh for the appellants to be removed from New Zealand."

The Tribunal - no doubt acutely alive to the potential for further applicants relying on climate change-related circumstances - considered it necessary to manage expectations regarding that issue.  At paragraph 33, it said:

“It is not, however, necessary on the facts of this appeal to reach any conclusion on this [climate change] issue in relation to any of the appellants as the Tribunal is satisfied that by reason of the other factors identified in this case, there are exceptional circumstances of a humanitarian”

In the context of the decision as a whole, I don’t read that as inferring that the climate change factors were put to one side entirely.

If that had been the intention, paragraph 30 would sit a little awkwardly: at best ambiguous (was the reference to "above matters" meant to be to everything above except climate change, or, something broader?) at worst, just inconsistent with paragraph 33.  And I'm not sure that the acceptance of the “inherent vulnerability of the young children to natural disasters and the adverse impact of climate change” would have been conveyed in the unqualified words of paragraph 25 if, ultimately, the Tribunal proposed to put all of this to one side.  

So does it matter if climate change factors were or weren't taken into account as part of the assessment on exceptional humanitarian grounds in this particular case?  I think so.  

It's one thing to hold that the hardships on adults and children resulting from climate change in low-lying states such as Tuvalu and Kiribati might theoretically be relevant humanitarian circumstances but No Finding is Made In This Case. It’s something else to say that these climate change related factual circumstances are relevant, and because they are relevant, form part of the (inevitably wide) matrix of circumstances that will always need to be assessed cumulatively, on a case by case basis.  Perhaps in a future IPT decision the point will be clarified. I think the latter interpretation fits, not only with a natural reading of the case, but the policy and legal framework.  There’ll be other views, of course.  

The Tribunal appropriately clarified that it is not enough to claim to be impacted by climate change to get over the line on exceptional humanitarian grounds.

To my mind, it is not necessary to read down the decision any more than that.

By Vernon Rive on 14/08/2014 11:41:04 p.m. | Comments (0) | Print

Formerly New Zealand’s Fourth Most Climate Refugee

Vernon Rive . 22/10/2013 1:14:52 a.m.

Over the last fortnight, international media have lavished attention on a decision (PDF) of the humble New Zealand Immigration and Protection Tribunal with an energy usually reserved for political scandals or celebrity breakups. Outlet after outlet have breathlessly heralded the bid for asylum in New Zealand by a 37-year old resident of low-lying Pacific atoll Kiribati as 'the world's first climate refugee', seemingly oblivious to the fact that 'first’ label has already been used to describe climate-displaced communities in Alaska, Papua New Guinea, and Tuvalu.

In fact, the Kiribati citizen’s attempt to secure refugee status in New Zealand because of climate change is not the first case of its kind to come before our immigration authorities. In 2000, a group of applicants from Tuvalu unsuccessfully sought refuge in New Zealand, citing rising sea-level and other challenges as grounds for asylum.  The IPT’s predecessor, the New Zealand Refugee Appeals Authority, dismissed the claims (PDF), saying “This is not a case where the appellant can be said to be differentially at risk of harm amounting to persecution due to any one of these five [Refugee Convention] grounds. All Tuvalu citizens face the same environmental problems and economic difficulties living in Tuvalu.”
What makes the most recent IPT decision notable is the depth of analysis of Member Bruce Burson's examination of the i-Kiribati case under international refugee and New Zealand domestic immigration law.

And what makes the case news - big news all over the world - is that unlike most applications of this sort, this one has been taken to the High Court. So there is significant interest in what will be one of the first appellate rulings on issues which have been the subject of widespread academic debate, but hardly ever face detailed scrutiny by appellate judges.

The IPT's findings in its 25 June decision reflected mainstream views on the status of so-called ‘climate refugees’ at international law. The 1951 Refugee Convention, originally designed to address the legal status of millions of displaced people after the Second World War was crafted with quite different purposes in mind, and certainly well before the spectre of climate-displaced persons had entered public consciousness.

Despite the creative attempts of some lawyers and academics to argue otherwise, the Refugee Convention doesn't cover environmentally displaced people. It is almost certain that the High Court will confirm this in its reserved decision in a few weeks.

Acknowledging the widely accepted 'protection deficit' (PDF) at international law, international organisations have, for some time, been working on possible solutions. Earlier this year, the Norwegian and Swiss-led Nansen Initiative held a  first round of consultation meetings in Raratonga to work towards arrangements to address the ‘needs of people displaced across international borders by natural disasters, including the effects of climate change.’

In light of predictions (PDF) of hundreds of thousands of  climate-displaced people in the South Pacific by 2050 – a reasonable number of which can be expected to look towards New Zealand’s relatively safer shores for homes - is the Government working on a proactive response plan? Not so much. Papers that I obtained from MFAT under the Official Information Act earlier this year confirm that the government is aware of the issue, but is content, at this stage, to adopt a 'wait and see' approach. In a January 2013 MFAT briefing paper to the Associate Climate Change Minister, officials advised:

“‘[E]nvironmental refugees’… have no current status under international law…New Zealand has indicated that it will continue to respond to climatic disasters in the Pacific and manage changes as they arise…"

Media reporting that New Zealand has agreed to take ‘environmental refugees’ from Tuvalu…is incorrect.  There is no such policy.  However New Zealand will continue to monitor the situation and provide climate change assistance and disaster relief as it has always done.”

For now at least, would-be climate migrants from the Pacific and elsewhere seeking refuge in New Zealand continue to face deportation and an uncertain future in home countries increasingly at risk from the effects of global warming.

By Vernon Rive on 22/10/2013 1:14:52 a.m. | Comments (0) | Print

Topic / Climate Change

Groser finally 'fesses up: no Kyoto CP2 for New Zealand

Vernon Rive . 9/11/2012 5:23:30 p.m.

The news has broken today that New Zealand will not participate in a second commitment period under the Kyoto Protocol.

Since the last round of UN climate talks in Durban, December 2011, New Zealand politicians have been studiously avoiding being drawn on whether New Zealand would join the EU and other nations in a second commitment period under the Kyoto Protocol, whose first legally binding commitment period expires in less than eight weeks. As recently as the end of October, acting Climate Change Minister Simon Bridges was quoted as saying that the Government had "not made a decision" on its commitment.  So, today's announcement doesn't exactly come as a surprise.  However, it will be viewed by many as further evidence that the current administration has no real intention of maintaining New Zealand's historic international leadership position on climate change mitigation.

In effect, New Zealand will not be subject to an international legally binding commitment to reduce emissions for the period 2013-2020. It hasn't retreated from its voluntary commitments (first made as part of the Copenhagen Accord in 2009 and confirmed in Cancun in 2010). But it is "keeping its powder dry" on legally binding commitments pending the outcome of the new global treaty negotiations which began in earnest in Doha in a few weeks.

