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New Zealand Journal of Environmental Law |
Last Updated: 14 February 2023
181
And the people asked him, saying: What shall we do then?
Luke 3:10
The Resource Management Act 1991 Through External Eyes
Inga Carlman*
The Resource Management Act 1991 was drafted for sustainability and probably still reflects the state of the art as regards environmental legislation for sustainable development. Modern theory of environ- mental law methodology has to a high extent focused on implementation deficits based on the significance of law in rule of law countries and consequently on the concept of legal operationalisation of environ- mental goals (ultimately ecological sustainability). This not only puts, inter alia, balancing in a new light but also calls for systemic think- ing and reconsideration of bottom-up approaches. What, then, is to be legally operationalised under the RMA and are there counterproductive functions, explicit or implicit, in it? This is discussed in depth, putting the RMA planning system at the centre and observing the lack of far- reaching substantive standards and obscurities as regards goals and means. The discussion reflects theory of environmental law method- ology, systems theory, and the issue of non-linearity of ecosystems, also when the role of courts is elaborated.
1. INTRODUCTION
In the 1960s environmental problems, together with overpopulation, seemed to dawn upon international society. One of the outcomes of this was the enact- ment of environmental laws in a number of countries. Sweden belonged to
*Inga Carlman is a Professor of Environmental Science within the Department for Technology, Physics and Mathematics at Mid Sweden University, and partner at IMIR — Institute for Environmental Law, Sweden (email: inga.carlman@imir.com).
this group of early birds. Between 1960 and 1972, the year of the Stockholm Conference, Sweden made great progress with environmental law. In the wake of this, environmental law research started to grow, closely following the developments in other countries, especially the US. This period also marked the beginning of the evolution of environmental law research in relation to sustainable development. However, while the environmental law in Sweden stagnated in the 1970s, the research moved on.1
The implementation of sustainable development implies a new legal par- adigm. Environmental laws in most countries reflect a restricted and defensive thinking, preventing only the most fierce development by balancing environ- mental and economic effects in ways that do not interfere with mainstream economic paradigms. The structure of these laws furthermore rests on the principle of special law — i.e. environmental protection law, water law, nature conservation law, planning law, etc — which all are, or were, as the case may be, to be applied in parallel both with each other and with other applicable laws within the legal system. A legal system for sustainable development invokes new issues, and a central one concerns science of large-scale systems, which in a knowledgeable way has been analysed by Decleris.2 To this I will return below. When New Zealand enacted the Resource Management Act (“RMA”) in 1991 it seemed to move to the forefront in the field of environmental law. This article analyses the RMA from an environmental methodology perspective3 and with regard to general principles related to sustainable development.4 Its core issue is how the RMA relates to the problem of making sustainable develop- ment operational in a legally enforceable way. The study does not examine substantive and procedural law of the RMA from positive law aspects. The point of departure is instead the methodology in the RMA, its principles, types of standards, and other instruments and institutions, enforcement rules, etc to meet
the purpose stated in the Act. This makes this article a study “from outside”.
1.1 The Three-Filter Theory
Implementation deficits and the mechanisms behind them as regards envir-
2.0 (Environmental legal basic issues 2.0) (Åmyra Förlag, ISBN 91-971256-5-2).
onmental policy have been studied by, in the first place, Staffan Westerlund. Environmental policy instruments are basically of only three types — soft, economic, and legal.
Informative and other soft instruments aim to enlighten and persuade people to behave in accordance with the policy, in the hope that they act in temper- ance. This filter “stops” those people from acting counter to the policy, who are ready to voluntarily abstain — but only them. All those who disregard ethics etc might, on the other hand, still abstain if they lose money. Hence the second filter
— an area for economic instruments. If not even this filter “does the trick”, the action will be carried out, unless the final, legal filter prevents it.
The three-filter theory is extremely simple and robust. It is based on many years of analysis about why implementation deficits are normal (and success stories unusual), about arguments for and against different kinds of policy instruments, and — not the least — on the fact that most of the global environmental deterioration so far has been perfectly legal.5
As has been pointed out both by Decleris and Westerlund, sustainable development is not a matter restrained to the “environmental” part of the legal system, but is dependent on the legal system as a whole. Much implemen- tation deficiency is in fact due to counterproductivity within the legal system. The theory of implementation deficits identifies three types of interdependent deficits.
Figure 1. So far, law is normally not sufficient for sustainability, and then the compliance and enforcement is less than total, and finally the environment may respond in non- linear ways and not reach the sustainability level. For each step, deficits are likely to occur. The striped result sector depicts the implementation deficit. An adaptive control system has a feedback to the control measures and rules (but not to the goal). From Westerlund (note 3).
The theory presumes a policy (a goal or whatever — for example, sustain- able development). When the policy is translated into law, legal, technical or other problems might result in law, so that the substantive part of the law is not fully effective for the policy. This is the environmental legal deficit (see fig. 1). Then, when the law (and additional other instruments which normally have to be founded on law) is to be applied, mistakes and omissions and delays etc cause an enforcement deficit. Since nature reacts in non-linear ways, and there are distant contributors of impact as well, the final result possibly does not level with the enforcement result, hence an implementation deficit.
This theory illustrates how the first (environmental legal) deficit, so to say, multiplies, thereby making successful implementation of environment- related goals virtually impossible. Unless the legal system itself adapts to and compensates for implementation deficits, the system will be ineffective. Following this theory, successful environmental policy requires an implemen- tation system that functions to restrict anthropogenic impact to the extent that actually results in the factual achievement of what the policy aims at — e.g. sustainable development. This calls for a legal system with built-in feedback functions.
The basic situation in a rule of law country is, bluntly put, that anything which is not forbidden is legal. From that, it follows that anything that is not stopped with soft or economic factors can be carried out, unless law prevents it. And if the law is unclear or silent about it, the law actually sustains the project. Consequently, the theory above relates to rule of law countries only.
