INTERNATIONAL ENVIRONMENTAL LAW

I. Introduction

In  2011,  New  Zealand  successfully sought  changes to  the  land  use, land use change and forestry (LULUCF)  rules in Durban,  acceded to the Statute  of  the  International   Renewable  Energy  Agency,1  and chaired the inaugural Ministerial Summit of the Global Research Alliance on Agricultural Greenhouse Gases. The New Zealand–Hong Kong, China Environment Cooperation  Agreement  also  entered  into  force.  Among regional  developments,  New  Zealand  funded  renewable energy projects in the Pacific Islands, hosted  the Pacific Islands Forum  2011  and  made progress in linking New Zealand and Australia’s emissions trading schemes. National developments included new emissions projections and the review of the New Zealand Emissions Trading Scheme (NZETS), which, inter alia, recommended that the scheme’s implementation be slowed. The Afforestation Schemes Review Panel also released its report in 2011, generally concluding that pre-existing afforestation schemes still have a place despite the advent of the NZETS. There were changes to the Environmental Protection Authority, which is now a Crown Agent and has taken over functions relating to New Zealand’s obligations under several international environmental conventions. A bill proposing governance of New Zealand’s Exclusive Economic Zone was also introduced in 2011, a National Policy Statement on Renewable Electricity took effect, and there was case law about whether the Basel Convention2 was breached by the New Zealand Ministry of Economic Development granting export permits where domestic capacity to recycle used lead-acid batteries exceeded supply.

II. International Developments

A. Climate Change

1.  Durban
In late 2011, New Zealand participated in the Seventeenth Conference of the Parties (COP-17)  to the United Nations Framework Convention  on Climate Change3   and the Seventh Meeting of the Parties (CMP-7)  to the Kyoto Protocol4  in Durban.  New Zealander Dr Adrian Macey performed a significant role as Chair of the Kyoto Protocol and New Zealand Minister Tim Groser was appointed to lead the focus on mitigation.5   New Zealand was successful with almost6  all of its LULUCF  goals. Chiefly, the forestry accounting rules which make accounting for forest management of pre-1990 forests mandatory in the second commitment  period, based on a reference level approach (which is based on a “business as usual” projection for New Zealand); the ability to count carbon stored in wood product reflecting the “emissions to atmosphere” approach that New Zealand sought (previously the carbon stock of trees had been treated as being instantly oxidised upon felling, rather than at the end of a wood product’s life); and the ability to establish equivalent pre-1990 forest providing that the new forest is equal or greater in area and carbon stock (flexible land use). New Zealand welcomed the  Durban  outcomes,  particularly  the  Durban  Platform  for  Enhanced Action, the agreement on market mechanisms, the agreement on key rules for greenhouse gas (GHG)  reporting and accounting, the set up of a process leading to a technical work programme on agriculture, the biennial reporting guidelines, international  assessment procedures, and the agreed process to clarify the Cancun mitigation pledges to help comparability (where a New Zealand template was the starting point for discussions).7 New Zealand has yet to decide whether to position itself with Europe and support post-2012 commitments  within the Kyoto framework, or join the group that includes the United States, Canada, Japan and Russia, which advocates making commitments within an alternative framework.8

2.  Global Research Alliance
New Zealand provides the light management of the Global Research Alliance on Agricultural Greenhouse Gases (the Alliance). In June 2011, New Zealand Minister Tim Groser chaired the inaugural Ministerial Summit of the Alliance, which took place in Rome, Italy. Thirty-one countries, including New Zealand, signed the governing document;  the Alliance Charter.  The Alliance aims to foster global networks, and research and development among agricultural scientists, particularly regarding croplands, livestock and paddy rice, in order to find ways of producing food with fewer emissions.9

B. Renewable Energy
On  1 April, New Zealand acceded to the Statute of the International Renewable Energy Agency. This establishes the  International  Renewable Energy Agency, which aims to promote increased adoption  and use of renewable energy by facilitating access to renewable energy information and the exchange of knowledge and technology.10  New Zealand became a full member on 1 May.