Today's announcement contrasts starkly with Friday's news that Australia will sign up to a second Kyoto commitment.  Like Minister Groser, Australian Climate Change Minister Greg Combet has acknowledged the need for a global treaty. However unlike his New Zealand counterpart, Combet has frankly accepted that without action being taken now, the Australian economy would face a "severe economic shock" from 2020 (the date earmarked for commencement of a yet-to-be-negotiated global treaty).  Combet observed with some force, “it is better to tackle it now”.  With New Zealand's primary policy instrument for climate change mitigation - the ETS -  in what might be described as a politically induced coma, the same might be said of New Zealand.

By Vernon Rive on 9/11/2012 5:23:30 p.m. | Comments (2) | Print

One Leviathan is enough: nuanced ruling from Whata J on climate and the coal consent process

Vernon Rive . 6/09/2012 8:35:05 a.m.

In a wide-ranging judgment delivered on 24 August 2012 containing Whata J’s most detailed discussion of the scheme, principles and provisions of the Resource Management Act 1991 since his appointment to the High Court Bench in March 2011, the High Court has ruled that climate change considerations of two controversial South Island coal mining proposals are legally irrelevant when assessing land use applications under the Act.
The decision ends a period of uncertainty for the subsidiary of Australian mining company Bathurst Resources Limited as well as beleaguered SOE Solid Energy triggered by declaration applications to the Environment Court by two environmental groups (Royal Forest and Bird Society and West Coast ENT) in March.  The groups had asked for Court determinations that the effects on climate change from millions of tonnes of CO2 that will be emitted when coal from the Mt William North and Escarpment mines is burnt in steel-making factories in India, China, Japan, Brazil and South Africa should be considered during the land use consent process for the mines under the RMA.

In April 2012, acting Principal Environment Judge Newhook ruled in the miners’ favour.  He held that the RMA, as amended by the Resource Management (Energy and Climate Change) Amendment Act 2004 contained no “ambiguity, uncertainty, or room for discretion or “choice"…" regarding the ability to consider the effects on climate change linked with the proposals at issue.  RFBS and West Coast ENT appealed to the High Court.

Whata J’s decision is a sequel to a series of contentious cases between 2006 and 2008 involving Greenpeace, Mighty River Power and Genesis Energy concerning the proposed ‘Marsden B’ coal-fired power station in Northland and gas-fired power station in Rodney.   That litigation culminated in a majority decision of the Supreme Court that in light of the 2004 amendments, consent authorities could not consider the adverse impacts on climate change when assessing applications for air discharge consent needed for non-renewable energy generation projects.  The Court held that the purpose and associated provisions of the 2004 amendments made it clear that Parliament intended that climate change effects from non-renewable energy projects should be regulated at the national level (such as through the emissions trading scheme established by the Climate Change Response Act 2002) and not on a case-by-case basis by regional councils assessing a discharge permit applications.  

The Greenpeace litigation concerned the relevance of climate change effects when assessing applications for air discharge permits for New Zealand-based non-renewable energy projects. What it did not explicitly deal with was whether councils (and the Environment Court on appeal) could consider the effects on climate change when assessing land use applications.   Nor had the Supreme Court addressed issue of whether the fact that extracted coal would be exported and burnt overseas made any difference to the legal position under the RMA.

Those issues were at the heart of the March and July 2012 hearings.

In the Environment Court, counsel for the environmental groups (which included Sir Geoffrey Palmer) argued that neither the 2004 amendments, nor the Supreme Court decision in Greenpeace and created any impediments to considering impacts of climate change from the ultimate burning of mined coal when assessing land-use consents for the mining projects. The Greenpeace cases revolved around interpretation of a particular provisions (104E) which the Supreme Court had accepted explicitly prohibited consideration of climate change and impacts from non-renewable energy projects.  But that provision was not engaged in the present case. Counsel argued that the provision governing the assessment of land-use applications (s104(1)(a)) contained no prohibition - explicit or implied - on considering the downstream climate change impacts of coal combustion. Whether the coal was ultimately burnt in New Zealand or elsewhere, on a plain reading of the section and in light of the sustainable management purpose of the RMA, the adverse impacts on climate change should be considered.

Submissions on behalf of the environmental groups were rejected by the Environment Court in a succinct 14 page decision, which dismissed each of the contentions in short order.  

Whata J reached the same essential position.  However his more detailed decision provides a more nuanced analysis of the issues that will be of general interest to legal, planning and environmental practitioners - whether involved in non-renewable mining and energy generation facilities or not.

Whata J conceded that it might be “intuitively attractive" to treat s104(1)(a) RMA as conferring “a broad or unfettered discretion … to consider the effects of land-use activities, including the greenhouse gas effects of related secondary uses.”  However he reached the view that as a matter of interpretation, the scheme of the Act (as amended in 2004) created a necessarily implication that climate change impacts should not be considered when assessing a land-use application, unless a relevant national environmental standard had been promulgated.

On the question of overseas discharges, His Honour acknowledged that unlike discharges within New Zealand, those discharges could never be the subject of national environmental standards.  So, it could well be that “they will not be subject to assessment under the rubric of sustainable management".  However he found that because nothing in the RMA confers powers to regulate activities extra-territorially, there is simply no jurisdiction under the RMA to consider the effects of coal burning in other countries:

“One leviathan of environmental law (i.e. the RMA) is more than enough for lawyers, experts, environmental managers, planners, the local authorities and the courts of this country. The prospect of a district council assessing whether an end use of coal… is subject to sustainable environmental policy… in Cambodia … China, in Japan or Brazil, Zimbabwe or Kenya… is palpably unattractive.”

RFBS and West Coast ENT have confirmed that they will continue to oppose the mining proposals.  But climate change effects will not be amongst the matters able to be advanced in any future hearings.

(Article in forthcoming Spring 2012 issue of AUT Law School Newsletter AUTlaw)

By Vernon Rive on 6/09/2012 8:35:05 a.m. | Comments (1) | Print

Topic / Climate Change

Coal mines, climate change and test cases: initial thoughts on Buller Coal

Vernon Rive . 12/06/2012 5:22:04 p.m.

A feature of New Zealand environmental litigation over the past 30 years has been the willingness of individuals and organizations to venture into the uncertain and at times perilous waters of the courts to test points of law, policy or expert opinion on issues regarded as significant from a public interest perspective.  

In some cases individuals, community or environmental interests have succeeded in securing rulings favourable to their positions.  Select examples include  Environmental Defence Society v Mangonui County Council
, Otorohanga Heritage Protection Group v Otorohanga District Council, and Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development.

As often as not, cases brought by environmental groups are unsuccessful.  The manner of the courts’ disposal of such cases varies.  It is not unusual for applications or appeals to be dismissed in fairly short order, with costs awards against the community or environmental interests.  That is especially the case where the position advanced is judged to be untenable, motivations are assessed as clouded, or the way in which the case has been brought and argued lacks focus or adopts an intransigent approach.  

