Our Submission on the Regulatory Standards Bill
We have submitted on the Proposed Regulatory Standards Bill, focusing on the concerning impacts on climate law and policy making, which you can read here:
The Key Points:
We have consistently urged the Government to ensure that its decisions reflect the urgent need to reduce emissions in line with our domestic and international legal obligations. The realities of climate change are already here. NASA and the World Meteorological Organisation have confirmed that 2024 was the warmest year on record, with temperatures already surpassing 1.5°C above pre-industrial levels. Fires are currently ripping through California, resulting in damage and economic loss estimated between $134-150 billion dollars (USD). Last year, the Climate Change Commission warned that New Zealand is not on track to meet its statutory 2050 net zero target, and the Government’s Second Emissions Reduction Plan does not put New Zealand on track to achieve its third emissions budget.
This Proposed Bill must be viewed within this context. It places disproportionate value on private interests over environmental and climate protection, and deploys “principles of responsible regulation” that are selective, ideological, and narrow. All in all, this Bill will make it harder for Aotearoa New Zealand to develop the laws and regulations required to successfully transition to a low-emissions economy - at a time when we need those laws the most.
The constitutional consequences of the Proposed Bill are significant. One of the Bill’s predecessors was criticised by Paul Rishworth for being akin to a “Second Bill of Rights”. This Proposed Bill is troubling in similar ways. Any legislation with this level of significance requires wide and good faith consultation that is upfront about its potential constitutional consequences.
The principles of responsible regulation exclude many principles that are critical to good rule-making. These include, but are not limited to: honouring Te Tiriti o Waitangi/Treaty of Waitangi; the rights set out in the NZ Bill of Rights Act 1990; the right to a clean, healthy, and sustainable environment; the precautionary principle; international legal principles and commitments (including our commitments under the Paris Agreement); and the need for evidence-based regulation and law-making.
In their place are principles focused on one articulation of the rule of law, selective rights and liberties, good law-making processes, and good regulatory stewardship. Assessing laws and regulations against these principles will have a chilling effect on pro-climate and environmental laws and regulations, privileging the protection of individual liberties and property rights while demoting environmental and climate considerations. In practice, for example, this means that laws or regulations designed to protect natural areas are viewed not for their critical role in preserving biodiversity or their role as a carbon sink, but primarily as restrictions on a landowner’s use of their property. The principles embed norms of law and regulation-making that are inconsistent with the complex needs of modern society. Omitting consideration of the precautionary principle, for instance, risks favouring law-making that is short-term in focus and reactive, leading to worse decision-making on climate and environmental issues in the long term and imposing higher costs on the public.
The principles, as drafted, are open to a wide range of interpretations that will create uncertainty and delay, including because their meaning will inevitably be tested through courts.
The scope of the Bill is also incredibly broad. Despite being a Regulatory Standards Bill, the Discussion Document uses the term “regulation” to “encompass any government intervention that is intended to direct or influence people’s behaviour…[and] therefore includes, but is not limited to, legislation” (p. 9). This, along with the potential requirement for “fair compensation” to be paid for impairments to property rights, means that the Bill may scupper current and future climate law and regulation-making and make those laws and regulations much more expensive. For instance, it is not difficult to imagine that many of the laws and regulations set out in the Government’s recent Second Emissions Reduction Plan may require the Government to pay compensation to polluting companies and industries to the extent some of those policies may “impair” property rights. As Jonathan Boston notes, such a requirement for “fair compensation” risks turning the principle of “polluter pays” into the principle of “non-polluters pay” for pro-climate and environmental regulation - plainly a flawed and unfair basis for climate regulation and policy
We strongly urge the Government not to proceed with this Bill.