As mentioned earlier, sustainable development in relation to legal systems invokes large system issues and must be approached in accordance with appro- priate theory and practice, compatible with science of large-scale systems.6 This must in turn be based on the recognition of nature as fundamental for life and development.
In The Law of Sustainable Development Decleris gives a clear picture, with a legal philosophical depth, of the driving forces behind the present environmental situation and of future needs in order to move towards sustainable development. His reasoning can be boiled down to the following: (a) “a control crisis arises when any problem becomes more complex than the existing control system”;
(b) there is a “demand for an effective state and for effective law” and the “measure of success will be the extent to which the behaviour of states, citizens and organisations becomes ‘sustainable’”; and (c) there is a need for a change “from the ‘reductionist’ to the ‘systemic’ method and to improve the large-scale systems by means of value theory”.7
1.2 Law as a Control System
The legal system, and in particular environmental law, faces new challenges when sustainable development is to be implemented. Referring to sustainable development as a “goal” tends to set a mind-trap, luring us to think of it as “the final society”, which can be defined. Environmental law theory applies an allegory that is sustainable development as mankind’s safe journey through time.8 Agenda 21 is supportive in laying out a strategic programme for this.
Following Decleris’ convincing reasoning, a sustainable legal code must be a system compatible with the biosphere. The “rule of sustainability” has to be identified. In a systemic terminology this means to handle the sustain- able interrelationship of man-made systems and of ecosystems. Mainstream legal systems today allow for even irreversible exploratory development. If they remain that way, they make unsustainability legal. The solution to such problems calls for a control system founded on an appropriate philosophy and construction, securing the natural resource base and thus the sustainability of ecosystems. The logic behind this is simple. Nature with its resources and ecological services constitutes the very fundament, directly or indirectly, for social welfare systems, people’s well-being, and economic development.
There is a need for general sustainability principles. The formulation of principles has always been an important task within the field of law. Sustain- able substantive principles can play a vital role when constituting a framework for the sustainable relation between man-made systems and ecosystems. Since sustainable development implies changed individual behaviour and attitudes, such a transformation process cannot be handled by the state and law alone. The public/society and the market must, according to different theories and/or ideologies, be allowed to participate. Sustainable development includes careful management of the environmental, cultural, and social capital. However, the natural environment must be recognised as the necessary prerequisite for social and economic sustainability. This reasoning is based on natural science and is reflected in the Rio Declaration and in Agenda 21.
Consequently, man-made systems, such as legal systems, must be made congruent with ecosystems — in the end, the biosphere. Legal structures must hence be constructed according to systemic principles, recognising natural science. Sustainable legal systems must thus relate to the complex and dynamic systemic model of large-scale systems. According to Decleris, they embrace
seven subsystems: the evaluative or value system (fundamental long-term control elements); communication system; hierarchical structure; system of governance; environmental control system; system of reproduction (securing the survival of the system); and the co-ordination system (harmonising practices of the human members with the overlying systems).9
The rule of law protects individuals from official interventions that lack a legal ground. This means that no authority can force or stop a person from doing something unless it is regulated by law. If a goal or an environmental standard10 is to be binding and legally effective, it must therefore be transformed into enforceable law. This process is in environmental law methodology called legal operationalisation.11 It requires a system which (a) makes the political goals legally binding, thus providing them with power and credibility; (b) breaks down the goals into sub-goals, standards, etc; and (c) allows for these sub-goals or standards to be transformed into rules of conduct, which are legally enforce- able against persons. This last phase clarifies persons’ rights and obligations.
Sustainability (or environmental) goals raise two fundamental system issues. The first is the relationship between what actors (individuals, organisations, etc) do and how non-linear ecological systems react. The second has to do with uncertainty and risk.
Both call for a feedback mechanism in the control system, which will become active when the prevailing environmental situation is worse than a binding goal. Such a deficit situation calls for changed rules of conduct in order to meet that goal, which e.g. can concern a non-attained environmental standard.12 Such a feedback mechanism in the legal system must include obligations for a responsible authority to strengthen rules of conduct in order to correct the unsustainable situation.
In environmental control debate, some misconceptions might be caused by the slogan-like expression “command and control”. Legal control is much more than that. Gipperth studied environmental quality standards as still another type of policy instrument and named them “navigating rules”, since they on
the one hand include obligations, and on the other hand are non-enforceable against persons.13 So far, one regards them as typical lex imperfecta. But if so, we miss something. This type of standard obligates someone (a competent authority) to exercise such control over people’s and enterprises’ behaviour, so that the goal — the standard — will be attained and then maintained. The controlling authority is obliged to navigate according to the standard. Thereby, environmental law methodology recognises “navigate, command and control” as a policy instrument located in the third filter.
Navigation standards reflect the relationships between goals and individual conduct (see fig. 2). Sustainable development viewed as mankind’s voyage through time, not a goal, can be undertaken in several ways. This influences the navigation, but never questions the supposed policy — that of sustainability.
The reasoning above articulates a need for an instrument, a function, where- by sustainability is “transformed” into effective, enforceable rules of conduct which are sufficient, observing risks for enforcement deficits, to fully implement (achieve) sustainability.14 Environmental law methodology has found planning to be the kind of instrument that can rectify non-linearity in nature into linear enforceable law and at the same time introduce feedback into law.15
Figure 2. Environmental control puts activities in focus in order to limit the total controllable anthropogenic impact so that it, together with what comes from far away, keeps water quality so high that the target fish population will prosper. The cause-effect chain is depicted with black arrows. As long as the resource-related goal is not achieved and maintained, the environmental control has to get back — ultimately all the way to the activities and e.g. impose harsher restrictions. The system has to be adaptive, as depicted by the grey feedback arrows. (Based on Carlman, infra note 15).
<http://www.imir.com/pdf-filer/icambio.pdf> .
Modern environmental policy is moving away from reactive to proactive approaches — i.e. to prevent upcoming environmental degradation instead of cleaning up afterwards. The question is to what extent environmental law has followed the policy.