But where the issues are seen as important, the points on appeal or raised by an application tenable, the case prepared well and argued reasonably, judges (even when ultimately unpersuaded by an applicant’s or appellant’s case) acknowledge explicitly or implicitly the import and utility of having significant issues of law, evidence or policy put through the rigours of a court process.   In these cases, there seems to be recognition that there is societal benefit in having matters of public interest and concern tested, in circumstances where if not brought before the court by community or environmental interests, those issues will remain unexamined.

Two 2002 decisions issued concurrently by the Environment Court presided over by Judge Whiting concerning challenges based on the climate change effects of proposed combined cycle power stations are examples of implicit acknowledgment of the points above.  Dismissing appeals brought by the Environmental Defence Society against decisions of the Taranaki Regional Council and Auckland Regional Council, the court declined to impose conditions on discharge consents for generation facilities in Taranaki and South Auckland.  The reasons included the Court’s “considerable disquiet about the efficacy, appropriateness and reasonableness of such a condition.”  Yet a review of both decisions conveys little sense of misgivings at the use of Court time and processes to test matters of perceived significance, even if the prospects of success were always faint.

The content and tenor of the 30 April 2012 decision of the Environment Court in Buller Coal Limited v West Coast ENT Incorporated [2012] NZEnvC 40 (PDF) stands in marked contrast to the 2002 EDS decisions. Buller involved competing applications for declarations by Buller Coal and Solid Energy on the one hand, and environmental groups West Coast ENT and the Royal Forest and Bird Society on the other.  Both sets of applicants sought rulings on the jurisdiction and obligations of decision-makers under the Resource Management Act 1991 to consider the consequential effects on climate change of the grant of land use consents for coalmining activities taking place in New Zealand.  

At the heart of the case were arguments over the proper interpretation of sections 7(i), s104(1)(a) and the meaning of “effect” considered against the statutory and legal backdrop of the Resource Management (Energy and Climate Change) Amendment Act 2004 and decision of the Supreme Court in Greenpeace New Zealand Incorporated v Genesis Power Limited (PDF). The Court ruled in favour of the coalmining companies.  It held that the consequential effects on climate change of discharges of greenhouse gases to air resulting from the combustion of coal could not be considered in the context of hearings on applications for land use consent.

As other commentators have noted, the outcome is not so surprising.  It is consistent with the theme of the 2004 amendments, the majority judgments of the Supreme Court in the 2008 Greenpeace decision as well, of course, as the first instance Environment Court decision which the Supreme Court effectively upheld.  

What is interesting - and from this commentator’s perspective at least, surprising -  is the short shrift given to arguments by counsel (including Sir Geoffrey Palmer for West Coast ENT) for the environmental groups.  The Greenpeace litigation involved a challenge - always likely to be a difficult one - to the conventional interpretation of a provision in the RMA (section 104E) addressing the relevance or irrelevance of the effects on climate change when assessing an application for consent for discharges to air.  Despite those challenges, the Greenpeace position (similar in approach to that adopted by the environmental groups in Buller) found favour with Williams J in the High Court and (in her minority judgment) the Chief Justice in the Supreme Court.

Unlike the Greenpeace case, the Buller Coal proceedings concerned the interpretation of a ‘standard’ RMA provision (104(1)(a)) governing the assessment of effects of an application for consent, not being an application to discharge greenhouse gases to air.  On this issue, all parties agreed that the statutory framework was not identical to that which confronted the Supreme Court in the 2008 proceedings.  Section 104(1)(a) contains no statutory prohibition against considering effects of land use activities on climate change. Nor does the definition of “effects” in section 2.  There seemed to be an argument at least to be had.  The Environment Court clearly thought not, stating “… I am not persuaded that there is any discretion concerning interpretation, or any ambiguity, or choice” (emphasis added).  Costs were reserved.

It has been reported that an appeal to the High Court against the Buller decision is to be lodged. Coalminers and environmental groups alike will await with keen interest not only the outcome of the appeal but also, perhaps, views from the High Court on the appropriateness and utility of environmental groups bringing test cases on issues such as these.

(This is an adapted version of a forthcoming editorial in the June 2012 issue of Resource Management Bulletin)

By Vernon Rive on 12/06/2012 5:22:04 p.m. | Comments (0) | Print

Groser and Smith on Kyoto: Just ducking out for a bit. We may be some time.

Vernon Rive . 15/12/2011 10:53:12 p.m.

By now you’ll know that in the early hours of Sunday morning a deal was thrashed out by the 194 members of the United Nations Framework Convention on Climate Change which, for better or worse, will guide the course of international climate law for the next decade or so.

The key components of the “Durban Platform” include agreement in principle by a select group of countries led by the European Union to sign up for a second commitment period under the Kyoto Protocol, establishment of a $100 billion “Green Climate Fund” and high-level commitments to work towards a comprehensive climate agreement that – eventually, and hopefully – will coordinate and regulate emissions reductions commitments by developing as well as developed countries. 

The new proposal is presented as one which will draw in climate-pariah states such as the USA, as well as China and India.  But the price of doing the deal was the inclusion of weasel words in the text: words that will allow scope for the USA, China and India - and New Zealand - all to argue for a new regime which falls short of imposing binding legal obligations on key parties to reduce emissions.  And argue for it they will.

International climate negotiations such as those which recently took place in Durban tend to go down to the wire. Parties hold back their ultimate bottom lines until the last minute. These negotiations took that approach to the extreme. Some key documents containing the proposed final text of the decisions were not circulated parties until the last scheduled day of the conference. Marathon sessions from Friday evening bled into the early hours of Saturday morning, and then virtually through the night without succeeding in breaking deadlocks on critical issues.

It took a last-minute proposal by South African conference President Maite Nkoana-Mashabone for an in-session (and very public) “huddle” involving a number of the core parties to unlock an uneasy compromise.

How much of the final outcome was driven by sheer exhaustion is a fair question. Video footage of the last couple of hours of the session shows many of the negotiators struggling to keep their eyes open.

The complete set of decisions adopted by the parties to the Framework convention and Kyoto protocol include technical arrangements or ‘modalities’ on various aspects of the international climate law regime, addressing matters as such the operational arrangements for an international fund intended to provide financing for developing countries for climate mitigation and adaptation projects, and the establishment of an ‘Adaptation Committee’ (a UN body to coordinate activities, largely in poorer countries, to prepare for the escalating impacts of climate change).

As noted in previous posts, the central and most controversial area for discussion concerned the future of the global climate mitigation regime.

One issue was whether the 1997 Kyoto Protocol should be retained for a second round. The protocol’s first commitment period expires on 31 December 2012. A pressing issue was whether those developed countries who have signed up to the Protocol already (including the EU, Australia and New Zealand) would be willing to accept a second commitment period.

The EU had said that it would be willing to accept a second commitment period with obligations which, on their face, imposed tougher requirements to reduce emissions than in CMP1. But it was only prepared to do so if it could be satisfied that the rest of the world (including the USA, China and India) was willing to bring itself under some sort of legally binding regime of emissions reductions commitments. This issue was at the heart of the matter being wrestled with in the early Sunday morning huddle.

