The opinion pieces from Melissa Scanlan and Sean Hecht [published in RMB Volume 12 Issue 2] provide timely updates on the Juliana litigation in the USA regarding climate change and current and future generations, and the emerging environmental policy direction of the Trump administration. The litigants in Juliana contend that the Federal government should put in place regulations to reduce GHG emissions based on their constitutional rights to due process, and their public trust rights in the oceans and the need to avoid adverse effect from acidification and sea level rise. While climate change litigation appears to be non-justiciable in New Zealand following the Buller Coal decision from the Supreme Court, it is relevant to note that climate change litigation is a contentious and highly topical subject in Australia with the upcoming National Environmental Law Association conference in August being set to consider papers from leading practitioners on corporate liability for GHG emissions under companies and securities legislation. Beyond that, art 105 on environmental rights in the draft written constitution for New Zealand proposed by Sir Geoffrey Palmer and Dr Andrew Butler also raises the spectre of possible climate change litigation in the future.
Similarly, the opinion piece from Sean Hecht provides an insightful analysis of the future direction and role of the US Environmental Protection Authority under the Trump administration. This brings into play the “non-regression” principle articulated by Michel Prieur, which contends that states are precluded by international environmental law from repealing their environmental policies and regulations without enacting replacement legislation to safeguard the environment.[1]
Closer to home the ramifications of the New Zealand Supreme Court decision in King Salmon are working their way through the courts, and Warren Bangma [also published in RMB Volume 12 Issue 2] provides a careful analysis and commentary on the recent Davidson Family Trust decision from the High Court applying King Salmon in the context of resource consent applications. It is understood that this appeal may now progress to the Court of Appeal.
Meanwhile the RMA reform process continues with the Select Committee report being released on 6 March amid continuing disquiet being expressed by the Environmental Defence Society and other commentators regarding the “Ministerial override” powers that remain in clauses 58B to 58I of the Resource Legislation Amendment Bill regarding the proposed national planning standards and the ability to direct changes to statutory planning instruments promulgated by local authorities under the RMA.[2] Previously, David Grinlinton drew attention to the use of “Henry VIII” clauses and the advice of the Regulations Review Committee that they should only be used sparingly in exceptional circumstances where appropriate safeguards are in place.[3] Similarly, in dealing with the prospect of needing to amend swathes of directly effective EU regulations in the UK following Brexit, the House of Lords Constitution Committee’s report on The Great Repeal Bill argues that substantial amendments should only be made to regulations “via primary legislation”.[4] The RMA reform debate is however far from over with the recent OECD Environmental Performance Review of New Zealand and the Productivity Commission’s report on urban planning providing the catalyst for the Environmental Defence Society to reiterate its view that the RMA is not producing “good environmental outcomes” and call for a national debate under the auspices of a Royal Commission regarding the need for second generation legislation to replace the RMA.[5]
Dr Trevor Daya-Winterbottom
Faculty of Law
University of Waikato
Dr Trevor Daya-Winterbottom is General Editor of Resource Management Bulletin published by LexisNexis in which this blog was first published
[1] Michel Prieur, Le principe de non regression et la mise en oeuvre du droit de l’environment (IUCN/OIF 2013).
[2] EDS Media Release, 9 March 2017.
[3] Legal Research Foundation Seminar, 9 August 2016.
[4] Mark Elliott, Public Law for Everyone, 8 March 2017.
[5] EDS Media Release, 29 March 2017.