Today a number of legal techniques have been developed in order to remedy, mitigate, or avoid environmental and resource degradation. Standard techniques include substantive standards reflecting precautionary principles, etc, personal or human environmental rights, and procedural approaches.
Within the first group we find Best Available Technique (“BAT ”) and the human obligations approach (an obligation to act carefully, or restrain one- self so as not to deprive others of resources necessary for their decent living
Planning is an old, in principle proactive, way to structure and handle the future. It is also found to be essential for legal operationalisation, as men- tioned above. Environmental planning is in environmental law methodology described as an overarching approach, which easily can be combined with the other approaches, and it reaches a certain kind of sophistication if it includes public participation. Environmental planning is a way to implement a national environmental policy, in a disciplined and flexible manner. It should reflect a hierarchical planning structure starting at a national level and continuing at regional and local levels. Planning at lower levels must never contradict plan- ning at higher levels. Environmental planning is renewed regularly.In a legal operational context, where e.g. binding environmental goals and ecosystems’ non-linearity is reflected in navigating rules, we can achieve adaptive environmental planning.17 Whereas environmental planning as such
relates to ecological sustainability, adaptive environmental planning is intended also to maximise development space within the framework of ecological sustainability. The theory of adaptive environmental planning is based on five criteria.18
If rules, reflected in these approaches, are included in a legal system and used to the maximum of their inherent capacity, we have installed a control system that today has no theoretical competitor that seems capable of managing sustainable development. Moving towards sustainable development calls for resource management. A legal system consists of rules combined in ways that make the system effective and efficient. Its consequences must be managed.
Suppose that law had only one substantive mechanism, namely environ- mental quality standards. Such a legal system would cause resources to be used ineffectively. If, for example, someone applies for a permit to discharge waste water into a “virgin” river and the discharge will not violate water quality standards, it might be that this one activity would consume the entire capacity of the river, thereby blocking further development. If, on the other hand, there were no water quality standards but substantive law requiring anti-pollution meas- ures within the framework of BAT, each new enterprise complying with BAT might be allowed, without the law stopping further enterprises when ecological thresholds might be passed. If, however, the environmental standard instrument is combined with BAT, more activities might use the capacity of that river, due to a more efficient technique being used, without the water quality limits being jeopardised. This example illustrates something very important. Ecological sustainability can in principle be obtained with only environmental quality standards. But sustainable development (i.e. development added) benefits from minimisation of environmental impact without going beyond quality limits.19
Since the 1980s deregulation has gained footing as a rather popular mech- anism. It reflects voluntary approaches combined with information and can take the shape of covenants, gentlemen’s agreements, benchmarking, etc. This is a kind of contra-rule approach located in the second filter. It has, however, been proven not as efficient as was hoped for.20 For anyone understanding incentives, the rule of law, and economics, this might not have come as a surprise. Already Hardin’s “tragedy of the commons” explains this, although implicitly.21
Balancing of interests has, with only minor exceptions,22 characterised environ- mental law. Legislators consider many interests. Explorative and trade interests
Typically, balancing involves two or more sets of interests — i.e. private and public — in different constellation: private against public interest, or between private interests, or between public interests.25 However, today the responsibility for future generations, explicitly expressed by the international community, upsets such traditional limited thinking. On whose shoulders — public (state), or private, or both — should the burden to effectually guard the interests of future generations be put? The answer must generate adequate law.Environmental law methodology implies that any answer to such a question is misleading, unless it is recognised that anthropogenic impact ultimately is a result of human physical behaviour (even if the board of directors decides that a project shall be carried out, nature is not affected until the operator of the caterpillar starts her work). Consequently, all persons must share the burden and the legislators must see to it that this takes place. Provided that sustainable development is to be achieved.
This calls for new approaches to balancing issues. Balancing in relation to the environment is made in a situation where one “party” is the ecosystem, the reactor. It is hence up to the legislators to balance environmental quality against economy or whatever. Once this balancing is done (the result being e.g. a quality standard), it is done. Thereafter the only balancing that may take place is within prescribed ecological limits, e.g. the environmental quality standards
One major difficulty in relation to balancing interests has been to estimate and forecast environmental values and convert them to monetary units. Balancing in relation to the environment most often includes values, which cannot be transformed to monetary units.27 Willingness to pay is a modern neo-classic economic method28 to put a price on environmental degradation.29 One difficulty in relation to monetary-based assessments is the obvious, not to say notorious, risk that essential needs (not least for future generations) are balanced against present benefits in general. This is often done in crude cost- benefit analysis.
The dilemma of valuing and understanding environmental values is not new, and problems and possibilities have been discussed by Daly, Odum, Jørgensen, Sciubba & Ulgiati, Rees, and Wackernagel, to name a few.30 Christensen has in his thesis discussed the precondition for legal control of the flow of natural resources, applied to phosphorus, a limited resource essential for everything living.31 His contribution brought thermodynamics into the environmental law methodology discourse. Based on this, Westerlund has suggested that exergy32 rather than money can be used as the common denominator (weight norm) in an enhanced technique for cost-benefit analyses in an environmental and sustainability context.
e.g. Jørgensen, supra note 30, at 48). This distinction does not affect the significance of the approach.
1.3 Summary
It is scientifically clear that basic theory of ecology and thermodynamics satis- factorily supports the view of Earth and its atmosphere as a giant system — the biosphere — with energy input essentially from the sun. Secondly, I consider Decleris’ statement to be theoretically indisputable, namely that there today is a need for an effective law, for a control system (whose purpose is to secure the natural basis for quantitative development — the survival of the ecosystems) and for the application of fundamental systemic principles for that control system. Thirdly, it must be added that, with virtually no significant exception, any international law or agreement can only be legally enforced against persons (including enterprises) if transformed (made legally operational) into national law.
