Legal Requirements for New Zealand's Second NDC

The Government has opened public consultation for New Zealand’s next Nationally Determined Contribution (NDC) under the Paris Agreement. This will cover the period 2030-2035. 

The Government is looking for feedback on how to balance the various factors when setting the NDC. This will help determine the level of ambition in the next NDC. 

Submissions close at 11:59pm on Friday 8 December 2024, and you can make your submission here. 

There is currently no proposal on which to provide feedback. However, there are three key documents on the Ministry for the Environment’s website to support the consultation:

To help those interested in submitting on New Zealand’s next NDC, this short explainer provides context on what New Zealand’s NDC is, and on what New Zealand’s obligations under international law regarding setting the next NDC are. 

The journey to consultation

Initially, it wasn’t clear if the Government was going to consult on the next NDC at all. 

We wrote to the Ministry back in September saying that we think they were under an obligation to consult, pointing out that when the Government consulted on New Zealand’s first NDC, it received over 17,000 submissions. 

The Government then opened up targeted consultation with select groups. But after we (and others) pointed out that this was still insufficient, the Ministry for the Environment opened up wider public consultation. 

What is an NDC?

NDCs are country-specific climate commitments to reduce greenhouse gas emissions and adapt to climate impacts, contributing to the global goal of limiting warming to well below 2°C while pursuing efforts to limit it to 1.5°C. 

NDCs are cornerstones of the Paris Agreement’s ‘pledge and review system’. While the achievement of NDCs themselves is not legally binding, states must update and strengthen their NDCs every five years (Art 4(9), and report on their progress towards achieving them.  

In turn, parties are required to pursue domestic mitigation measures with the aim of achieving the objectives of their NDCs (Art 4(2)). 

New Zealand’s First NDC

New Zealand ratified the Paris Agreement on 4 October 2016. 

Our first NDC was to reduce greenhouse gas emissions to 30 per cent below 2005 levels by 2030. This was widely criticised at the time for lacking ambition. And so on 31 October 2021, after New Zealand passed the Zero Carbon Act amendments to our overarching climate framework law, New Zealand amended and increased the ambition of its NDC to a target to reduce net emissions by 50% below gross 2005 levels by 2030. 

Note that New Zealand’s NDC is more ambitious than our domestic emissions reduction targets (namely, the emissions budgets set under the Climate Change Response Act). That’s because when we set NDC1, we did so on the basis that the different would be achieved by New Zealand buying offshore mitigation credits.  

What are the core obligations for setting NDC2?

The Paris Agreement does set out a number of core requirements for NDCs, comprising a combination of obligations of result and obligations of conduct (otherwise known as due diligence obligations):

  • As a Party to the Paris Agreement, New Zealand is required to “prepare, communicate, and maintain successive NDCs that it intends to achieve” (Art 4(2)). This is an obligation of result.  

  • NDCs are meant to be “ambitious”, and parties are to “aim to reach global peaking of greenhouse emissions as soon as possible” and “to undertake rapid reductions thereafter” (Arts 3 and 4(1)). NDCs should also be aligned with the core temperature goals of Paris, as NDCs are the ways in which parties agreed to collectively meet the temperature goal.

  • Each Party’s successive NDC will (reflecting a strong expectation):

    • represent a progression from its current NDC - this principle means that a country’s new NDC must be a step forward and more ambitious than the last. This aligns with another Paris principle that parties should not backslide on their commitments;

    • reflect its highest possible ambition - while not defined in the Paris Agreement, it has been construed to mean the most that can be done given each party’s circumstances;

    • reflect its common but differentiated responsibilities and respective capabilities, in light of different national circumstances - this principle implies that while all parties have a responsibility to take actions to achieve the goals of the Paris Agreement, developed parties (that are generally wealthier and have contributed more to climate change to date) should take a lead.

(Art 4(3))

  • Each party is under a procedural obligation to include information on how it “considers that its NDC is fair and ambitious in light of its national circumstances”, and how it “has addressed Art 4(3))”. 

Due diligence obligations require states to “deploy adequate means, to exercise best possible efforts, and to do the utmost”. And it’s also worth bearing in mind that New Zealand is under a legal obligation under international law to approach its Paris Agreement obligations in good faith. 

Key issues 

As we see it, some of the key issues ahead of New Zealand setting its next NDC include:

  • Will New Zealand’s next NDC reflect our “highest possible ambition”, and what does highest possible ambition entail?

  • Will New Zealand use creative accounting to make our next NDC look more progressive than is actually the case, as we say happened with NDC1? How can we ensure that our climate targets are approached with integrity?

  • To what extent will the Government rely on offshore mitigation to set an ambitious NDC2 - and to what extent should it instead focus on ambitious domestic reductions?

  • The Paris Agreement states that Parties will aim to reduce emissions “so as to achieve a balance by anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century” (Art 4(1)). New Zealand currently relies heavily on net emissions reductions - namely, reducing emissions through removals (read: exotic afforestation) rather than gross reductions. What balance should New Zealand strike? 

  • What are the economic and reputational downsides of setting an NDC that is not adequately ambitious, particularly when compared to some of our trading partners?

LCANZI