What broke the deadlock (with words put up by the Brazilian delegation) was the following text:

[The parties also decide] to launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the United Nations Framework Convention on Climate Change applicable to all Parties, through a subsidiary body under the Convention hereby established and to be known as the Ad Hoc Working Group on the Durban Platform for Enhanced Action.

The words in red were the ones added at 3am on Sunday morning.  Apparently, there were conflicting legal views on the implications of the words. For my ZAR, there was already scope for arguments about the fluid nature of any hypothetical future emissions reductions commitments with the words “another legal instrument”.  (Such an instrument could be a beefed up version of the Cancun Agreements, involving voluntary commitments but with mandatory reporting obligations.  A country gets egg on its face if it doesn’t comply but otherwise doesn’t breach international law, as long as it accurately reports its non-compliance.)  “An agreed outcome with legal force” continues the theme, but with feeling.

Mark Lynas, climate change adviser to the President of the Maldives and Visiting Research Associate at Oxford University’s School of Geography and the Environment had this to say about the phrase:

The importance of this to the future of the UNFCCC cannot be overstated. This paragraph heralds the end of the Kyoto system of emissions targets only for industrialised-country parties and looks forward to the dismantling of the Annex 1/non-Annex 1 ‘firewall’ system through a new legal regime “applicable to all parties”.

Well, ok… it almost certainly does herald the end of the Kyoto system.  But whether it sets the stage for a better regime is moot.

So where does New Zealand sit in all of this?

As foreshadowed in my previous post, the COP decision recording agreed outcomes concerning the Kyoto Protocol includes a table which collects together Kyoto countries’ commitments (in UNFCCC jargon, Quantified Emission Limitation or Reduction Obligations or QELROs) in a second round.  The line relating to New Zealand is blank, with a footnote as follows:

New Zealand is prepared to consider submitting information on its QELRO… following the necessary domestic processes and taking into account decision 1/CP.17 and decisions on mitigation…of the Conference of the Parties.

Not exactly unequivocal stuff.

On the matter of the Protocol, Ministers Groser and Smith commented on the Durban results this week using very guarded language:

We, and no doubt Australia, will each need to make a decision in coming months whether to join Europe in inscribing our next set of international commitments within the framework of the Kyoto Protocol or to join all the developing countries, the United States, Canada, Japan, Russia and others, in making those commitments under the alternative transitional arrangements described in different texts.

Like all countries, we will need to take account of our national circumstances and compare our efforts to the efforts of others. We want to do our fair share, but it will not be clear for some time what exactly others will be committing to.

One reason why New Zealand might sign up to a second commitment period under Kyoto is because it is one of the few countries with an established emissions trading scheme which has linkages to the present Kyoto architecture.

Another is because the science tells us that the planet is at very serious risk of facing global temperature increases that will be utterly devastating to countries which include some of our closest Pacific neighbours – neighbours that New Zealand professes concern to support and assist.  Arguably, promises without the force of law are insufficient to deal with these sorts of environmental risks.  (We don’t accept promises when consenting a house renovation in Epsom’s Res 1 zone where the risks are an out-of character window frame in a pretty street.  So the logic for accepting voluntary commitments where the existence of entire nations is at risk is deeply questionable.)

But science didn’t seem to play much of a role in these negotiations.

Groser and Smith’s statement raises the distinct possibility of New Zealand moving away from its previous positioning alongside the EU, towards that of the USA and Canada (which not unexpectedly, but still controversially, announced this week that it intends to withdraw from Kyoto completely).  

Last week in Durban I asked Minister Groser if it was a fair observation that New Zealand no longer regards itself as a leader on international climate policy.  He mentioned that we have the first global all-sectors-all-gases emissions trading scheme.  (Accepted – this is, in theory at least, leading edge policy, although he'd be on stronger ground if the Government hadn't signalled the intention to keep agriculture out of the scheme for an indefinite period).  And the New Zealand-led Global Research Alliance on Agricultural Emissions.  (Again, accepted – this is an important initiative, and one that many hope will produce some technological break-throughs on the difficult area of agricultural emissions.)  And the role of New Zealanders such as Adrian Macy in chairing key UNFCCC committees.  To that he could have added his own role in Cancun and Durban.

However, to duck out at this stage on Kyoto II would, as I see it, signal a major shift in direction for years of climate change diplomacy for New Zealand.  It is all very well to say that a Kyoto Protocol covering only 15% of global emissions is completely indequate to tackle the challenges of climate change.  But if it transpires that New Zealand now supports an alternative regime which, on the crucial issue of emissions reductions – particularly for developed states - lacks any real teeth, then to me, that would represent a clear relinquishing of leadership by New Zealand on international climate change policy.

There’s a bit of water to go under the bridge yet.  Perhaps a regime can be developed which contains enough sticks and carrots to get all of the main players to do the necessary to avoid an over 2˚temperature rise. New Zealand would be in the best position, I reckon, to advocate for that kind of regime if it is already part of a robust regime (Kyoto II).  

Having seen what Groser and Smith have had to say this week, I am not holding my breath…

By Vernon Rive on 15/12/2011 10:53:12 p.m. | Comments (3) | Print

Topic / Climate Change

COP 17 (Groundhog) day 10

Vernon Rive . 10/12/2011 11:56:45 p.m.

The sun’s risen on another muggy day in Durban to the news that the COP17 talks are being extended for another day. 

It’s all feeling a bit Groundhoggish. Bleary-eyed delegates and journalists are wandering around: some in a daze, others staring and pecking away at laptops.  Groups of young observers are cross-legged in circles in the corridors, chatting.  The conference centre screens that during the last 2 weeks have been crammed with rolling announcements of press conferences, meetings, side events and notices of new documents are largely blank and static.   

Overnight some
new texts were released and are under discussion, but nothing has been agreed yet.

With many of the party delegates booked to fly out today, and so many of the contentious issues still seemingly up in the air, its hard to see that on the critical matters, much is going to be able to be resolved before the meeting finishes, other than perhaps some sort of high level declaration or commitment to keep talking.  That would be a very poor result.  It would not be good at all for the reputation of the UNFCCC process.

Cindy Baxter over on Hot Topic is doing
some good analysis from a New Zealand perspective.  

The country has come in for a bit of stick from the NGOs.  Last night New Zealand
earned a “first place fossil” in the Climate Action Network awards for

“…severely mixed messages about its Kyoto Protocol 2nd Commitment Period stance. This time, it made it clear, describing Kyoto as 'actually an insult to New Zealand'. The only insult is to the citizens of New Zealand and the rest of the world, who will have to suffer the costs of climate change.”