The seemingly inevitable conclusion from this is that national law, due to the principles of state sovereignty, must be constructed to be the control system matching all ecosystems, which can be affected by actions and activities in each nation and by its citizens. A state has the control opportunity of its own territory and the ecosystems therein, and of its citizens’ conduct. Decentralisation as such, in whichever form, means a violation of systemic principles.
In a rule of law country, the substantive law constitutes a restriction upon the authorities as regards which restrictions and duties that may be imposed upon a person against her will. It also defines the limits of the person’s rights and obligations. So, generally speaking, no law is in the long run more effective than what follows from its substantive parts (about rights and obligations). The law is, however, normally not even as effective as its substantive part, since the substantive law — when not completely covering all persons’ actions and the intended environmental quality etc — must be implemented and/or enforced.
Here the inherent risk for deficits occurs. The theory underlying this study includes that such rules, which are directly addressed at persons (actor-related rules), can be the object of enforcement, whereas all other substantive law first is to be the object of implementation all the way until the implementation pro- cess has resulted in substantive rules which, because they are directly addressed at persons, qualify as objects of enforcement.33
Since sustainable development calls for ecological sustainability, ecological limits must be safeguarded by law, or they might eventually be violated. This safeguarding must result in adequate substantive law applicable and enforce- able against persons. This reflects the concept of legal operationalisation, and implies that the implementation must go on, step by step, until the process has resulted in such rules which meet two criteria:
(a) They can be enforced against persons.
(b) They are also, taken together, sufficient for the objective or sub-goal to be fully met.
The view now expressed outlines the theory framework within which I will take a closer look at the RMA.
2. THE RMA — AN OVERVIEW
2.1 Background
The Resource Management Act 1991 — “the RMA” — is probably still the most modern environmental code in the world. The fact that New Zealand, when enacting the RMA, also had made an administrative reform, where 12 water catchment areas also equalled the regional administrative division, underlines an environmental way of thinking.
The RMA was enacted in order “to restate and reform the law relating to the use of land, air, and water”.34 The lodestar for the RMA was the sustainable development paradigm, as stated in the 1987 WCED report.35 According to its “creator”, the RMA36 was “based on the principle of sustainability which drove the Rio Declaration”.37 Another aim was to meet international obligations.38 The driving force behind the RMA was furthermore to eliminate earlier law fragmentation and to create a comprehensive statute,39 with a common set of criteria and a coherent method for setting rules, including rules for planning, consent, etc. The aim was to create “a one-stop shop” and the enactment led to a great number of statutes being repealed.
2.2 How the RMA can be Understood — Structure and Content
The RMA has three key themes — sustainable management of natural and physical resources, integrated resource management, and control of adverse effects on the environment from activities. To an external observer this qualifies
the RMA as potentially comprehensive, regarding ecological sustainability as being beyond compromise, and aiming at development-oriented management within limits of sustainability. Based on this presumption, the methodology embedded in the RMA will now be characterised.
It is virtually a frame law constructed as to form a control system, but with a fundamental lack of goal-related substance. According to modern environ- mental law methodology this is a property of law that — at least in rule of law countries — almost certainly results in significant implementation deficits. We will come back to this later on.
The basic structure of the law is its 15 different parts, which in different ways support and guide each other (a good systemic approach). The core is the purpose of the act (Part II, s 5), which states:
“Purpose — (1) The purpose of this Act is to promote the sustainable manage- ment of natural and physical resources.”
Sustainable management, according to the following subsection, is defined as:
“(2) In this Act, ‘sustainable management’ means managing the use, develop- ment, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well being and for their health and safety while —
(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and(b) Safeguarding the life-supporting capacity of air, water, soil, and eco- systems; and
(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.”40
“Effect”, “environment”, and other terms and concepts are defined in a rather comprehensive list of interpretation and application (Part I). The term “envi- ronment” has wide scope, extending from ecosystems to social, economic, aesthetic, and cultural conditions (s 2).41 The same is the case for the meaning of “effect”, which unless the context requires otherwise, includes, in relation to natural and physical resources, any positive or adverse effect, any temporary or permanent effect, any past, present and future effect, any cumulative effect which arises over time or in combination with other effects. Effect also includes
potential effect of high probability and effect of low probability that has a high potential impact (s 3).
As for the exclusion of minerals: in an international comparison this is one of the most comprehensive and still clear rules on applicability, and also theoretically distinct, since it observes that use of minerals does not fit in.
A number of principles, which aim at limiting the overuse of particular resources, support the purpose of the Act.42 They point out the obligations for authorities to manage the use, development, and protection of natural and physical resources of national importance (s 6) and other matters regarding the efficient use of the environment (s 7).
The role of principles is critical when assessing to which degree a law includes substance. Are the principles substitutes for substantive rules, or guiding, or both?
The most prominent feature of the RMA is its comprehensive, interrelated system of policy statements, plans, and rules. This system is backed up by basic requirements (e.g. purpose of national and regional policy statements and purpose and contents of regional as well as district plans) and is guided by the purpose of the Act, i.e. sustainable management, in s 5. The law sets out a number of functions, powers, and duties for governments on national, regional, and district43 levels, that entail to prescribe national environmental stan- dards, national and regional policy statements, and to prepare plans including planning rules. Not all of these measures are, however, mandatory. Obligatory are national coastal policy statements, regional policy statements, regional coastal plans, and district plans. National policy statements and regional plans are not mandatory.
The planning system features an effective hierarchical structure. Statements, plans, and rules in plans on higher levels delimit and steer those on lower levels. Stricter environmental conditions can, however, be set on lower levels compared to those on higher levels. This is also an example of good systemic thinking. The law does not, however, state a time limit on when the statements shall be operative.44
The primary function of the planning system is to manage environmental effects rather than zoning as such (physical planning). Rules in plans are the only components within the planning system that have legal effect and hence are open to challenge on the grounds of unreasonableness. The rules set out how
the functions of the authorities are to be carried out and how the objectives and policies in the plan shall be achieved.45
There is no requirement in the law that “a rule restricting a particular activity (in this case, geothermal abstraction) must be made solely by reference to the effects of that specific activity. The Act provides for the possibility that wider effects may be taken into account in determining the status of an activity.”46 This implies the appropriateness of including indirect, cumulative, and synergistic effects and using the precautionary principle. Furthermore, stated functions, powers, and duties for governments at different levels allow for plans automatically to adapt to the prevailing environmental status/condition. But they are not required to do so. According to s 65(4) any person may request a regional council to prepare or change a regional plan.