C. Bilateral Environmental Cooperation Agreements
On 1 January, the New Zealand-Hong Kong, China Environment Cooperation  Agreement  entered  into  force to  “encourage  and  promote sound environmental policies and practices and improve the capacities and capabilities of the Parties in addressing environmental matters”.11

III. Regional Developments

The New Zealand government seeks the creation of a trans-Tasman carbon market with aligned approaches to pricing carbon pollution.12  In June, the Australia–New Zealand Carbon Pricing Officials Group was established to work on arrangements for linking New Zealand and Australia’s emissions trading schemes, which could occur as early as 2015 when the flexible pricing period of Australia’s carbon pricing mechanism begins.13

In September, New Zealand hosted the 2011 Pacific Islands Forum, which led to the Waiheke Declaration on Sustainable Economic Development and the Joint Statement of Pacific Islands Forum Leaders and the Secretary General of the United Nations.14  Leaders pledged to address assorted fisheries and oceans management issues and called for strong outcomes on the conservation and sustainable management of Pacific marine ecosystems at the Rio+20 conference. They also committed  to renewable energy, and emphasised the need for an ambitious reduction of GHGs  and adaptation finance to enable the survival and viability of Pacific small island developing states.15

As part of its 2010-2012  commitment  to climate change fast-start financing, in 2011  New Zealand announced  it would fund  construction of a solar power plant in Tonga and three renewable energy mini-grids on Tokelau, which, when combined, will cost over NZ $15 million.16

IV. National Developments

A. Climate Change
1.	Emissions Projections
Overall “New Zealand is on track to comfortably meet its Kyoto Protocol obligations”,17  although this is largely because “New Zealand still has enough … forested land to offset the targets set at Kyoto for the initial reporting period of 2008-2012”.18 The net position forecast in April 2011 projected a 21.9 million unit surplus for the first commitment period, up from the 2010 projection of an 11.4 million unit surplus.19 This increase has been attributed to lower projected emissions from agriculture,20  and increased projected removals from forestry.21 While in April 2011 the worth of the projected 21.9 million unit surplus was NZ $442 million, by December 2011 the worth of the slightly revised projection of a 21.6 million unit surplus had fallen to NZ $183 million due to a significant drop in carbon prices.22 New Zealand’s Greenhouse Gas Inventory 1990-2009: Environmental Snapshot23  was also released in 2011.

2.  The New Zealand Emissions Trading Scheme (NZETS)
A 2011 OECD  report described the New Zealand Emissions Trading Scheme (NZETS)  as “the  most  developed”  scheme outside  the  European Union (EU), and “more comprehensive than any other trading schemes, with a full coverage of gases”.24 The New Zealand Minister for Climate Change Issues has also credited the NZETS  with bringing about a shift from deforestation to afforestation.25  Critics, however, tend to suggest that it is too generous to industry. The NZETS will require a wide range of sectors (not all sectors have yet entered the scheme) to monitor their emissions and surrender emission units to match them. Forestry was the first to enter, although participation is not compulsory for post-1989 forest owners.26 Forestry was followed by the liquid fossil fuels (LFF), stationary energy (SE) and industrial processes (IP) sectors, although the LFF, SE and IP sectors do not yet have full obligations. If the current timetable endures, the synthetic greenhouse gases (SGG) and waste sectors will acquire full obligations in 2013 and the agricultural sector in 2015. For more background on the NZETS please see previous contribution.27

Although the agricultural, SGG and waste sectors are not yet obliged to surrender units for emissions, voluntary reporting of emissions for these sectors was introduced on 1 January 2011. Also in 2011: certified emission reduction units (CERs) from hydrofluorocarbon-23 (HFC-23) and nitrous oxide (N2O) industrial gas destruction projects were banned from the NZETS,28  certain agricultural and other  activities were exempted from NZETS  coverage,29 and a new carbon assessment method  was set out for registered post-1989 forest land  (the  “field  measurement  approach”  through  which post-1989 forest participants directly measure the amount of carbon stored in their trees).30 Other regulations promulgated in 2011 prescribed additional eligible industrial activities and their emissions intensity, their products and their allocative baselines;31  provided  for the  calculation of removals in  regard to the embedding activity of exporting LPG;32  and adjusted the emissions factors for mining or purchasing natural gas, specified emissions calculation methods for underground coal gasification and combusting industrial waste, and adjusted information collection and emissions calculation requirements for activities such as combusting used oil, waste oil, used tyres, or waste for the purpose of generating industrial heat or electricity.33

3.  The New Zealand Emissions Trading Scheme (NZETS) Review
In February 2011, the Emissions Trading Scheme Review Panel (ETSRP) began to consider how the NZETS should evolve, in particular, whether the LFF, SE and IP sectors should be scaled up to 100 per cent obligation, with no price cap, at the end of 2012, as is the status quo. The ETSRP released its report in September. The government is currently considering the report and plans to introduce an ETS Amendment Bill in 2012.34