To be fair to Minister Groser, his real reservation on the KP 2nd period (as I understood it) was that it shouldn’t be regarded as the be-all-and-end-all.  A major task here in Durban has been to try and lock in commitments from other major emitters, especially the USA and China. Groser’s choice of words – “an insult to New Zealand” predictably raised the ire of the NGOs.  Somehow I don’t think he’s going to lose any sleep over the Fossil award.

On the issue of locking in commitments from a wider pool of nations, the
current draft text has countries (developed and developing) agreeing to “launch a process to develop a Protocol or another legal instrument applicable to all Parties”.  The exact meaning of ‘a Protocol or another legal instrument’ remains murky, and deliberately so.  The USA has a pathological dislike for the phrase ‘legally binding’. So this is a compromise to try and broker a deal. But is not clear if the USA, China and India will agree to even this watered down obligation.

As for a 2nd commitment period on the Kyoto Protocol for New Zealand, at this stage, that is also murky.  The
current draft text contains proposed amendments to the KP’s Annex 1 (which contains Quantified Emission Limitation or Reduction Obligations or QELROs). New Zealand’s row on the table is blank, with a footnote as follows:

New Zealand is prepared to consider submitting information on its QELRO, pursuant to decision 1/CMP.7, paragraph 3, following the necessary domestic processes and taking into account decision 1/CP.17 and decisions on mitigation [XX/CP.17] of the Conference of the Parties.

So, at this stage, the draft text reflects a New Zealand’s commitment to do no more than consider submitting figures some time down the track, after more analysis, perhaps some consultation, and a hard think about how the entire package looks.

At this late stage it is probably unrealistic to expect that much more will come from New Zealand.  But it falls well short of a stepping up to the mark hoped for by many here in Durban.

It has been reasonably challenging trying to track New Zealand’s precise position on a range of issues this week. Maybe that is to be expected in a negotiation where positions on individual components (such as the KP 2nd commitment period) depend on outcomes on other matters (other nations’ commitments, rules on matters such as the carryover of Kyoto units from 1st to 2nd commitment periods , LULCF rules etc).  But overall New Zealand has kept its cards very close.  

Minister Groser delivered the customary brief Heads of Government statement on Wednesday, but there’s been not one official press conference in 2 weeks where international media could quiz New Zealand’s ambassador on the country’s position. (The Minister did agree to an around 10 minute interview with me on Tuesday which was appreciated.)  Jo Tyndall sat in on Tokelau’s press conference on Thursday, but
according to Cindy from Hot Topic, didn't throw too much light on New Zealand's position:

“Jo Tyndall, head of the NZ delegation, sat on the podium with [the Ulu of Tokelau], and wouldn’t commit to helping them out in finding the finance for the $900,000 they need to finish the project. Things are looking better for an outcome on the Green Climate Fund here in Durban, so maybe that would make a difference, But when the BBC asked her to clarify her position on Kyoto, she refused to answer. We know that New Zealand has joined Australia in pushing back against Kyoto. She looked very uncomfortable, and so she should.”
A UN press conference is apparently scheduled in an hour or so, but things are very fluid today.  I will do an update after that and a wrap up post in the next couple of days when we know what the final result is.

By Vernon Rive on 10/12/2011 11:56:45 p.m. | Comments (1) | Print

Hearting Kyoto in Durban

Vernon Rive . 8/12/2011 12:00:00 a.m.

Youth delegations from around the globe have converged on Durban in the last couple of weeks to add their bodies, voices and laptops to the crowded NGO space looking to influence the outcome of the climate talks.

Earlier in the week, I spoke with Emma Moon and David Tong from the
New Zealand Youth Delegation – a group of 10 students of law, environmental science, international relations, music, development studies and politics.  Some of that chat is in the video below.

Like other youth delegations here at COP17, the New Zealand group has thrown itself into a range of activities – meeting with their South African counterparts and other members of the ‘YOUNGO’ community, delivering an ‘intervention’ at a working group on the Kyoto Protocol, attending side events, and catching up with the New Zealand Government delegation on a fairly regular basis.

And, of course, promoting the “I heart Kyoto” message as much as they can.

On Tuesday, the NZ group issued a fairly bold press release.  It began thus:

"The New Zealand Government is jeopardising its good name in international negotiations at this fortnight's United Nations Climate Change Conference in Durban. It has been identified as one of a small number of States stalling progress in forming an international climate agreement. Other parties have privately condemned its conduct and predict it could risk the possibility of a credible outcome."

..and  continues for 2 pages in a similar vein.

I asked New Zealand’s Climate Change Negotiations Minister Tim Groser for his thoughts on the statement.  The Minister is not especially known for pulling his punches on this kind of thing.  He didn’t disappoint.

“I didn’t come here to negotiate with 10 young New Zealanders.  What they’ve unfortunately bought without realizing it is the whole drum beat on KP, KP, KP, as if somehow they don’t understand that a deal that locks in only 15% of emissions is actually an insult to New Zealand.”

Groser’s point on the complete inadequacy of a Kyoto Part II which covers only 15% of emissions is undoubtedly on the money.  And the simple messaging around a second Kyoto commitment period being adopted by the Youth Delegation as well as many NGOs here in Durban is an easy target for criticism.  

His comments do a slight disservice to the youth movement however.  They understand that Kyoto II without China, the States and India is not enough.  Perhaps their messaging could be a little more sophisticated.  But their point, as far as I can tell, is that the instrument that is currently the only legally binding agreement on emissions reductions is very much worth retaining for another round, on the way to the bigger goal of a comprehensive agreement involving all of the main players.

That is actually not too far from New Zealand’s position here in Durban.  But I'm not expecting to see the Minister in an ‘I heart Kyoto’ T-shirt any time soon.

By Vernon Rive on 8/12/2011 12:00:00 a.m. | Comments (1) | Print

Topic / Climate Change

New Zealand after ‘Kyoto Plus’ as things get serious in Durban

Vernon Rive . 7/12/2011 12:00:00 a.m.

Delegates to the 17th conference of the parties to the UN Framework Convention on Climate Change in Durban are now into the second half of the second week of talks, and it is officially Business Time.

Ministers formally joined the proceedings on Tuesday. They've been lining up to present (largely symbolic and formulaic) 'Statements from Heads of Government' to the plenary for the last couple of days.

But the gritty wheeling and dealing is almost entirely taking place behind closed doors – in group and bilateral discussions between country representatives, 'indaba' (a Zulu tradition introduced by the South African presidency – essentially, an elders meeting where important or contentious issues are discussed), and chats in makeshift war-rooms set up in the underground conference centre carpark.

The first week of officials-driven meetings ended with pessimism in some quarters over prospects of a second commitment period for the legally binding Kyoto Protocol, whose first legally binding emissions reductions phase (CMP1) expires on December 31, 2012.

In the second week, winds seem to have shifted. Kyoto turncoats Canada, Japan and Russia remain staunch in their no-commitment-to-CMP2 stance. But there is a growing sense that the EU, under intense pressure from developing countries – especially (and not surprisingly, given the continent that we're on) the African block – really does not want Kyoto to 'die in Durban'.

