Government accused of breaching Zero Carbon Act

The Government is breaching the Zero Carbon Act by ignoring the legally binding emissions reduction plan without following proper processes to change it, activist group Lawyers for Climate Action has alleged.
The first emissions reduction plan was implemented by the Labour government in 2022 and it covers the period 2022 to 2025. A second plan, which will cover 2026 to 2030, is due to be consulted on by the new Government in the coming days.
Just because the Government disagrees with its predecessors does not mean it can disregard the Emissions Reduction Plan which covers the current carbon budget period, however, Lawyers for Climate Action executive director Jessica Palairet said.
“It is required under the Climate Change Response Act to have an emissions reduction plan that covers each and every emissions budget period. The really important point is that the Act provides a mechanism for changing the emissions reduction plan, so it perceives the possibility of a new government or a new minister, or any government just wants to change tack,” she told Newsroom.
“That means that the emissions reduction plan that is currently in effect, that is governing this emissions budget period, is still on foot. The Act envisages that if you want to change course, you have to consult on it, you can’t just ignore the emissions reduction plan.
“I’ve not seen any comments from the minister or from anyone in government talking about what’s going to happen for the next 18 months with emissions Reduction Plan 1. But then in the meantime, the Government’s clearly not following their first emissions reduction plan.”
At issue are a vast number of climate policy decisions the new Government has taken that fly in the face of the ERP. Palairet has written to Climate Change Minister Simon Watts and Transport Minister Simeon Brown about one decision in particular, to rewrite the Government Policy Statement on Transport to reduce emphasis on emissions reductions.
The ERP requires the transport policy statement to guide “investment that is consistent with the emissions reduction plan”. However, the new version now states that “Following the general election and a change of government in late 2023, the intended emissions reduction policies foreshadowed by the previous Government are being reassessed. For this reason, GPS 2024 has not undertaken the alignment exercise as anticipated in emissions reduction plan 1.”
This isn’t good enough, Palairet wrote in the letter dated July 1.
“The problem is that the Government cannot choose to simply not ‘undertake the alignment exercise as anticipated in emissions reduction plan 1’.”
The Zero Carbon Act makes clear that the first emissions reductions plan applies to the entire duration of the first emissions budget period, which lasts until the end of 2025, she wrote. “We consider it unlawful for GPS 2024 to disregard emissions reduction plan 1.”
In other words, by taking this decision and clearly acknowledging it conflicts with the first plan, the Government may be breaching the law. It is entitled to change the plan, but there is a proper process for doing so which the Government has not undertaken.
Moreover, Palairet wrote: “We also question whether emissions reduction plan 1 could be amended to align with the policy direction set out in GPS 2024, given the Zero Carbon Act only envisages amendments to the extent that they enable emissions reduction plans to maintain their currency, rather than entirely change tack.”
The specifics, she told Newsroom, are still unclear, having not yet been tested in court.
“What does ‘maintain its currency’ mean? Does it mean amend because you have a new Government and a new government policy platform, or does it assume that it’s tweaks rather than a fundamental change of tack? I think that’s an open question. I don’t think it’s clear, necessarily, that a government can completely rewrite the climate change policy trajectory,” she said.
Lawyers for Climate Action is “assessing our options”, Palairet said. The group previously took the Labour government to court on a range of issues, including the ambition of its climate targets (a case that is still under appeal) and decisions regarding the emissions trading scheme.
On the latter issue, the government had similarly made decisions without following proper processes in the Zero Carbon Act. The lawyers were victorious and the government had to make new decisions, which ultimately led to tighter controls on emissions under the country’s carbon market.
“We’ll put them on notice if we decide that’s what we need to do,” Palairet said. “We’ve written a couple of letters to them now about this, so I think that says everything that we need to say.”
Newsroom asked Watts whether he was confident the Government was following the law in its treatment of the Emissions Reduction Plan. He did not answer those questions.