It will be recalled from previous contributions  that a transition phase is in place until the end of 2012. This features a one‐for‐two/ half obligation (currently the LFF, SE and IP sectors only need to surrender one emissions unit for every two tonnes of emissions), a price cap (an option to buy New Zealand Units (NZUs) from the government for a fixed price, which restricts potential costs to the emitter), and export restrictions (only NZUs from the forestry sector can be exported/ sold in international carbon markets).35  Over a longer period, free allocations of NZUs are available for businesses carrying out emissions‐intensive, trade‐exposed activities (including agriculture when it joins the NZETS).36

The ETSRP recommended that the scheme’s implementation  be slowed, which  would  “soften  an already soft entry  into  carbon  pricing  through emissions trading”.37 It is worth noting that the Parliamentary Commissioner for the Environment (PCE) made a submission to the ETSRP recommending that both the price cap and the one‐for‐two deal should end on 31 December 2012 as currently scheduled, because non-expiration  would widen the gap between  international   commitments   and  likely future  emissions.38   The ETSRP, however, recommended that the half obligation for the LFF, SE and IP sectors should no longer end in 2012 but instead phase out over three years so that the full obligation does not begin until 2015.39  This would make the scheme less costly for participants. The ETSRP recommended continuing the price cap beyond 2012, and increasing it by NZ $5 per annum, starting at NZ $30 per NZU in 2013, until it reaches NZ $50 per NZU in 2017,40  and that the next NZETS review should consider whether a price cap is needed beyond 2017.41  The ETSRP recommended that the sectors yet to be included in the NZETS should largely enter as scheduled, although it took the view that the waste, agriculture, and SGG sectors should not be required to go straight into a full obligation upon joining the scheme.42  The ETSRP also recommended that a price cap should be available to all new sectors entering the scheme after 2012.43   The following table from the ETSRP report44  summarises the proposed surrender obligations for the different sectors:

Recommended levels of surrender obligation for different sectors

Sector | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | 2019
Stationary energy, industrial processes, and liquid fossil fuels sectors | 50% | 67% | 83% | 100% | 100% | 100% | 100% | 100%
Waste and synthetic greenhouse gases sectors | – | 67% | 83% | 100% | 100% | 100% | 100% | 100%
Agriculture sector | – | – | – | 50% | 50% | 67% | 83% | 100%

The ETSRP recommended that “[t]he ban on NZU  exports from non‐forestry sectors … be removed when the price cap is removed”, unless the price cap is significantly above the international  carbon  price in which case the ban should be removed sooner.45  In terms of the free allocation of NZUs, the ETSRP recommended that existing allocation thresholds of 90 per cent allocation for highly emitting  activities and 60 per cent for moderately emitting activities be maintained.46 As for the phase-out rate for free allocation of NZUs, the ETSRP recommended that the 1.3 per cent per annum phase-out rate for industry and agriculture should be on a straight line basis, rather than the existing asymptotic basis whereby it might neverphase out to zero.47

Among  other  significant recommendations,  the  ETSRP  agreed with submitters who argued that the international  accounting rules in place at the time reduced incentives for planting  new forest and created land-use flexibility restrictions  which  were  unnecessary.48   The  ETSRP  therefore recommended that the government change the NZETS forestry accounting rules in line with its international  negotiating position on forestry (which ETSRP endorsed).49  This would mean introducing offsetting50  for pre-1990 forests, and introducing  liability reduction  measures including averaging51 for forests planted after 1989. If offset planting is introduced,  the ETSRP recommended the introduction of a claw‐back provision for the second tranche of the pre‐1990 forestry allocation.52  The ETSRP further recommended, in relation to post-1989 forests, that if agreement is reached internationally on retained carbon in harvested wood products, the NZETS should be modified to reflect such an approach.53   The ETSRP suggested that the government consider introducing  a self-insurance pool  of units  for post-1989  forests similar to that proposed in Australia; 5 per cent retention, to assist in the case of catastrophic events.54  The ETSRP also recommended that the tree weed exemption (pre‐1990 forests) should be available beyond 2012.55  Finally, the ETSRP recommended review of the forest ownership associated persons’ test rules.56

In regard to other sectors, the ETSRP proposed the introduction  of a power of exemption for small landfill sites.57  For SGG other than Sulphur Hexaflouride (SF6), the ETSRP recommended introducing certain levies and a prohibition  on knowingly releasing SGG into the atmosphere.58   For SF6, the ETSRP opined that the point of obligation in electrical switchgear should be on users rather than importers and should be based on estimates of actual emissions.59   The ETSRP  recommended  urgent  government  consideration of whether  Hydrofluorocarbons  (HFC)  CERs should  be banned  beyond 2012, due to fears that if the NZETS  does not follow the EU (which has decided to ban HFC CERs from its ETS), the New Zealand carbon market could be flooded. This would drive down the NZU  price and threaten the reputation and integrity of the NZETS.60 As previously mentioned, following the ETSRP’s report, the government did in fact ban CERs from HFC-23 and 61 N2O  industrial gas destruction projects from the NZETS. In general this will mean that NZETS participants will not be able to surrender those units to meet their obligations. There is an exception to the ban for New Zealand firms that already have forward contracts.