Negotiators (including the New Zealand delegation now being led by climate change negotiations minister, Tim Groser) continue to hold their cards close to their chests. Following the typical course for UN climate change negotiations, it is likely to go down to the wire.

Yesterday, Groser told Idealog: "New Zealand can do a second commitment period under the Kyoto Protocol, but we're not going to be committed to that position until we can see how the other factors play out."

The "other factors" include, critically for Groser, commitments to emissions reductions by countries responsible for the 85 percent of emissions not covered by the Kyoto Protocol.

"We now know that a second commitment period that covers only 15 percent of a poor joke, actually."

Groser sees a potential deal involving a 'landing zone' that he describes as 'Kyoto Plus'. For the period 2013 - 2020, this would include Kyoto commitments from those countries willing to sign up for CMP2 (say, the EU, and other Kyoto-friendly countries such as Australia and New Zealand) "plus the mitigation commitments that China, the United States and other countries who stand outside Kyoto said they would do in Cancun, clarified and operationalised."

"In addition to that, what we need is ... a roadmap, or a process, to negotiate a more coherent long-term deal which ends this mosaic of different bits into a single comprehensive treaty."

And if a deal is not concluded in Durban, what might this mean for New Zealand?

"I hope we take a step forward here. If we don't, we'll just have to carry on. But what we will not do is abandon the ETS, abandon the drive for more renewables, abandon the search for energy efficiency, partly because these things have got other environmental co-benefits in them."

In the closing days of the last UNFCCC Conference in Cancun, Groser played a significant role at the request of the Mexican presidency, working through the night guiding parties to a landing on the contentious matter of measuring and verifying countries' emissions reductions commitments. There may well be call for Groser's diplomatic prowess – and multiple cups of Tanzania's finest – in the final stretch of COP17. 

(This article first appeared on Idealog's website on 8 December 2011)

By Vernon Rive on 7/12/2011 12:00:00 a.m. | Comments (1) | Print

Kyoto Protocol on life support: will someone pull the plug already?

Vernon Rive . 3/12/2011 7:44:42 p.m.

There’s been a strange and slightly awkward atmosphere around the Albert Luthuli International Convention Centre in Durban this week.  Close relatives of the Kyoto Protocol have gathered around its deathbed waiting for what seems like its inevitable passing.  Old feuds have erupted again.  Some are in denial.  Squabbles are breaking out over arrangements for disposition of the estate and care of the dependents.  Shadows are deepening around eyes,  and the priests are preparing to administer last rites.  The kind thing, surely, would be to put it out of its misery.

An interchange yesterday at the Japanese delegation’s daily press briefing between a Spanish journalist and Masahiko Horie, Japan’s ambassador for global environmental affairs was revealing of the terminal nature of the Protocol’s malaise.  Japan announced last year, and has confirmed again in Durban, that it won’t agree to a second commitment period under the Kyoto Protocol.  Canada is taking a similar line.  NGO’s and developing countries are incensed.

The English on both sides wasn’t perfect, but the meaning was plain.
Paraphrased, it went something like this:

Q: I’m just can Japan be asking other countries to be taking on further binding commitments to reduce emissions when it won’t first continue to commit to binding commitments itself?

A: The Protocol only binds countries responsible for 26% of global emissions. We think it’s important that all major countries join. China is the largest emitter of GHGs and the USA is the second largest. So this is why we are appealing for all to join.

Q: But if you are asking them to do what you used to do, why are you stopping doing what you were doing? You’ve been doing it very well, for a very long time.  But instead of saying “do what I am doing”, you are saying “I’m going to stop doing what I’m doing in order to force you to do it.”

A: We’re proposing a single comprehensive international framework. It has to be something that all the major economies and as many countries as possible join.  Under that kind of agreement the total emissions reductions will be large enough to achieve the goal.

The USA’s position is that it is not part of the Kyoto Protocol, so will just stay clear of that process thanks. But in any event, the system of voluntary pledges initiated in Copenhagen in 2009 and confirmed in Cancun in 2010 will be fine, for the time being at least. As for a future agreement after 2020, “the only way it could be effective and garner broad support is if it fully applies to all significant countries”.

China and the other ‘BASIC’ group countries (Brazil, South Africa, India) continue to press for the distinction in international climate rules between developed countries and developing countries. They say the rich have an obligation to accept binding reductions and help developing countries to improve living standards – something that would happen if Kyoto was ratified (by the USA) and extended (by the rest of the rich Kyoto parties).

As Brett and Jermaine say, it’s a chicken and eggy one.

It’s not completely doom and gloom.  Officials seem to have made good progress on technical arrangements for catalyzing technology transfers, access to finance for climate mitigation and adaptation projects for developing countries.  This stuff will be important for pre-, during and post-illness care.  But the global community appears stumped on how to stop getting sick in the first place.

This week the negotiations have been mainly driven by diplomats and officials.  The Ministers
, including New Zealand’s Tim Groser and Nick Smith, are on their way for the final week.

A miracle recovery can't be ruled out.  But I'd be surprised if there weren't a few black suits in the checked-in luggage.

By Vernon Rive on 3/12/2011 7:44:42 p.m. | Comments (1) | Print

Topic / Climate Change

COP 17 - Opening shots

Vernon Rive . 3/12/2011 7:15:53 a.m.

Reeling a little with jetlag, 3 press conferences, catch up with the New Zealand Youth Delegation and New Zealand Government delegation and 3 more press conferences.  All up, experiencing a severe overdose of information, propaganda, doublespeak, security checks, unabashed youthful idealism (not mine), world weary cynicism (not mine, but give it a couple of days) and more climate change acronyms than I thought could in all seriousness be included in one speech.  But I had a great curry.  Here are some shots from my first day at COP 17.  Working on some words which I'll look to post tomorrow.

By Vernon Rive on 3/12/2011 7:15:53 a.m. | Comments (1) | Print

Heading towards a South African stand-off?

Vernon Rive . 14/11/2011 5:43:23 p.m.

Two years ago, media interest was building towards something of a frenzy in the lead up to the most significant international environmental gathering for many years: the 2009 Copenhagen Climate Change Conference.  World leaders - not used to being dragged along to single-issue international conferences - were persuaded to travel to Denmark’s capital to share in the final negotiations and bask in the reflected glory of a new, groundbreaking, global climate change treaty.  But ‘Hopenhagen’ collapsed under the weight of unrealistic expectations, leaving many disillusioned and cynical about the ability of the United Nations solve to what many have regarded as the defining environmental challenge of the 21st century.

In just a couple of weeks, politicians, officials and civil society leaders will meet again in Durban, South Africa, in an attempt to progress matters. The stakes are no less high than existed in Copenhagen in 2009. Global emissions continue to rise.  In 2011 however, they are fuelled not so much by rampant growth in Western economies but rather by the steady rise of countries such as China and India. But, unlike the unrestrained optimism and hype preceding Copenhagen, expectations ahead of the Durban conference are low.