Plans constitute the basis when examining an application for consent since all activities must comply with rules in a plan. Activities in plans are defined as (s 77B): Permitted activities, which need no resource consent. Controlled activities, which are permitted but need a resource consent with or without conditions according to the plan. Restricted discretionary activities need resource consent, and if such an activity is declined or imposed with conditions, this must relate to matters in the plan. Discretionary activities, which need resource consent (with or without conditions) and must comply with the standards, terms, or conditions in the plan. Non-complying activities, which need resource consent (with or without conditions).47 Finally, it contains prohibited activities, which are downright prohibited. Together with rules in a plan, this classification of activities states the basic prerequisites for any kind of activity within a plan.
Regulations for procedures granting resource consent include assessments of environmental effects (“AEE”),48 public notice, objections, appeals, duration, transfer, and other matters regarding consents. All these are procedural law. Resource consent49 embraces five types: land-use consent, subdivision consent, coastal permit, water permit, and discharge permit (s 87). Consents generally relate to the effect(s) of an activity rather than to the activity itself. This is, of course, why the RMA is characterised as effect-oriented law.
In the RMA there is a series of duties and restrictions (Part III), of fundamental importance to the operation of the law, that relate to different
Handbook of Environmental Law, supra note 44, at 69.
uses. These outline what kinds of activities may require consent and under what circumstances (ss 9, and 11–15C). There are restrictions on all land use (including subdivision) and water use (including coastal marine areas). Depending on the application in question, an application for an activity is granted by regional, district, or city council.
The RMA also includes means to place a restriction or a cessation on an activity, both if it otherwise is lawful, and whether or not a plan is in place (s 17). These restrictions are also applicable to existing lawful uses, which other- wise are protected as existing allowed and lawful activities (ss 10 & 20).50 Additional procedural rules (Part VIII) may be issued by means of designation (e.g. distributing electricity, heat, water, and gas), heritage orders (protecting places of special interest), and coastal tendering (determining allocation of coastal permits), water conservation orders (preserving certain water bodies with outstanding values), and rules for subdivision and reclamations (limiting negative impact such as decreasing of wetlands). These rules all influence consent issues.
Furthermore, the RMA contains rules relating to an Environment Court, such as constitution and powers, hearings, and appeals (Part XI). Certain action mechanisms are defined to be used to enforce the Act (Part XII). This makes it possible, for example, for a judge to clarify definitions, classifications, etc, and for the Environment Court to require a person to cease, or prohibit a person from commencing, an activity, even if it is allowed by consent or a plan. The RMA also includes duties and powers of the Hazards Control Commission, which is to assist in the control of hazardous substances and new organisms (Part XIII). The final two parts (Parts XIV & XV) deal with transition provisions.
2.3 Summary
The RMA is a comprehensive and in many respects coherent regime for environmental issues. It takes a holistic approach to the management of natural and physical resources. The Act has most of the necessary components to be proactive — i.e. to foresee and possibly prevent the upcoming of negative effects, as contrary to tackling such problems after they have occurred (reactive function). But the lack of goal-related substance, especially in combination with the fact that some critical components are not obligatory (such as national policy statements) opens up the possibility of significant implementation deficits. This will be examined in the concluding part of this article.
Much of the substantive rule-making in the RMA is delegated to the regional and district level through power given to the authorities within the planning system and in particular the rule-making. It is hence clear that the potential
exists to make sustainable management legally operational. However, the RMA has faced critique both from those who represent aggressive development, and those who regard the RMA as insufficient for moving towards sustainable management. In the following I will look more closely at this piece of law in relation to the prerequisites for reaching a sustainable legal order, or law of sus- tainable development. I will do this with respect to theory of environmental law methodology.
3. THE RMA AND THE LAW OF SUSTAINABLE MANAGEMENT
3.1 The Need for an Effective and Efficient Law
Independent of how we turn and twist the concept of sustainable development, the best way to understand it and to provide a consistent insight about its core is to apply a systemic approach.51 In modern environmental science and in the upcoming science of sustainable development, a systemic approach — and hence basic knowledge about systems theory — are essential. Decleris’ approach, relating the legal system and its sustainable function to systems theory, seems therefore logical.52 This is also why this article has a systemic approach rather than an analytic one.53
Before assessing the RMA more closely in relation to a sustainable legal order54 and law of sustainable development,55 discussed in the beginning of this
article, two things must be made clear. That the goal of sustainable development was adopted by the international community through the 1992 Rio Conference is a fact. Furthermore, Agenda 21 can be regarded as the “blueprint” for how to implement the Rio Declaration, and law has there been pointed out as having a major role.
The Rio Declaration was based on the 1987 WCED report. So was the RMA, as is reflected in its s 5. This must mean that the overarching goal for the New Zealand environmental policy is sustainable development, and that the RMA is to be a control system for its implementation through sustainable management of natural and physical resources. Sustainable development is not business as usual. Political and administrative reforms are needed in order for societies to meet the request for, as Decleris puts it, “an effective state and for effective law”.56 New Zealand has no doubt taken a step in that direction when enacting the RMA.
When assessing an instrument it is important to keep in mind that any such thing, be it a hammer, a calculator, or a piece of legislation, can very well be appropriate for its purpose. But if a hammer is used as a screwdriver, a cal- culator as a spellchecker, or an environmental law as the basis for unlimited local or regional policy for crude exploitation, problems will arise, and the instrument will often be blamed. If, however, a law is constructed on the premise that it is the will or courage of the government and/or councils to implement sustainable management of resources, problems can also easily arise. When that is the case, the law did not implement sustainable management, it only made implementation possible by providing the legal basis and instruments.