The ETSRP rejected arguments that agriculture should not enter the NZETS in 2015 due to insufficient abatement opportunities.62  After considering equity with other New Zealand industries and international targets, and the fact that nearly half of New Zealand’s GHG emissions come from agriculture, the ETSRP saw both short-term and long-term benefits to including agriculture as currently timetabled. However, they did recommend changes to the point of obligation; currently this is at the processor level, but the ETSRP recommended that it should be at the farmer level.63 In addition, as can be seen in the table, the ETSRP recommended a half obligation for agriculture for two years after entering the NZETS,  phasing out over three subsequent years. When combined with the free allocation of NZUs,  this would mean the agricultural sector’s obligation equates to only 5 per cent of biological emissions for the first two years after entry.64

A. Forestry Review
The Afforestation Schemes Review Panel (ASRP) completed its work in 2011. The ASRP assessed whether afforestation schemes predating the NZETS are still necessary given that  the NZETS  also encourages new planting. The ASRP recommended that the Permanent  Forest Sink Initiative (PFSI) continue  with  some  improvements.65    The  PFSI  generates internationally tradable emission units that are similar to, but distinct from, the NZETS and encourages permanent forest establishment on previously unforested land.66  In regard to the Afforestation Grant Scheme (AGS), which offers afforestation grants for previously unforested or “Kyoto  compliant”  land and provides landowners of small forests with a simpler and cheaper alternative to joining the  NZETS,  the  ASRP recommended  continuation  beyond  the  planned termination  date of 2013. However, rather than have the AGS continue on the same basis, the ASRP recommended continuation as a new scheme where environmental services are separated.67 The ETSRP (see previous section) also saw a continued place for the AGS and the PFSI in its report, since afforestation activity might reduce without these schemes.68 The ASRP suggested a number of operational improvements for the East Coast Forestry Project, which is a grant scheme for East Coast forest owners that targets forest maintenance on erosion prone land.69  Finally, ASRP only conducted a partial review of the Sustainable Land Management (Hill Country  Erosion) Programme, due to a scarcity of information about government stated objectives, but suggested that this programme, which tries to mitigate soil erosion in certain North Island hill country by building the technical capacity of regional councils and funding catchment initiatives, be redeveloped into a National Soil Erosion Forestry Initiative.70

B. Environmental Protection Authority (EPA)
As previously reported, New Zealand has been working towards greater centralisation of environmental  administration  through  an Environmental Protection Authority (EPA).71  Initially this was housed within the Ministry for the  Environment  (Mf E) and  was limited  to  processing proposals of national  significance. Mid  2011,  this old EPA was replaced with  a new expanded Crown Agent EPA,72 which began operating on 1 July 2011 and has more wide-ranging powers, objectives, functions, and greater independence than before. However, the EPA’s role “is still limited to one of decision-maker and administrator  rather than the United States Environmental  Protection Agency, which acts more like a regulator and advocate. In New Zealand this function remains with local authorities for now”.73

The EPA’s objective is to contribute to the efficient, effective, and transparent management of New Zealand’s environment and natural and physical resources, and to enable New Zealand to meet its international obligations.74  The EPA has taken over environmental regulation functions from the Mf E, the Ministry of Foreign Affairs and Trade (MFAT), the Ministry of Economic Development (MED), and it replaces the Environmental Risk Management Authority (ERMA). It has assumed functions relating to New Zealand’s obligations under a number of international environmental agreements.

The EPA regulates hazardous substances and chemicals as well as new organisms (plants, animals, genetically modified organisms), keeps registers required under  the Hazardous Substances and New Organisms Act 1996 (HSNO  Act), and has taken over from the MED in regards to international obligations on hazardous waste.75 The EPA has the power “to decide applications for exemption from a prohibition on the import, export, manufacture, sale, or use of ozone-depleting substances, and applications for permits to import or export ozone-depleting substances”.76  The EPA must keep the Ozone Layer Protection Register, which contains details of permits, exemptions, and any other information required by New Zealand’s international obligations.77 The EPA makes decisions on applications for permits to import or export goods specified by Order in Council,78  administers the NZETS (from 1 Jan 2012), and keeps the New Zealand Emission Unit Register.79 The EPA administers applications for major infrastructure projects of national significance under the Resource Management Act 1991 (RMA), has responsibility for the regulatory functions of national consents under the RMA, and provides technical input and advice about the development of national environmental  standards.80  The EPA has also gained functions in relation to Antarctica. Previously the Mf E provided advice to the MFAT on environmental  impact assessments for activities with a minor or transitory impact, or more than a minor or transitory impact (initial environmental evaluations and comprehensive environmental evaluations). This role has been transferred to the EPA.81 The Exclusive Economic Zone  and Continental  Shelf (Environmental  Effects) Bill 2011 (321-1), introduced in August, would also bring EEZ governance within the EPA’s mandate if it passes into law. 82