The past is a foreign country

A central question hanging over the entire process concerns the future of the Kyoto Protocol. 

The Kyoto Protocol was negotiated in 1997. It was a time when the US economy was robust, and a united Europe was determined to take a strong lead in implementing innovative measures to reduce emissions. China and India had not then really flexed their muscles economically, and were still seen as ‘developing’ nations for whom binding emissions reductions obligations were not appropriate. An agreement was reached which required developed countries (including New Zealand) to achieve fixed emissions limits, but committed developing countries to little more than “best endeavours” steps to reduce emissions. 

In the event, the US baulked at implementing the Protocol – not willing to accept limitations which did not also apply to its competitors such as China.  Australia dragged its coal dust-caked boots until 2007. But with ratification by Russia in 2005, an international regime was set up which provided a global legal framework for domestic policies such as the EU and New Zealand emissions trading schemes and the contentious carbon tax scheme approved in early November this year by the Australian Senate.

Fast forward 14 years from Kyoto, and the world is a different place, economically and geopolitically.  China has taken number one spot as the world’s largest carbon emitter. Its rate of economic growth well outstrips that of most Western economies, including the US. India sits in third place in the emissions rankings, also enjoying strong growth. The EU operates the world’s largest and most established emissions trading scheme and is still committed to a global regime which includes comprehensive binding limits. But the EU’s current economic woes, not to mention searing international political and legal pressure concerning its plan to bring international aviation into its ETS, mean that it faces bigger challenges now than it did in 1997.  

The increasingly influential BASIC grouping (Brazil, South Africa, India and China) are positioning themselves to (a) hold developed nations’ feet to the fire on emissions reductions and financial support for developing countries on climate change issues; and (b) avoid becoming stung by growth-limiting emissions restrictions themselves. Many would say that their position is completely reasonable: their standards of living are still low compared to western economies with long histories of resource exploitation and associated unrestrained emissions. They should be given a chance to catch up.  But conditions are ripe for a South African stand-off.

New Zealand’s ETS

Closer to home, New Zealand politicians are pondering the future of this country’s climate change policy. Earlier this year our fledgling emissions trading scheme was put under the microscope by a government-appointed review group.  Amongst its recommendations was the indefinite deferral of the agricultural sector to enter the ETS. The rationale is something like this: no one has yet figured out how to reduce emissions from the farming of cows and sheep, and the sector is so important to the national economy.  So, it makes no real sense to bring it into the scheme. There are compelling arguments to the contrary. But it is reasonable to assume that if the present government is re-elected, farmers will be breathing easy for quite some time to come.  A Durban outcome which pushes the timeframe for a new international binding treaty out to the last quarter of this decade will not help the cause of those arguing for faster, deeper and wider emissions cuts domestically.

Stepping back for a minute from the political and legal wrangling, what are the scientists telling us?  In 2007 the Intergovernmental Panel on Climate Change said that to keep global temperature to between 2°C and 2.4°C above the pre-industrial average and secure a reasonable hope avoiding significant climatic and environmental damage, emissions would need to peak before 2015 and sharply dive after that. Judging from their behaviour, not many world leaders seem to believe that advice. Our own included.  

By Vernon Rive on 14/11/2011 5:43:23 p.m. | Comments (1) | Print

Topic / Climate Change

Oxfam Climate Change Debate

Vernon Rive . 2/11/2011 10:33:44 p.m.

My boy Caspian (8) and I navigated our way through post-rush hour traffic on the failing Vespa this evening to the Auckland Uni Business School for Oxfam’s 2011 Election Climate Change Debate. Oxfam’s always insightful (and, for my money, one of the more consistently impressive New Zealand NGO commentators on climate change issues) Barry Coates chaired the debate.  

Nick Smith flew the flag for the Nats; David Parker for Labour, and Kennedy Graham for the Greens. Around a 100 were there: numbers, a bit disappointing – apparently a few more were at the Wellington event.  

Caspian liked the ‘clickers’ – TV-remote looking devices which allowed the overwhelmingly Green-backing audience to rate the speakers at various points in the proceedings.  He confessed at the end that he had struggled to follow most of the talkfest, but he clapped enthusiastically after each round and kept himself occupied trying to skew the stats by voting 10 times whatever I had picked. (Owen Glenn's clicker-designers were onto that.) 

Playing to a home crowd, I thought Graham lacked a bit of spark, with a couple of exceptions later in the piece.  He’d obviously prepared well, but the scripted answers – at one point, an entire answer was him reading from Green’s campaign brochure – were a bit stiff and stilted. He was at his best when he departed from his notes.  Graham's almost (but not quite) fiery response to Smith’s description of the Greens as a 1-issue party gave him a chance to display some passion.  But he’s got a way to go to fill Jeanette Fitzsimon’s sandals as Green Climate Change spokesperson.

Smith came across as the battle-hardened campaigner that he is. Tonight’s debate would have been a leisurely stroll compared to some of the provincial town hall meetings he’s faced over the years.  It was nice seeing him give some credit to Parker and Labour for the groundwork laid on CC policy. But the repeated Nats mantra: ‘we’re striking a balanced approach between the environment and the economy' wore thin with the audience and your correspondent.  I’m with Graham on this one. It’s not quite a question of balancing 2 competing factors.  The environment: local and global: is integral to the economy. Our economy more than most. And as Parker chipped in, the rhetoric of ‘balance’ can mask a multitude of sins.

A bit unexpectedly for me, Parker was the standout speaker.  Caspian agreed.  Although by 8:00pm, he was quite keen to get home and finish Amazon Adventure.  Maybe Parker had the easier task as the commentator from the sidelines.  But I thought his analysis of the folly of an indefinite deferral of agriculture into the ETS was on the button.  And his exposure of the long-term disastrous consequences of dabbling in the lignite-to-liquid energy habit left Smith and the Nats looking like they were on liquefactious ground, and I thought, slightly guilty. 

The final clicker-vote had the Green’s still well ahead, Smith’s 5 votes dwindled to 2 and Parker up around 10 clicks to 15. 

Next stop, Durban.       

By Vernon Rive on 2/11/2011 10:33:44 p.m. | Comments (1) | Print

Summer viewing

Vernon Rive . 5/01/2011 12:43:52 p.m.

Part v-log, part 70’s educational cine-movie, part Sigur Ros video, part Planet Earth on a handycam. Al Gore & masseuse nowhere in sight, but David Attenborough is there looking charmingly shabby. If you watch only 1 online climate change doco made on a tight budget by an 18 yr old UK film maker called Ross this week, make it this one: Beyond the Brink.

By Vernon Rive on 5/01/2011 12:43:52 p.m. | Comments (0) | Print

Topic / Climate Change

Climate skeptics v scientists in court: the NZTR files

Vernon Rive . 17/08/2010 10:27:23 p.m.