The biosphere serves as an enormous commons for sustaining billions of people for innumerable generations to come. However, not even today, almost four decades after Hardin’s The Tragedy of the Commons, has mankind been able to legislate temperance to such an extent that sustainability is secured. In the light of this, the RMA is in many ways excellent. But can it pass a sustain- ability security test?
From a sustainable development perspective, the RMA contains a number of problematic attitudes and components. This includes good faith in the political will.57 This is reflected in the strategy of devolution (that is, the surrender of powers to local government, as opposed to decentralisation which means the
dispersion or distribution of functions and powers from a central authority to regional and local authorities). It is also reflected in the belief in process rather than adequate substantive standards, and in the seeming underestimating of the driving forces of economic growth and exploitation.58
When taking a hard look at the RMA, the planning system is the first stop, followed by substantive and procedural rules and the concept of sustainable management. At times I will refer to Swedish law — not as a good example, but because Sweden once in the 1960s and 1970s had a predominant position in relation to planning, and invested much in the protection of the environment,
e.g. in environmental laws. That is not the case any more and Sweden now moves in the opposite direction: ideas of hierarchical planning are abandoned; environmental quality standards are not favoured; national responsibility for a powerful environmental policy is not taken except for non-binding policy statements.
When the Environmental Protection Act came into effect in 1969, Sweden was in a favoured situation since she had not participated actively in World War II and was a relatively rich country. Industry enjoyed good times and was considered able to afford abatement measures (and the state also gave some subsidies). Today, the environmental code is insufficient for managing numerous environmental problems like biodiversity, coastal water quality (there is no law on coastal zone management), groundwater quality, etc.
3.2 The RMA Planning System
Central for environmental law methodology theory is that planning is essential for any sustainable management and implementation of environment-related goals and standards. The RMA is evolving around a comprehensive planning system, which underlines its systemic principles. The planning system forms a congruent structure of environmental policies, statements and plans, that fit into a systemic top-down hierarchy of administrative (and implementation) levels
Even if the planning system as a structure is well matched to the systemic theory, it has its drawbacks. The function of the planning system is dependent on optional initiatives and actions, and designed to extend the influence of the
decision-makers (foremost at lower levels). This kind of system is vulnerable, to say the least. Problematic, for example, is that the executive at a national level may from time to time make national environmental standards (s 43), and that regional councils may prepare policies and plans (s 65). If this is not done, no legal operationalisation starts. Instead, subsystems (regions or districts) are then left to control impact on what is actually larger systems. Not even a catchment is ecologically a secluded region.
Any absence of above-mentioned decisions which may be taken means that the bottom line for responsibility for achieving the purpose of the RMA is restricted to the functions of regional and district authorities, consent author- ities, and the Environment Court.60 Contrary to higher levels, there shall, at all times, be a district plan. The inclusion of effect-based plan rules is optional (s 76). District plans relate to the principal functions on local level and are hence to control the effects of land use, subdivision of land, noise, and actual and potential effects of activities in relation to the surface of water in rivers and lakes (s 31). This responsibility is left to the discretion of consent author- ities and the Environment Court, when they issue permits or deny consents, although in principle within the purpose of the Act. With such a system the risk is great, or rather highly probable, that the sum of every district plan and all given consents will end up not meeting, or worse being contradictory to, what sustainable management of resources requires. Because with such a system the basic problems related to the tragedy of the commons are not managed.
So far (2006) no national environmental statements have been set to my knowledge, except for national coastal policy statements,61 which, along with regional coastal plans, are obligatory.62 (Those statements are, by the way, rather vague.) Furthermore, stipulating mandatory regional coastal plans but not mandatory regional plans is also inconsistent with a systemic approach.63
I consider it to be a notorious fact that relying on voluntary action tends to fail, particularly when relating to protecting the environment. Furthermore, if the economic filter does not function well, the legal filter and safety net is not stronger than the substantive law, as mentioned earlier.64 This calls for an especially hard look at which substantive law really applies to physical conduct affecting the environment. The prevailing situation in New Zealand, as it has been described to me, has also led to a crippled functional structure in practice.65
There seems hence to be conflicting and/or inconsistent environmental goals, standards, strategies, etc due to incoherent political governance.66
According to Ericksen et al the driving forces behind the RMA and the planning system were a political will favouring devolution coupled with the competitive principles of free-market liberalism.67 If so, the driving forces were not only incompatible with sustainable development in the Rio Declaration meaning, but also with elementary systemic thinking. Interestingly enough, the RMA does not give full evidence to the statement about the driving forces. Actually, such driving forces are more easily detected behind the Swedish degradation of environmental legal control. Regardless of what basic ideas influenced the construction of the planning system, the inherently logical system seemingly has strong drawbacks from sustainability points of view.68 It now runs an obvious risk of unsustainable management of resources.
If we take a look at Sweden, national physical planning as it was discussed in the late 1960s has bearings on the RMA idea, even if Sweden aimed at an exploitative planning and not an environmental one.69 The original idea was to have the same kind of hierarchical rolling planning system as now in the RMA, where national interests were to be defined and limiting. However, this thinking was short-circuited by a strong political urge for devolution and possibilities for the communities to make binding land-use plans on their own. This was, however, turned down due to the constitution not allowing that much power to the communities. The conditions for this hierarchical planning system were, however, later totally exterminated by the Planning and Building Act (1987 and still in effect). Comprehensive municipal plans of today have no binding effect. Furthermore, there is no regional planning, although such planning may be performed according to the law. There are no legally binding national statements. The Swedish planning system has since long faced problems, much because physical planning can not implement sustainable development, only control the built environment, and because it is governed within virtually a municipal monopoly.70
If sustainable management is the very purpose of planning, planning must recognise the complexity and non-linearity of ecosystems. Even if the RMA
planning system is flexible, and plans with rules can be renewed, this is not automatically triggered by an unacceptable situation in the environment. This means no feedback in the system.