C. Hazardous Substances, New Organisms and Transboundary Waste
In addition  to the developments related to the EPA detailed above, in 2011 regulations in this area added to the schedule of organisms that are “not new” for the purpose of the HSNO  Act83 and worked to bring New Zealand in line with international obligations relating to persistent organic pollutants and the Stockholm Convention84 by adding new prohibited, restricted, and unintentionally produced chemicals which are to be reduced and eliminated, to the HSNO  Act.85  There were also changes to the Imports and Exports (Restrictions) Prohibition Order (No 2) 2004, which regulates the export and import of Rotterdam Convention86 and Stockholm Convention chemicals, to make it consistent with New Zealand’s obligations under those conventions.87

In  2011,  Exide  Technologies  Limited  (Exide),  New  Zealand’s  only recycler of used lead-acid batteries (ULABs), unsuccessfully sought judicial review of the way the MED authorises exports of ULABs to certain countries for recycling. Until 2010, Exide had relied on imported Australian ULABs, but Australia, in pursuit of its own obligations under the Basel Convention, subsequently decided to ban the export of ULABs, which left Exide with insufficient supplies of batteries. Exide therefore went to court, objecting to the MED’s policy of granting permits while New Zealand has unused domestic recycling capacity and alleging, inter alia, that the MED was breaching the Basel Convention.88 The New Zealand High Court dismissed the application. Among  other  things,89    it  accepted  submissions  that  the  New  Zealand situation  was different to that in Australia because Australian regulations favour domestic facilities over export and the Australian domestic market is competitive (Australia has three domestic ULAB recycling operators).90  Exide unsuccessfully appealed to the New Zealand Court  of Appeal. The Court of Appeal discussed the nature of parties’ obligations under the Basel Convention91 and reading art 4.2(d) of the Basel Convention in conjunction with art 4.9 of the Basel Convention  rejected the argument that granting export permits where domestic capacity to recycle ULABs exceeds supply breaches art 4.2(d).92  It also rejected the argument that the probable closure of the plant, which Exide suggested would happen if the MED continued to grant permits for the export of ULABs, would lead to a breach of art 4.2(b) of the Basel Convention (regarding states taking appropriate measures to ensure the availability of adequate domestic disposal facilities), noting that the New Zealand EPA may have to take measures if the plant closes, but that is not the present issue.93  Exide has subsequently closed its New Zealand ULAB recycling operations.94

D. Renewable Energy
On  13 May, the National  Policy Statement  for Renewable Electricity Generation (NPS REG) took effect.95 NPS REG aims to increase the proportion  of electricity generated  from  renewable sources in  order  to meet or exceed the national target of 90 per cent renewable electricity by 2025 (at 79 percent in the March 2011 quarter96). The NPS REG requires local authorities to recognise the national significance of renewable energy, requires decision-makers to incorporate provisions for renewable electricity generation activities in their regional and district planning, and requires consideration of the objectives and policies of the NPS REG in resource consenting decisions.97

Josephine Toop
University of Canterbury

1     Opened for signature 26 January 2009, entered into force 8 July 2010.
2     Basel Convention  on the Control of Transboundary  Movements of Hazardous Wastes and their Disposal (opened for signature 22 March 1989, entered into force 5 May 1992).
3     Opened for signature 9 May 1992, entered into force 21 March 1994.
4     Kyoto Protocol to the United Nations Framework Convention on Climate Change (opened for signature 16 March 1998, entered into force 16 February 2005).

5     “Earth Negotiations Bulletin: COP  17 #1” (28 November 2011) IISD Reporting Services <http://www.iisd.ca/climate/cop17/compilatione.pdf>.
6     Second commitment  period continuation  of the Afforestation-Reforestation Debit-Credit rule was not agreed.
7     Nick Smith and Tim Groser “Durban climate change outcome welcomed” (press release, 12 December 2011) and Author’s communications with the New Zealand Ministry of Foreign Affairs and Trade.
8     Smith and Groser, ibid.
9     Tim Groser “Agriculture, Productivity and Climate Change: Putting it Altogether” (address to NZ Agriculture Fieldays, Mystery Creek, 15 June 2011) and see David Carter and Tim Groser “Countries sign up to Global Research Alliance” (press release, 24 June 2011). For more on the Alliance see the previous contribution  G Leane and J Toop “Year in Review: International Environmental Law” (2010) 8 NZYIL 218 at 219.

