By Katharine Moody*
Not good enough, Simon Court. In a recent article, the Undersecretary for Resource Management Act (RMA) reform warned Councils that picking extreme climate scenarios in the conduct of regulatory decision-making “risks lawsuits by requiring developers to design and build to overly stringent climate warming models”.
By pulling out a yellow card, Simon Court assumes it will prevent further ‘screwing the scrum’ by over-zealous local experts and those local authorities who follow their guidance. In my experience as a consultant planner, it won’t be enough.
For years, I have observed a small group of local experts pushing the worst-case emission scenario, Representative Concentration Pathway (RCP) 8.5 from the Intergovernmental Panel on Climate Change (IPCC), on businesses and home owners across New Zealand.
And yes, councils have already been taken to court on this matter; and yes, the use of these extreme scenarios have already been found to lack scientific rigour on merit review.
For example, in the case of the Kāpiti Coast District Council, the High Court (Weir v Kapiti Coast District Council [2013] NZHC 3522) found there was “a good argument” for describing the result of the coastal assessment as the “very worst case scenario”.
Following that interim judgment, an independent merit review of that scientific assessment by a panel of international and local coastal experts found the science was unfit for the purpose of coastal hazard planning under the RMA.
The Council subsequently withdrew the associated coastal hazard lines from 1800 property’s Land Information Memoradum (LIM reports) in the district, along with withdrawing all of the proposed district planning provisions for the management of those erroneously defined coastal hazards.
Following that failed regulatory process (described by a former Principal Judge of the Environment Court as a ‘fiasco’), Dr Jan Wright, Parliamentary Commissioner for the Environment, investigated the Kāpiti case and the wider use of science in coastal hazard assessment, finding that,
“Because current government policy on sea level rise emphasises the need to take a ‘precautionary approach’, technical analysts have been embedding ‘precaution’ into coastal risk assessments to varying degrees. This takes various forms such as assuming ‘high end’ amounts of sea level rise...
“The standard results of running a coastal hazard model should instead be probability distributions with most likely values and ranges of potential values expressed with a level of confidence.”
Yet, her recommendations were largely ignored by the Ministry for the Environment (MFE) two years later in publishing its update to the Coastal hazards and climate change guidance for local government. This updated guidance recommended not only the use of the ‘high end’ RCP8.5 scenario, but additionally a ‘high end’ extreme of that extreme scenario, which they refer to as RCP8.5H+. The Ministry has further updated that guidance this year, still persisting with the recommended use of the ‘high end’ RCP8.5 scenario in coastal hazard planning.
RCP8.5 is the climate scenario that Professor Dave Frame, an IPCC lead author, describes in the article as “a scenario that nobody really believes in” ̶ except for, it seems, a small cohort of experts who appear to have secured undue influence on MFE.
To my mind, there is no remedy aside from expunging all reference to RCP8.5 from local government guidance and hence, from current planning practice. The cost to individuals, business entities and communities of ratepayers has been more than enormous already.
Returning to the Kāpiti Coast District Council example, this relatively small local authority with approximately 26,000 ratepayers and net debt of 224% of annual rates income, still has not implemented coastal hazard provisions in its district plan following the 2013 High Court ruling.
Instead, it has embarked on a new multimillion-dollar adaptation project which follows the MFE guidance manual. It is important to note that adaptation plans are not required by statute, whereas district plans are. The Council paid over $200,000 to a private sector firm to produce an equally (if not more) flawed scientific report to the one found unfit for the purpose of regulatory planning under the RMA years earlier.
Based on a recent Official Information Request, additional on-going services provided by that same firm to the project have further cost ratepayers in excess of $780,000. And they are by no means the only external expert advice contracted by the Council in the conduct of this non-statutory adaptation project. The project team and its technical advisors hold regular sessions behind closed doors and then come out ‘swinging’ at local ratepayers who try to challenge the science in public meetings.
As part of that project, the Council has posted a coastal hazard map tool (not yet subject to merit review under the RMA) which depicts the inland boundary of potential effects of climate change on erosion and inundation in the district extending more than 2 kilometres inland along most of the coast, impacting 2,000 properties with a possible value of a billion dollars.
These are wildly exaggerated projections because they rely upon the extreme RCP8.5 scenario, and as Professor Dave Frame points out “nobody believes in” these extreme scenarios.
The insurance industry is having a field day increasing risk premiums for homeowners.
It is time that Simon Court and other members of the government Executive put a stop to the misrepresentation of IPCC findings and the misapplication of New Zealand statute/law.
Our national statute, the RMA and its secondary legislation, the New Zealand Coastal Policy Statement (NZCPS) require that regulators assess “the likely effects of climate change on the region or district” (NZCPS, Policy 24), not the unlikely ones.
The IPCC’s most recent report, Climate Change 2021: The Physical Science Basis finds RCP8.5 (and its more recent generation, SSP5-8.5) to be unlikely and “implausible to unfold” (Hausfather & Peters, 2020).
In managing hazards in developed areas under the statute, regulators are required to take account of “the expected effects of climate change” (NZCPS, Policy 27), not the worst-case, “implausible” ones.
This gravy train of over-zealousness, fuelled by the Ministry of the Environment, needs to be red-carded by decisive Executive action now. All that takes is a direction to officials to withdraw all guidance from government departments and Crown entities that recommend the use of the RCP8.5/SSP5-8.5 scenarios in regulatory decision-making.
We desperately need to return to policy science that is, as recommended by Dr Morgan Williams when Parliamentary Commissioner for the Environment;
1. Credible. The information is perceived by relevant stakeholders to be scientifically accurate and technically believable.
2. Salient. The assessment is relevant to the needs of policy and decision makers.
3. Legitimate. The information is the outcome of a process that is seen as procedurally unbiased and fair.
The most recent IPCC report concludes: “High-end scenarios (like RCP-8.5) can be very useful to explore high-end risks of climate change but are not typical ‘business-as-usual’ projections and should therefore not be presented as such” (Riahi et al., 2022, p. 386). In other words, in the real world of ‘business as usual’ these projections have a very high level of uncertainty and a very low probability of occurrence over the next 100 years (which is the maximum planning time frame required by NZCPS law).
I would add, these ‘high end’ scenarios that “no one believes in” should have no place in legally-binding, regulatory decision-making, such as district planning, or in the assessment of building and/or resource consents. The use of the IPCC’s mid-range emission scenario, RCP4.5/SSP2-4.5, with a greater than 66% probability of occurrence, should become the regulatory standard upon which all regulatory rules are written and decisions made.
What Simon Court is commenting on in the article is an example of chronic regulatory overreach at a significant deadweight cost to the economy, and to New Zealand’s productivity. Dealing with it via a ‘yellow card’, simply won’t do the trick.
*Katharine Moody was a senior tutor at Massey University's College of Humanities and Social Sciences in Palmerston North, who comments on interest.co.nz as "Kate". She is now retired from Massey and doing advocacy and consultancy planning.
We welcome your comments below. If you are not already registered, please register to comment
Remember we welcome robust, respectful and insightful debate. We don't welcome abusive or defamatory comments and will de-register those repeatedly making such comments. Our current comment policy is here.