EDS launches major new report on risks and solutions in replacing the Resource Management Act

The Environmental Defence Society (EDS) has today released its third and final report in a multi-year project examining the Government’s ‘phase 3’ resource management reforms: Replacing the Resource Management Act – Risks and Solutions.

The report provides an in-depth analysis of the Government’s blueprint to replace the Resource Management Act 1991 (RMA) with two new statutes and explores the risks and opportunities these proposals present.

It explores seven key shifts that are being proposed for the new system, including:

• Narrowing the scope of the system to externalities, and the implications for land use, urban design, and climate resilience.
• Proposals for regulatory takings and the risks of undermining public interest environmental protections.
• How legislative design – splitting the RMA into a Planning Act and Natural Environment Act – could fragment management and increase complexity.
• The purpose and principles of the new legislation, including weak recognition of the environment and Treaty obligations.
• Frameworks for environmental limits, strategic spatial planning, and national standardisation.

The report draws on international lessons from Ireland, Singapore, the United Kingdom and Australia, and provides detailed recommendations for how New Zealand can design a system that both protects nature and enables development in the right places.

“These reforms represent the most significant changes to New Zealand’s environmental law in a generation. The risks are very real – but there are also opportunities if the design is done well,” says EDS Reform Director and report author Dr Greg Severinsen.

“For example:

• Environmental limits: Strong limits could improve on the RMA’s balancing between environmental protection and development – but only if set with the right criteria and backed by legal consequences and accountability. Dropping nationally set limits for freshwater quality would be a serious step backwards.
• Spatial planning: A promising tool, but only if constraints like significant natural areas and landscapes are identified upfront. Done well, it can also boost biodiversity and other environmental outcomes, as seen in Singapore.
• Standardisation: National default zones may bring efficiency and certainty, but New Zealand’s unique environments still need bespoke rules. Blanket reliance on permitted activities would cause major problems.

“Policy-makers need to approach other shifts with extreme caution. For example:

Regulatory takings: Introducing a compensation regime is a very bad idea and would likely chill environmental regulation, overwhelm councils and lead to increased litigation.

• Splitting the law: Dividing resource management into two statutes risks complexity, duplication and gaps. The environment cannot be neatly compartmentalised. There are some ways forward that are better than others, and careful design could lead to less bad outcomes.
• Purpose of new law: The RMA has failed because it hasn’t been protective enough. New legislation must strengthen environmental safeguards, not just enable development.
• Externalities focus: Limiting the system only to externalities is short-sighted and would exclude crucial protections like preventing land contamination, safeguarding elite soils and ensuring good urban design.

“Much of this direction of travel is at odds with other countries, which are increasingly recognising that environmental protection and enhancement are an integral part of a thriving economy and society. The European Union’s recent Nature Restoration Law is a case in point. Without careful attention, we will be going from leader to laggard.

“The two new Bills replacing the RMA are expected to be introduced towards the end of the year, and this will be the public’s only chance to engage. The report lays the groundwork for people to engage meaningfully in the select committee process.

“If we don’t get it right this time, we may be in store for yet another round of flip flopping when government changes. That will create more cost, frustration and paralysis. Environmental law is a long game, requiring stability and consensus,” concluded Dr Severinsen.

Grateful thanks to Forest and Bird and the Michael and Suzanne Borrin Foundation for supporting the project.

The Report is available here.

More: Greg Severinsen

greg@eds.org.nz