10    See especially arts II: Objectives and IV: Activities.
11    Art 1(a). See <http://www.mfat.govt.nz/downloads/trade-agreement/hongkong/NZ-HK-eca.pdf>.
12    Nick Smith and Tim Groser “Progress made on trans-Tasman carbon market” (press release,  2 August 2011).
13    Tim Groser “Australia and New Zealand advance linking of their emissions trading schemes” (press release, 5 December 2011).
14    Waiheke  Declaration  on  Sustainable  Economic Development  (Forum  Communiqué,  Forty-Second Pacific Islands Forum, Auckland, New Zealand, 7-8 September 2011) at Annex I and Joint Statement of Pacific Islands Forum Leaders and the Secretary-General of the United Nations (Auckland, New Zealand, 7 September 2011)
15    Forum Communiqué, ibid. See also, in relation to oceans, “Statement delivered by Jim McLay, New Zealand Ambassador and Permanent Representative, on behalf of Pacific Islands Forum Members” (speech to the Preparatory Committee  for the UN  Conference on Sustainable Development, New York, 15 December 2011).
16    Murray McCully “Tonga and New Zealand to construct solar power plant” (press release, 6 September 2011) and New Zealand Aid Programme “Tokelau: a leading light in renewable energy”    (March    2012)    <http://www.aid.govt.nz/media-and-publications/development-stories/march-2012/tokelau-leading-light-renewable-energy>.
17    Nick Smith “Slowing of ETS recommended by Review Panel” (press release, 15 September 2011).
18    Vernon Rive “Chapter 6: Forests, Trees and Native Plants” in D Nolan (ed) Environmental and Resource Management Law (4th  edition, LexisNexis, Wellington, 2011) 423 at 428.
19    “New  Zealand’s  net  position  under  the Kyoto Protocol”  Ministry  for the Environment <http://www.mfe.govt.nz/issues/climate/greenhouse-gas-emissions/net-position/>.
20    Ministry for the Environment Report of the Ministry for the Environment for the year ended 30 June 2011 (New Zealand Government, Wellington, 2011) at 18.
21    Ministry for the Environment  Land Use,  Land-use  Change and Forestry  Sector Greenhouse Gas Emission Projections for the First Commitment Period of the Kyoto Protocol from LULUCF Activities under Article 3.3: Results, Data and Methodology: 2011 Report (New Zealand Government, Wellington, 2011) at 8-10.
22    “Projected net position estimate changes since 2002” Ministry for the Environment <http:// www.mfe.govt.nz/issues/climate/greenhouse-gas-emissions/net-position/history.html> and “New Zealand’s net position under the Kyoto Protocol”, above n 19.
23    Ministry  for  the  Environment   New  Zealand’s  Greenhouse  Gas  Inventory  1990 –2009: Environmental Snapshot (New Zealand Government, Wellington, 15 April 2011).
24    Organisation for Economic Cooperation and Development Environmental Outlook to 2050: Climate Change Chapter (OECD,  Paris, November 2011) at 29.
25    Nick Smith “Slowing of ETS recommended by Review Panel”, above n 17.
26    Pre-1990 and post-1989 forests are treated differently in the NZETS,  reflecting the current Kyoto Protocol rules. Participation in the NZETS is compulsory for pre-1990 forest owners and voluntary for post-1989  forest owners. Brief summaries of other differences between pre-1990 and post-1989 forests under the NZETS can be found either in Alistair Cameron (ed) Climate Change Law and Policy in New Zealand (LexisNexis  NZ Ltd, Wellington, 2011) at 309 (Table 8.1) or in Emissions Trading Scheme Review Panel (“ETSRP”) Doing New Zealand’s Fair Share, Emissions Trading Scheme Review 2011: Final Report (Ministry for the Environment, Wellington, 2011) at 53 (Table 5.1) [“Doing New Zealand’s Fair Share”].
27    Leane and Toop, above n 9, at 224-226 or see Cameron, above n 26.
28    Following the review of the NZETS,  discussed in more detail in the next section, by the Climate Change (Unit Register) Amendment Regulations 2011.
29    Where  the  administrative  costs of those activities are seen to  outweigh  the  benefits of including them or where they only comprise a small part of New Zealand’s total greenhouse gas emissions Climate Change (General Exemptions) Amendment Order 2010.
30    Climate Change (Forestry Sector) Amendment Regulations 2011 and Cameron, above n 26, at 323.
31    Climate Change (Eligible Industrial Activities) Amendment Regulations (No. 2) 2011 and Climate Change (Eligible Industrial Activities) Amendment Regulations (No. 3) 2011.
32    Climate Change (Other Removal Activities) Amendment Regulations 2011.
33    Climate Change (Stationary Energy and Industrial Processes) Amendment Regulations 2011.
34    Nick  Smith  “Industrial  gas units  banned  from  New  Zealand’s  ETS”  (press release, 22 December 2011).