3.3 Substantive and Procedural Rules
The planning system in the RMA plays a vital role in many respects, not least to the extent that substantive rules surface here; that is if rules (and adequate rules at that) are included in plans.
The RMA is essentially a gigantic frame law. This typically implies a low precision and general goals and guidelines.71 The RMA lays down the over- riding purpose and principles (Part II), and the main contribution of Parliament is stating matters in order to achieve sustainable management (e.g. Part III). However, if this is not done properly, chains of legal operationalisation are weakened, not to say broken, already in the beginning. The implementation of sustainability hence depends on courts and subordinate legislation.72 The purpose of the Act is designed to be specified and filled out through authority regulation/ordinance, resulting e.g. in plan rules (as discussed above). No person may act contrary to a rule in a plan or without prescribed consent.
For the understanding of environmental laws as policy instruments, the distinction between formal and substantive rules is essential. Formal rules apply to methods of enforcement and rules of procedure.73 They relate to what formally has to be fulfilled — e.g. the obligation to notify the public, to organ- ise hearings, or prescribing functions and powers, etc. Substantive rules define rights and obligations as regards physical conduct, etc. They regulate how to act or behave in relation to, inter alia, effects in the environment.
Formal rules seem, along with devolution (or decentralisation), public participation, and deregulation, to be long favoured when allegedly implement- ing environmental goals. The RMA is no exception.74 It has delegated much legislative power to regional councils and district authorities to be exercised within the planning system (as shown above). Regarding case-by-case allocation of resource consents, the RMA depends on the processes of consent authorities. The Environment Court has a vital role, since it is to uphold the basic principles
in case-by-case decision-making and thereby interpret and clarify definitions and classifications, etc.75 Prescribing substantive rules lies hence primarily outside the RMA and is to be carried out through a decentralised delegated process.76
Now we reach a critical issue regarding the RMA. According to long- established theory in environmental law, also sustained in environmental law methodology and theory of adaptive environmental planning, the combination of on the one hand generally applicable minimum substantive standards on precaution and the use of Best Available Technology (and similar requirements), and on the other hand environmental limit standards, results in a more efficient management of resources than any system which features either only precautionary standards (still generally the Swedish approach) or only environmental limits (inter alia, a previous Soviet approach). EC law jargon names the combination as the dual or parallel approach. The relative success of the US Clean Air Act Amendments 1970 was a result of such combination together with a strong system for legal operationalisation of centrally defined binding quality standards.
The RMA as such is virtually devoid of explicit substantive law.77 Instead, the construction as such suggests that the purpose of the Act, effect mitigation plus top-down control by means of national statements, should safeguard sustainability. Within, but not outside, this framework, lower planning levels take over the decisions but seemingly without having to require maximum economising with the environmental resources, including recipient capacities. This is, in turn, under the auspices of a court system that, however, is alerted only when a case comes there.
This would function, provided certain criteria were met. Firstly, environ- mental limits reflecting sustainability goals and sub-goals (like environmental quality standards, biodiversity criteria, etc.) Secondly, a general requirement on temperance expressed as (for professional activities) Best Available Technology (and equivalent ambitions for other activities).
Here the RMA stands out as different, methodologically, in relation to the mainstream in modern environmental law. It seems from court practice that
conditions to mitigate effects are included in resource consents or permits. However, the RMA does not include — as observable to a foreign observer
— any baseline substantive standard on, for example, environmental non- degradation. And even if it had, it is difficult to see how non-degradation can be judged without theory and principles related to non-linearity. The only safe, although crude, method for this (as long as binding national statements and a multitude of environmental quality standards are not issued) would then be a zero-impact standard, and there is none.
This reasoning raises the question whether s 5, and the application of the concept of sustainable development, outbalances this possible weakness. The related question is whether the RMA’s application to sustainable resource management has anything to do with the sustainability of the RMA.
3.4 Sustainable Management
A number of problematic factors can be chiselled out, which also are reflected in the handling of the RMA.
As regards confusion between goals and means, one must observe the distinction between sustainable development and sustainable management. In the RMA, the concept of sustainable development has not been modified and narrowed down as compared with the Rio Declaration. However, the RMA aims at sustainable management (s 5). In this way the RMA seemingly has, with the rather wide and all-embracing concept of sustainable development as its point of departure, been made a means for such development. The RMA applies to resource management, but it seems to regulate such management with respect to, inter alia, sustainability of ecosystems. It is by means of a sustainable management that social and economic considerations shall be recognised.82
Section 5, expressing the very purpose of the RMA and the meaning of sustainable management, has been subject to debate ever since the RMA was enacted in 1991. It has been held to be vague and unclear due to the word “while”, which has been taken as a basis for interpreting the purpose in line with weak sustainability. The discussions seem to have undulated around how to balance the three parts — environmental, social, and economic aspects — all covered in s 5.83
Initially, there also seemed to be a consensus — within the courts, politically, and scientifically — that s 5 reflects strong sustainability, and consequently that the resource base had priority over social and economic factors. Such a view is easy to sustain scientifically, since the well-being of future generations depends on the environment and the resource base that is available to them.
There is, however, a wording in s 5, “to meet foreseeable needs of future generations”, that is somewhat cloudy. It has been interpreted as intended “to place some limit on the extent to which consideration of the needs of future generations will be required. That limit will be based on a reasonable assessment of the anticipated needs of future generations for natural and physical resources having regard to the current state of knowledge and projected
284. It may very well be that Ericksen et al have observed that the RMA in practice has not resulted in sustainability limits and therefore conclude that management might weaken sustainable development. And it is true that unlimited “management” is unsustainable. But limited management, the limits related to sustainability, is of course not.
future requirements. There is no reason why this should not include prudent provision for unforeseen factors and the importance of retaining options for future generations.”84 Since s 5 does not say that the needs of future generations are only relative, it seems to a foreign observer as if part of the debate about s 5 reflects a touch of existential angst, not to say denial, hence promoting the idea of weak sustainability.
