Mind the Gap: The Role of Climate Change in the Planning and Natural Environment Bills

Authors: Kierra Parker: Senior Associate, Planning and Environment, Simpson Grierson and Charlie Williams: Law Student at the University of Auckland

The Planning Bill (PB) and Natural Environment Bill (NEB) (together the Bills) seek to reform planning and environmental regulation in New Zealand, replacing the Resource Management Act 1991 (RMA). At the time of writing the Bills are before the Environment Select Committee, with its report due on 26 June 2026.

Climate change is a significant environmental issue. The Supreme Court have recognised ‘as indisputable that climate change threatens human well-being and planetary health’ (Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [13]-[14]). Flooding, landslips, and extreme weather events exacerbated by climate change are increasingly being felt across Aotearoa. Yet the role of climate change in the Bills is a grey area. Climate change effects are not excluded from consideration (cl 14 Bills), but neither is the mitigation of, or adaptation to, climate change a ‘goal’ of the Bills (cl 11 Bills). The benefits of transitioning to renewable energy are no longer in the core provisions underpinning all decision making (cl 14 Bills / s 7(j) RMA).

This article unpacks issues with the Bills’ treatment of climate change in light of:

·       the current RMA framework;

·       recent relevant case law;

·       the drafting of the Bills at first reading.

The role of climate change under the RMA

The adverse effects of climate change, as well as the consideration of climate change mitigation matters (such as emissions reductions), are clearly relevant to both planning policy and resource consent decisions under the RMA.

 The ‘effects of climate change’ and ‘the benefits to be derived from the use and development of renewable energy’ have been ‘other relevant matters’ that decisionmakers have regard to in section 7 of the RMA for over 20 years. The National Policy Statement for Renewable Electricity Generation 2011 (NPS-REG) has also been in force for a significant period of time, with recent amendments in December 2025.

The consideration of the effects of greenhouse gas (GHG) emissions, including for fossil fuel projects, is a more recent development. The Resource Management Amendment Act 2020 removed sections that previously prevented the consideration of the discharge of GHG emissions in resource consent decisions, and when making a rule under a regional plan (ss 104E, 70A RMA). The 2020 Amendment Act also added a requirement for local authorities to consider national adaptation plans and emissions reduction plans prepared under the Climate Change Response Act 2002 (CCRA) when preparing or changing national environmental standards, regional policy statements, regional plans, and district plans (ss 44, 61, 66, 74).

Recent relevant caselaw

A ‘hot topic’ in international climate change litigation in recent years is whether to consider ‘Scope 3’, downstream, or consequential GHG emissions when assessing an activity’s environmental impacts. An obvious example of this issue is whether the GHGs released by burning the coal extracted from a mine are relevant when considering whether to grant the environmental permit/consent for the mine.

 The landmark UK Supreme Court decision in R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council [2024] UKSC 20 (Finch) held that downstream GHG emissions were relevant to the environmental impact assessment of a fossil fuel extraction activity. The Finch case exemplifies the growing global trend of recognising the relevance of downstream / indirect effects (in Australia see Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7).

 The recent NZ Supreme Court decision of Sustainable Otakiri v Whakatāne District Council [2025] NZSC 158 (Sustainable Otakiri) concerned the resource consent for the Ōtākiri Springs Ltd’s water bottling plant. The significant decision aligns New Zealand case law with the reasoning in Finch. While addressing the effects of disposing of plastic bottles, the Supreme Court’s findings will be relevant in a climate change context.

 In Sustainable Otakiri, the Supreme Court held that indirect or contingent effects can be considered through resource consent applications. A case-by-case approach involving an assessment of fact and degree will be required to determine whether indirect or contingent effects are relevant ([71]-[76]). The Supreme Court’s analysis broadly applied the reasoning in Finch, and distinguished the previous decision in West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87. The majority held the following factors (often argued in climate change litigation) do not preclude an adverse effect from consideration:

• Extra-territoriality: Environmental impacts do not follow legal borders, “and environmental effects of activities undertaken in New Zealand will sometimes be insensitive to those borders” (see [75]).

• Legality: The fact that an adverse effect occurs from a lawful activity, such as disposal of plastic bottles in a landfill, is irrelevant (see [77]).

• Third party intervention: An adverse impact resulting from a third- party act does not preclude consideration, particularly if that act is inevitable. This was an issue in Finch, where the UKSC was considering extracted oil being burned by downstream purchasers and contributing to GHG emissions and climate change (see [79]).

• Substitution: The majority rejected arguments related to substitutability, being the notion that if the applicant does not partake in the activity resulting in adverse effects, some other actor will do to meet demand (ie, if the coal is not extracted here it will be extracted somewhere else resulting in the same emissions) (see [79]).

While this case was decided under the RMA, the Supreme Court’s findings on ‘effects’ could be difficult to displace under the new planning and environmental system created by the Bills without express legislative drafting. The Bills currently use the same definition of ‘effect’ as in section 3 of the RMA (cl 3 Bills).

