Volume 12, 2008

Nicole Lederer

Global warming is a major threat to human society in 2008 which changes the climate of our planet in an alarming way by causing natural disasters and therefore human tragedies. Besides the environmental impact, it is also seen as a huge economic problem. According to a report written by the former chief economist of the World Bank, Sir Nicholas Stern, the environmental impact of global warming could displace up to 100 million people due to rising sea levels, water shortages could affect one sixth of the world's population, up to 40% of the world's species could become extinct, and droughts could affect the water and food supply of tens and even hundreds of millions of people. In order to tackle climate change, emissions trading schemes have been developed all over the world. This paper assesses the strengths and weaknesses of the European Union Emissions Trading Scheme ("EU ETS") in order to determine whether or not it could serve as a model for the International Emissions Trading Scheme ("IET") under the Kyoto Protocol. This comparative analysis scrutinises the trading terms of the EU ETS in detail and shows similarities and differences between the IET under the Kyoto Protocol and the EU ETS. A future outlook for both emissions trading schemes will be presented.

Mary Kate Crimp

The object of this research paper is to analyse the use of environmental taxes as a mechanism through which to regulate environmental pollution. In particular, it focuses on the criticism that the use of environmental taxes reduces domestic competitiveness and drives producers to relocate to non-taxing countries known as "pollution havens". The paper questions whether this criticism can be addressed through the use of Border Tax Adjustments and analyses whether such an approach would be consistent with World Trade Organisation law. It concludes that it is important for New Zealand to consider alternative methods of addressing environmental pollution. In this respect, environmental taxes may be of some assistance. While acknowledging that environmental taxes would open New Zealand up to some risk of businesses moving to "pollution havens", it concludes that this risk, although minimal in the first place, could be further minimised through the implementation of Border Tax Adjustments. It does note, however, that in order for a Border Tax Adjustment to comply with World Trade Organisation law, it cannot be calculated based upon the production process methods utilised in the production of the products in question.

Ingrid Leersnyder

This paper identifies issues that are hindering the implementation of Coastal Occupation Charges for private or commercial occupation of the coastal marine area pursuant to section 64A of the Resource Management Act 1991. It argues that the constraints imposed by this legislation prevent local authorities from making definitive decisions on the implementation of a coastal occupation charging regime. A brief discussion is presented on the allocation of property rights in the Coastal Marine Area. The relevant legislative history of the Resource Management Act is described followed by discussion on the concept of resource rents and how they are applied to users for other public spaces. A case study describing some of the challenges encountered by the Auckland Regional Council when setting seabed licence fees for two marinas in Auckland is used to illustrate the tensions inherent in such a process. The paper then goes on to suggest that an alternative to using the Resource Management Act process to implement charging regimes could be the use of existing sections in the Local Government Act 2002 and the powers councils have to create bylaws. In conclusion it is contended that in its current format s64A is unmanageable at a local government level and may need central government intervention to bring a final resolution to the issue.

Lars Suhr

In 2008, the Government agreed that the Ministry for the Environment should instruct the Parliamentary Counsel Office to draft an Exclusive Economic Zone Environmental Effects Bill. A regime that increases environmental protection for the New Zealand exclusive economic zone ("EEZ") would be welcome, but in relation to seabed mining a stronger regime is needed than has been envisaged. The mining may affect abyssal plains, seamounts and hydrothermal vents. The proposed regime does not live up to the high standards set in relation to the mining of the deep seabed in international legal and institutional arrangements under the United Nations Convention for the Law of the Sea 1982 and its associated 1994 Implementation Agreement. Marine ecosystems harbour an immense and valuable biodiversity, which requires effective protection. The policies in the proposed legislation will need to be tightened considerably in order to ensure such protection. The precautionary approach should be applied with rigour, including the application of a conservation-oriented approach that incorporates the establishment of marine protected areas. Exploitation should be restrained in the interests of future generations, and strict liability should be imposed for environmental damage.

