Limits are limits in high-stakes environment bill – Newsroom

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Between 2012 and 2018, NZ lost the equivalent of more than 12,000 rugby pitches of Indigenous habitat to agriculture and urban development. Photo: Lynn Grieveson
Professor Catherine Iorns is in the Faculty of Law at Te Herenga Waka—Victoria University of Wellington and an adviser to the Environmental Law Initiative.
Dr Matthew Hall is a senior environmental researcher at the Environmental Law Initiative Trust.
Ideasroom
If we are serious about “environmental limits” then they need to be limiting. Dr Catherine Iorns and Dr Matthew Hall make a case for why the Natural and Built Environments Bill must be re-drafted to ensure a pivotal role for independent science.
The Environment Select Committee analysing submissions on the exposure draft of the Natural and Built Environments Bill may have been surprised by the spectrum of support for biophysical limits for the environment. But when Auckland Council, Beca, EDS, Fonterra, Forest & Bird, the Freshwater Iwi Leaders Group, Ngāi Tahu and the NZ Construction Industry all agree on an environmental proposal, it’s clear something might be up.
At the heart of the bill is a key proposal: the concept of environmental limits. Gaining global recognition as a key framework for ecological wellbeing, limits serve as biophysical “bottom lines” for what are considered acceptable levels of interference with the natural world.
The Government’s own statistics make our environmental predicament crystal clear: on most major environmental indicators, Aotearoa is in a precipitous decline.
Between 2012 and 2018, we lost the equivalent of more than 12,000 rugby pitches of Indigenous habitat (12,869ha) to agriculture and urban development. This rampant and ongoing conversion of New Zealand’s environment to human ends is putting untold pressures on our plant and animal life, with huge swathes of Indigenous species now at risk of extinction.
It is also having well-documented effects on the water quality of our rivers and lakes. Based on the latest statistics, more than half of our lakes are regarded as having “poor” or “very poor” water quality, and 68 percent of monitored groundwater sites do not meet E.coli drinking water standards.
Even to those who profit handsomely from extractive industries, it is clear something has to change. And yet, the savvy resource management operators in New Zealand know that the devil is in the details. Resembling something of an all-you-can-eat buffet, the current draft bill uses limits in such a way that everyone can see something they like.
In the exposure draft, compliance with limits is required to achieve the purpose of the Bill, but at the same time the draft retains the option of mitigating environmental damage. The implication here is that limits are not actually biophysical boundaries but rather “soft” limits that can be adjusted according to the circumstances. Submitters such as the NZ Property Council and Straterra would like limits that are “flexible” and “agile” rather than limits that are hard and fast. But the very idea of “flexible limits” is a paradox: limits that can be bent are not limits at all, they’re merely guidelines.
Another area of ambiguity is what environmental limits may actually cover. Going against the recommendations of the Government’s own report, the bill currently only lists general subject areas for which limits must be set (e.g. freshwater quality), without any precise details about what exactly limits will be set for (e.g. dissolved inorganic nitrogen).
Then there is confusion about where the level of limits should be set, as the exposure draft is silent on this point. The current drafting suggests that limits may be formulated as the “minimum biophysical state” or the “maximum amount of harm” to the environment. This potentially renders our most stable ecosystems vulnerable, by allowing further degradation to the point at which the ecosystem can take no further harm. Worse, for ecosystems that have already been pushed way beyond their limit, there’s nothing here that will drive the improvement required to get them even to the biophysical minimum.
Additionally, the exposure draft proposes that environmental limits will be set by the Minister for the Environment, but the role of independent science (including mātauranga Māori) in limit-setting is unclear. What is clear is that many submitters are skeptical of political interference in setting environmental limits. The NZ Māori Council hit the nail on the head by pointing out that having ministers set limits “will politicise this process and ultimately undermine one of the main purposes of the act”.
Clearly there’s a lot more work to be done to get this fundamental pillar of the draft bill fit-for-purpose.
If we are serious about “environmental limits” then they need to be limiting. The ordinary application of the word “limit” implies a point beyond which something may not extend, and a restriction on the size or amount of actions permissible or possible.
Environmental limits therefore need to actually restrain activities, such as conversion of Indigenous habitats, which continue to drive environmental degradation. They need to restrain detrimental activity even if it’s inconvenient for vested interests. They need to be hard limits, beyond which it is not legally possible to extend; they can’t be flexible limits ignored for the right development. If limits are not achievable or practical under current circumstances, that is good, because that is the point. But instead of then bending those limits for “business as usual”, we must be brave enough to use them as tools for fundamentally rethinking the way we do things.
It’s not always easy to pinpoint the maximum amount of harm an ecosystem can take. Ecosystems don’t respond to pressure in a linear fashion. Feedback loops and tipping points make limits hard to determine. Often, we only know once they’ve been passed. To avoid past mistakes, scientific experts must have a strong role in limit-setting and achieving what leading scientists have called a “safe operating space” for human society.
We’ve outlined a couple of options in our submission on the bill, including setting up an independent expert body similar to the Climate Commission that determines what relevant science requires. The Government’s own report on environmental limits recommended the same.
We couldn’t put it better than Federated Farmers, which argues forcefully that “environmental limits cannot be simply left to executive decision-making and political whims”.
For limits to work, the bill must be re-drafted to ensure a pivotal role for independent science. The stakes will simply not allow for anything else.
Additional authors:
Allan Brent is a senior adviser and conservation law researcher at the Environmental Law Initiative.
Molly Robson is a communications adviser at the Environmental Law Initiative Trust.
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