With impeccable, or possibly ironic, timing, within a day or so of "a newly registered arm of the New Zealand’s Climate Science Coalition" lodging judicial review proceedings in the Auckland High Court against NIWA “to invalidate the New Zealand official temperature record (NZTR)”:
- the Australian Academy of Science has released a comprehensive report The Science of Climate Change containing an unequivocal finding that “the global average surface temperature has increased over the last century and many other associated changes have been observed. The available evidence implies that greenhouse gas emissions from human activities are the main cause.”
- The New Zealand High Court has issued a decision – significant on a number of other levels – containing a “side-bar” dismissal of an appeal which sought to challenge the Environment Court’s assumptions on climate change. The High Court agreed with the Environment Court’s finding that in an RMA appeal (this was a large windfarm application), it is not the Court’s role to revisit the assumption that climate change is occurring, nor should it enter into a discussion of its causes, directions and magnitude (paras 150-165).

CSC’s move to challenge NIWA’s historic temperature record has been commented on extensively in a number of blog posts and media articles in the last few days. Gareth Renowden at Hot Topic has undertaken a thorough critical assessment of CSC’s position. His commentary on it is well worth a read. The competing claims regarding the scientific validity of NIWA’s data are best assessed by climate science journalists and academic and practising scientists. But I have some initial  thoughts on the legal strategy being employed by CSC.

Judicial review is legal remedy with a long and proud track record in New Zealand. Judicial review proceedings have been employed to resolve (or attempt to resolve) disputes on topics as varied as a proposed 1985 NZRFU rugby tour of South Africa (they stopped it) , the decision to proceed with the Aramoana Aluminium Smelter (didn’t stop it), the divestment of Crown assets to newly formed State Owned Enterprises (stopped it in 1987, not so much after that), and the awarding to a newcomer of a major contract for Auckland medical testing services (halted in the High Court, went ahead after a Court of Appeal reversal).

But is JR an appropriate mechanism for resolving competing scientific claims in the climate change arena?

In 2007, UK plaintiffs backed by Viscount Monckton – also recently in the news – famously judicially reviewed the UK Secretary of State for Education and Skills’s decision to use Al Gore’s An Inconvenient Truth as an educational aid in schools. Lawyers for the father of children at one of the schools complained about a number of alleged errors in the film, and the need for a balanced presentation on what was regarded as essentially a political (as opposed to scientific) issue. The decision was widely reported for its finding that there were nine “errors” in the film: one of which involved New Zealand. However, the court broadly upheld the validity of the scientific research on which the film is based.

Closer to home, to date, there have been a number of occasions where New Zealand courts have been asked to rule on competing scientific positions concerning climate change.

In 1995 – it seems like ancient history now – a Board of Inquiry into the Stratford Power Station considered an argument that because, in global terms, the CO2 discharges would be “negligible” that issue should be put to one side when considering consenting under the RMA. The Board rejected the argument swiftly. It held “… even though the emission from the proposed power station is small by world standards, nevertheless the harm, or potential for harm, throughout the world is very large. A small proportion of a very large amount may itself be large.

That theme was picked up in a number of subsequent decisions, including (in 2002) Environmental Defence Society v Taranaki Regional Council and Environmental Defence Society v Auckland Regional Council, (in 2005) Genesis Power Ltd v Franklin District Council.

Amendments to the RMA in 2005 reduced the scope of legitimate climate change considerations for the Environment Court to (in simplistic terms) the positive effects on climate change of renewable energy projects. Notable decisions in which the legitimacy of climate change impacts was accepted by the Environment Court included (with no attempt to be exhaustive), (in 2007) Meridian Energy Ltd v Wellington City Council, (in 2008) Outstanding Landscape Protection Society Inc v Hastings District Council, Motorimu Wind Farm Ltd v Palmerston North Council, Upland Landscape Protection Society Inc v Clutha District Council, (in 2009) Unison Networks Ltd v Hastings District Council, Maniototo Environmental Society Inc v Central Otago District Council.

The examples above all concerned contested resource management approvals for particular projects.  In those cases it was open to the Environment Court to undertake a merits assessment of the proposals, and rule on competing evidence regarding benefits and dis-benefits advanced by the parties before it.

But judges in judicial review proceedings tend to shy away from “merits assessments”, focusing instead on procedure and compliance with statutory frameworks.  So, it’s unlikely the HC will be as open as the EC on the issues.

A core element of the intended CSC proceeding is an allegation that, in relation to a number of decisions or actions relating to its assessment and publication of the NZTR, NIWA has acted “unreasonably”.

Judicial review proceedings based on alleged unreasonableness are notoriously difficult to succeed on in New Zealand.  In recent years, the courts have adopted a “sliding scale of review”, where the degree or “intensity” with which the court examines contested factual or legal claims increases or decreases depending on a range of factors such as the nature and policy content of the decision, the identity of the decision maker.  In relation to research or publication decisions on issues which involve the application of fine-grained scientific methodologies, it’s hard to imagine the High Court taking anything other than a circumspect approach.

In short, I think the likelihood of the High Court embarking on a comparative review of competing positions on methodologies for adjusting historic temperature records is remote.

CSC is also alleging illegality on the part of NIWA. From the summary of claim, it looks as if CSC will rely on provisions of the Crown Research Institute Act 1992, and in particular on section 5. Section 5 specifies a number of “principles of operation” for CRI’s, including the obligations to “pursue excellence in all its activities” and “comply with any applicable ethical standards”.

Experienced lawyers never say “never” in the dark art of litigation. However, the scenario of CSC demonstrating to the satisfaction of the court that NIWA knowingly delegated tasks to personnel who themselves wilfully manipulated climate data sets seems far-fetched at best.  So too, I reckon, are the prospects of CSC establishing that NIWA knowingly and wilfully published information which it knew to be inaccurate or unreliable.

It is difficult to avoid the impression shared by a number of respected and independent commentators that the whole exercise is an ill-thought through attempt to gain publicity for a cause whose time has well and truly passed.  Or worse, a cynical ploy to distract overworked scientists whose time would better be spent on more productive tasks than rebutting tired, and probably irrelevant, claims through the court process.

NIWA’s statement of defence is due within 30 days of service.  It will be interesting to see how tactical moves on the part of NIWA, and possible applications for intervention by interested parties such as the Environmental Defence Society, pan out.

By Vernon Rive on 17/08/2010 10:27:23 p.m. | Comments (2) | Print

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Wind Farms

Official Information Act


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Resource Management Act

Climate Change



I’m an Auckland based writer, researcher, lawyer and lecturer specialising in environmental, resource management and public law.  My particular interest is in the international law framework influencing domestic law and policy on climate change and biodiversity protection.  I'm the author of chapters on the International Framework, New Zealand Climate Change Regulation and Adaptation to Climate Change in the 2011 Lexis Nexis-published book Climate Change Law and Policy in New Zealand and the general editor of the Resource Management Bulletin.  I also lecture in Public, Resource Management Law and International Environmental Law at AUT Law School.