Laura Fraser

This article reviews the law surrounding the legal nature of resource consents granted under the Resource Management Act 1991. The article explores questions of property rights that have arisen in this context by analysing the legal function of property rights in New Zealand, the statutory specification of resource consents, and the current treatment of consents in case law. The article argues that recourse to property concepts when dealing with resource consents may be unhelpful, and may distort the statutory nature and purpose of such consents. It is suggested that amendment to the RMA to provide for clear legal treatment of consents is preferable to treating consents as property rights.

Deborah Lynne Johnson

Electricity has been essential to the social and economic development of New Zealand. As the electricity sector has evolved, it has greatly contributed to the wellbeing of many people's lives and has become an integral part of the fabric of New Zealand Society. New Zealand is a country richly endowed with an abundance of renewable energy resources such as wind, water, and geothermal, which currently provide 67 percent of electricity supply. Increasingly, legislation and policy is encouraging electricity generation from renewable resources, with the New Zealand government setting a target of 90 percent electricity generation from renewable sources by 2025. Meeting that deadline will require a significant investment in new electricity projects within the next 15 years, quicker processing of major renewable generation proposals, and investment in new technology such as marine energy. Furthermore, demand-side management is fundamental to ensuring New Zealand reaches its sustainable energy goals.

Thomas Garry

A significant amount of greenhouse gas emissions are attributable to the operation of buildings. Existing technologies provide substantial cost-effective opportunities for reducing these emissions, but the opportunities remain unrealised because of known market failures and barriers in the building sector. New Zealand has begun to pursue policies to address this, such as strengthening the building code. Much of the regulatory attention, though, has focused on new buildings, despite the existing building stock presenting the greater opportunity for reducing emissions in the near term. In large part this stems from the fact that reducing emissions from existing buildings in a cost-effective manner is, for a number of reasons, the more difficult endeavour for government. New and innovative regulatory approaches are required. The literature on so-called "smart regulations" and reflexive environmental law provide principles for developing such regulations. The application of some of these principles can be seen in the regulatory measures other countries have taken to reduce emissions attributable to existing buildings. This paper examines these measures taken overseas and articulates a normative framework for New Zealand to improve its regulatory approach to existing buildings in the context of its overall climate change strategy.

Jessica Irvine

The majority of the world's population now live in urban environments and so the planning and management of these environments has become increasingly important. Addressing global environmental issues, like climate change, requires proactive, sustainable urban management and structure. The vehicle for providing this direction is the practice of urban design. Urban design is concerned with the shape and form of cities, how they look, feel, function and grow. It encompasses numerous disciplines, spans the various components of a city, and covers social, cultural, economic and environmental viewpoints and concerns. The integration of all these elements inevitably makes urban design a complex activity. Achieving good-quality urban design therefore requires strong leadership and a "big picture", forward-thinking approach. This paper appraises New Zealand's implementation of this approach. It looks at the regulation of urban design in New Zealand and considers the potential efficacy of a National Policy Statement in this framework. Some comparisons are drawn with English and Australian urban design regulation and, finally, suggestions are made regarding the role of national policy in the future of urban design in New Zealand.

Kellie Ewing

Across New Zealand, community conservation groups are taking action to restore and rehabilitate damaged ecosystems. Part of the work that these groups undertake is the restoration of areas of private land that are significant in protecting New Zealand's biodiversity but not protected within the public conservation estate. One concern, however, is that the efforts of community conservation groups may not be protected in the long term if the ownership of land that they are restoring changes. Existing mechanisms available for the protection of native ecosystems on private land in New Zealand provide opportunities for landowners to enter into conservation covenants in favour of the Department of Conservation, local authorities, or the Queen Elizabeth the Second National Trust. However, few effective options are currently available to allow community conservation groups to be directly involved in the legal protection of private land. Overseas jurisdictions such as Australia, Canada, and the United States have, however, taken innovative approaches to legal protection on private land to ensure that community conservation groups have the ability to directly negotiate legal instruments for protection with landowners, or to place groups in a position where they can purchase and protect private land through their own means. A number of these approaches could be usefully adopted into New Zealand law to facilitate increased involvement of community groups in the protection and restoration of private land.