35    Doing New Zealand’s Fair Share, above n 26, at 29.
36    Doing New Zealand’s Fair Share, above n 29, .
37    Patrick Smellie “ETS review backs slower track to full carbon charging” (15 September 2011) NZNEWSUK <http://www.nznewsuk.co.uk/business/?ID=22685&StartRow=1>.
38    Dr  Jan Wright  Emissions  Trading  Scheme Review  (Submission to ETSRP,  6 April 2011) <http://www.pce.parliament.nz/assets/Uploads/PCE-ETS-Review-2.pdf> at 4.
39    Doing New Zealand’s Fair Share, above n 26, at 7, 33 and recommendation 3.3.
40    Doing New Zealand’s Fair Share, above n 26, at 31-32 and recommendation 3.1.
41    Doing New Zealand’s Fair Share, above n 26, at 32 and recommendation 3.2.
42    Doing New Zealand’s Fair Share, above n 26, at 85 and recommendations 3.5 and 3.6.
43    Doing New Zealand’s Fair Share, above n 26, at 33-34 and recommendation 3.4.
44    Doing New Zealand’s Fair Share, above n 26, at 34.
45    Doing New Zealand’s Fair Share, above n 26, at recommendation 3.7.
46    Doing New Zealand’s Fair Share, above n 26, at 35-38 and recommendation 3.9.
47    Doing New Zealand’s Fair Share, above n 26, at 41-2 and recommendation 3.13.
48    Doing New Zealand’s Fair Share, above n 26, at 8.
49    Doing New Zealand’s Fair Share, above n 26,  at 51.
50    Which would allow deforestation in pre-1990 forests without liability so long as the equivalent is established elsewhere, see ibid. at 54-55 and recommendation 5.4.
51    ETSRP opines that averaging should be an available option from 2012 for post‐1989 forests (at recommendation  5.11), as it would remove several key risks for post‐1989  participants which would encourage them to join the NZETS.  Averaging is a process whereby “units would be issued only up to the long‐term average forest carbon stock level for carbon earned from 1 January 2008, and none would have to be paid back when harvesting occurs, provided the forest is replanted”: Doing New Zealand’s Fair Share, above n 26, at 58 and 8-9.
52    Doing New Zealand’s Fair Share, above n 26, at recommendation 5.5.
53    Doing New Zealand’s Fair Share, above n 26, at recommendation 5.10.
54    Doing New Zealand’s Fair Share, above n 26, at 52 and 58-59.
55    Doing New Zealand’s Fair Share, above n 26, at recommendation 5.15.
56    Doing New Zealand’s Fair Share, above n 26, at recommendation 5.2.
57    Doing New Zealand’s Fair Share, above n 26, at recommendation 8.1.
58    Doing New Zealand’s Fair Share, above n 26, at 69-71 and at recommendations 7.5-7.8.
59    Doing New Zealand’s Fair Share, above n 26, at 68-69 and at recommendations 7.1-7.2.
60    Doing New Zealand’s Fair Share, above n 26, at 77.
61    Smith, above n 34. See also Climate Change (Unit Register) Amendment Regulations 2011.
62    Doing New Zealand’s Fair Share, above n 26, at 48.
63    Doing New Zealand’s Fair Share, above n 26, at 8 and recommendation 4.2.
64    Doing New Zealand’s Fair Share, above n 26, at 8.
65    Ministry of Agriculture and Fisheries Review of MAF Afforestation Schemes – Final Report of the Review Panel (New Zealand Government, Wellington, 23 June 2011). See also “Forestry Schemes Review”  Ministry  of Agriculture and  Fisheries <http://www.maf.govt.nz/news-resources/consultations/forestry-schemes-review>.
66    For further information about the PFSI see Rive, above n 18, at 429.
67    More information can be found at Review of MAF Afforestation Schemes, above n 65, at 12-13.
68    Doing New Zealand’s Fair Share, above n 26, at 52.
69    See Review of MAF Afforestation Schemes, above n 65, at 13-15.
70    Ibid, at 16-17.
71    See Leane and Toop, above n 9, at 227. See also the EPA homepage at <http://www.epa.govt.nz/Pages/default.aspx>.
72    By the Environmental Protection Authority Act 2011. Note, a number of other Acts were also split from the original Bill. These are discussed in the following paragraphs.
73    Russell McVeagh “RMA Reform Report: New functions for the EPA” (16 May 2011) <http://www.russellmcveagh.com/_docs/RMA.Reform.May.2011_399.pdf> at 2.
74    Environmental Protection Authority Act 2011, s 12(1).
75    The Hazardous Substances and New Organisms Amendment  Act 2011, which came into force 1 July 2011. The EPA now has the functions of advising, monitoring,  and reviewing hazardous substances and new organisms (s 11) and replaces the ERMA which formerly assessed and decided on applications to introduce new organisms or hazardous substances into  New Zealand and regulated hazardous substances such as pesticides, fireworks and explosives. See also <http://www.epa.govt.nz/about-us/obligations/Pages/default.aspx>.