Since the RMA contains no really explicit guiding principle, such as the pre- cautionary principle or even a principle of non-degradation, its interpretation can be arbitrary, because it is a fact that we can not anticipate in any detail the needs of one generation ahead, let alone of generations to come. That is, if we require defined needs. If, on the other hand, we apply precautionary thinking and thermodynamics we easily arrive at the same kind of thinking that is expressed in concepts like carrying capacity, etc.
However, the 2003 amendment of the RMA s 32 “Consideration of alter- natives, benefits, and costs” (4)(b) states that an evaluation relating to plans and statements “must take into account the risk of acting or not acting if there is uncertain or insufficient information about the matter of the policies, rules, or other methods”. This has been understood as introducing the precautionary principle into the RMA for the first time.85
It seems as if the three-legged stool metaphor has grown stronger over the years, making room for other ways of reasoning, implying, inter alia, that economic factors could very well be allowed to outbalance the environment.86 However, if such outbalancing also jeopardises future generations’ possibilities to satisfy their needs, then the metaphor has fooled its proponents into un- sustainability.
It is obvious that s 5 is understood in various ways. It follows that a critical communicative link between legislators and practitioners, including courts, is partly unfunctional. Furthermore, the RMA does not have a set of subsidiary, explicit minimum substantive standards which compensate for this linkage problem. The RMA does not even state that the environment must not be degraded (any more) and it does not call for a 100 per cent mitigation. Countries in general do not apply non-degradation87 but do on the other hand include in the law itself a number of substantive standards and principles with a higher degree
of objectivisation88 than s 5 alone. Normally, however, they lack equivalents to s 5.89
Furthermore, it is to a foreign observer difficult to find any theoretically based legal technique for handling the problem of non-linearity. Two possible simple methods come easily to mind. Either there are limits related to the environment and to the resources, which when exceeded trigger a review and strengthening of the relevant plans. This is one way to cope with non- linearity and calls for feedback in the system. Or case-by-case examinations (or equivalent decisions in plans) are based on environmental assessments which can accurately predict the non-linear consequences from an additional environmental impact — and such a technique is not available, at least not at a reasonable cost.
4. CONCLUSION
Realising the problem within the RMA itself came first as a surprise, but when confronted with theory of environmental law methodology and tested against the theory of adaptive environmental planning this problem stands out very clearly. It seems quite clear that the role of courts therefore must be put to the test.
Does the purpose of the Act as laid down in s 5, in the hands of an environ- mental court system, in combination with specifics in the New Zealand legal culture, somehow fulfil sustainable functions? Decleris, for example, puts forward the role of courts in implementing sustainable development. However, he also states that “principles of sustainable development cannot be procedural but must be substantive, because only then can they lead in a particular direction”.90 Since this article deals with the RMA as a piece of legislation featuring modern, not to say unorthodox, methodology, the actual application
of this law, with the very interesting and stimulating court practice, has not been studied in detail. One reason for this is the following.
In a rule of law state the law itself is to steer, and also limit, any restriction on persons and property. It is not contrary to the rule of law that a nation decides to avoid future ecological disasters. On the contrary, virtually nobody would claim that the rule of law must promote unsustainability. Decleris claims that sustainable development is already included in the rule of law. This calls for appropriate, well-functioning law. Such law is the first component in modern environmental control. The better and clearer the law, the easier for the loyal citizens, politicians, planners and judges to apply it according to what the legislators aimed at.
In an RMA context it has been said that it is the courts that decide what is the law.91 However, environmental issues, including intergenerational rights to resources, the maintaining of which is so very difficult because of ecosystems being non-linear, nature reacting as it does, and the law of entropy, are unpre- cedented in law and legal science. The New Zealand system implies that wherever the legislators have left a blank, a court shall take over and participate in the development of environmental control for sustainable development in the blanked respect. Since there are differing opinions about s 5, also the very basics are partly blank.
The role of judges in Sweden has recently been criticised as regards sustainable development.92 The cause was traced back to the Swedish legal education, which is totally irrelevant to environmental understanding. This is, it is argued, in turn going back to old paradigms in the Swedish legal science. Reading about New Zealand court practice,93 it is quite clear that judicial reasoning concerning the RMA sits on a much higher intellectual level than what, for example, most Swedish judges would be able to deliver, considering their education and training. But this article studies the RMA from an environmental law methodology perspective and with respect to many countries’ need for sophisticated and still robust environmental law that safeguards sustainability. And it is an unavoidable conclusion that the RMA, lacking certain basic components, makes the judiciary not only guardians of legality but also ultimately responsible for New Zealand’s environment and sustainability. This task they are to fulfil based on which cases happen to come before them. This contrasts against the general need for proactivity, which is central in environmental control for sustainability.
A court-developed law of sustainable development also includes a hazard
that would make any scientist shiver. Ecology and thermodynamics are ex- tremely complicated areas. In legal systems, where courts develop practice, there is an inherent risk that one court once comes out wrong, and still its judg- ment is considered as part of the law. From that judgment on, the law in this respect will deviate from sustainability. In natural science, new analyses rather easily overturn previous theory. Judicial systems tend to be much slower at correcting themselves. This is a relevant comparison since the question whether something is sustainable or not in the end will be verified or falsified in the harsh light of physical and ecological reality.
A hierarchic planning system where the national level laid down all goals and limits — binding — which are necessary or suitable for maintaining sustainability, would to a high degree compensate for this drawback, thereby increasing the quality of the environmental control system drastically. In such a system, courts (provided adequate legal principles and theory) would be essential because they would, and could, then be guardians of sustainable development and not merely repair mechanics.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2007/7.html