76    Ozone Layer Protection Amendment  Act 2011 which came into force on 1 July 2011 and gave the EPA this power: see explanatory note of the Ozone Layer Protection Amendment Act 2011 Commencement  Order 2011. The Ozone Layer Protection Amendment Act 2011 also inserts requirements for permits (new sections 9A to 9D of the Ozone Layer Protection Act 1996).
77    Ozone Layer Protection Act 1996, ss 12B and 12C (as inserted by the Ozone Layer Protection Amendment Act 2011).
78    Imports and Exports (Restrictions) Amendment Act 2011 which came into force on 1 July 2011.
79    Climate Change Response Amendment  Act 2011 which came into force on 5 December 2011 and amends the Climate Change Response Act 2002 and its regulations to give the EPA such responsibilities. The Climate Change Response Amendment Act 2011 sets out the EPA’s powers to appoint the Registrar (of the Registry which deals with accounting of emissions units) and adds sections on the functions of the Chief Executive, among other things. See the explanatory note of the Climate Change Response Amendment Act 2011 Commencement Order 2011.
80    Resource Management  Amendment  Act 2011 which came into force on 1 July 2011. The Resource Management Amendment Act 2011 also contains provisions relating to functions of the Minister for the Environment and the EPA under the RMA. See also explanatory note of the Resource Management Amendment Act 2011 Commencement  Order 2011.
81    CAB Min (10) 19/9 and see Nick Smith “EPA to improve NZ’s environmental management” (press release, 30 June 2011).
82    The Bill passed its first reading on 13 September 2011 and was then referred to the Local Government and Environment Committee.
83    Hazardous Substances and New Organisms (Organisms Prescribed as Not New Organisms) Amendment Regulations.
84   Stockholm Convention on Persistent Organic Pollutants (opened for signature 23 May 2001, entered into force 17 May 2004).
85    The Hazardous Substances and New Organisms (Schedules 1A A and 2A) Order 2011.
86    Rotterdam  Convention  on  Prior  Informed  Consent  Procedure  for  Certain  Hazardous Chemicals and Pesticides in International  Trade (opened for signature 10 September 1998, entered into force 24 February 2004).
87    Imports and Exports (Restrictions) Prohibition Order (No 2) 2004 Amendment Order 2011 added new chemicals and other amendments to the Stockholm and Rotterdam schedules of the Order (Schedules 1 and 2, respectively).
88    The Basel Convention is largely incorporated through the Imports and Exports (Restrictions) Prohibition Order (No 2) (2004).
89    A summary of the issues considered in the High Court under the first cause of action can be found at paragraph 68 and are further discussed at [69]-[126]. The second cause of action, procedural fairness, is discussed at paragraphs 127-131.  Exide Technologies Ltd v Attorney-General HC WN CIV-2011-485-1549, 16 September 2011.
90   Ibid, at [118]-[119].
91    Exide Technologies Ltd v Attorney-General [2011] NZCA 651 at [33]-[34].
92    Ibid, at [41]-[48].

93    Ibid, at [35]-[40].
94    “Residents relieved as Exide plant closes down” TVNZ  National News (New Zealand, 30 March 2012).
95    NPS REG is available at <http://www.mfe.govt.nz/publications/rma/nps-renewable-electricity-generation-2011/docs/nps-reg-2011.pdf>.
96    Hekia Parata “Energy Strategy sets direction for New Zealand’s energy future” (press release, 30 August 2011).
97    NPS REG above n 95, at Objective and Explanatory Note.