 The role of climate change in the Bills

Not a goal, except through natural hazards

The effects of climate change and the promotion of renewable energy generation have not been replicated in the ‘engine room’ of the Bills.  Neither appear in the new goals (cl 11). This means climate change mitigation and adaptation will not be something that all persons exercising or performing functions, duties, or powers under the Bills should “seek to achieve”. This approach is inconsistent with the Expert Advisory Group’s (EAG) recommendation that keeping communities safe from the effects of climate change should be a goal of the PB (Blueprint for resource management reform – A better planning and resource management system 2025, p 20).

There is a natural hazard goal in both of the Bills:

• In the PB: “to safeguard communities from the effects of natural hazards through proportionate and risk-based planning” (cl 11(h));

• In the NEB: “to manage the effects of natural hazard associated with the use or protection of natural resources through proportionate and risk-based planning” (cl 11(e)).

‘Natural hazards’ is defined as including ‘the effects of climate change on’ such hazards under both Bills (cl 3). However, some effects of climate change are not related to defined natural hazards (for example, ecological/biodiversity effects from climate change or ocean acidification), so will not be indirectly relevant via natural hazards. From a drafting perspective, the Bills’ different natural hazard goals are less clear than the current matter of national importance in section 6(h) of the RMA, which is ‘the management of significant risks from natural hazards’. In the RMA the focus is on the hazard, rather than the subject matter that the hazard is affecting (ie, ‘communities’ and ‘the use or protection of resources’).

Climate change may not be something that can be left off the list of important matters for planning and environmental regulation. In the recent Supreme Court decision of Climate Clinic Aotearoa v Minister for Energy and Resources [2025] NZSC 197 (CCA), the question on appeal was whether, when deciding whether to grant petroleum exploration permits under s 25 of the Crown Minerals Act 1991, the decision maker must address climate change issues. The Supreme Court read that Act in light of its purpose, which included promoting “prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand”. The Supreme Court found that climate change was a mandatory relevant consideration despite not being explicitly referred to in that Act. Accordingly, in light of the domestic and international obligations of New Zealand, and observations of the Intergovernmental Panel on Climate Change, climate change can be a consideration that is impliedly mandatory, or ‘obviously relevant’ (CCA [7]-[8], [50]-[51], [86]-[87]).

Not an ‘out of scope’ effect

Simply because climate change is not referred in the goals, does not make it irrelevant.  While clause 14 of the PB lists effects that must be disregarded, it does not include climate change effects in that list.

The PB does require the exclusion of effects regulated under other legislation (cl 14(1)(j)), which could be very difficult and uncertain to apply. While the NEB does not have a list of out of scope effects, clause 14(b) of the NEB says that effects regulated under the PB must not be considered under the NEB. The PB does not contain the same restriction. This is problematic given that both Bills deal with the same effects (for example, natural hazards), which will likely create uncertainty. Taking a climate change example to illustrate this: an activity is a coal fired power plant that needs a land use consent and a discharge consent. One of the adverse effects is the discharge of GHG emissions which contributes to climate change. Does the PB ‘regulate’ that effect? If so, then it is irrelevant under the NEB, even though the permit required under the NEB could be for the discharge to air of GHGs.

Although climate change effects are not excluded, it is not clear whether they will be ‘regulated’ by the PB or the NEB. Just like natural hazards, they cut across the intended splitting of the environment in the two Bills, as climate change could be relevant to effects assessment in both the ‘built environment’ and the ‘natural environment’ (cl 139 PB and cl 156 of the NEB). This uncertainty leads to litigation risks and cost to users of the new system.

Adaptation only

The Bills remove emissions reduction plans (prepared under the CCRA) as a matter to have regard to when preparing plans as it currently is under the RMA. The adaptation plan (prepared under the CCRA) is a relevant matter for the creation or change of national standards, regional spatial plans, land use plans and natural environment plans (cl 62, 80, Schedule 2 cl 3 of the PB; cl 90 and 97 of the NEB). Together with the lack of reference to the promotion of renewable energy generation in the Bills’ goals, this demonstrates the Bills’ focus only on adaptation to, rather than mitigation of, climate change.

This approach is not consistent with the EAG’s observation that: “the future land-use planning system could complement emissions pricing by providing policy direction on land-use matters relevant to reducing greenhouse gas emissions, such as increasing the use of renewable energy and developing an urban form consistent with reducing emissions.” (Blueprint for resource management reform – A better planning and resource management system 2025, p 33). The current drafting of the Bills allows adaptation to be relevant, but misses the opportunity to make emissions reductions and transitioning to renewable energy explicit mandatory relevant considerations in plan making.

Risks of the ‘gap’ in the Bills as drafted

The Bills (as at first reading) leave climate change mitigation out of the picture, but not an ‘out of scope’ effect. The transition to renewable energy generation is not at the ‘core’ of the Bills drafting, in contrast to the current section 7(j) of the RMA (supported by the NPS-REG). Climate change adaptation is integrated into the Bills only indirectly by natural hazards in the goals, and through the retained relevance of adaptation plans to plan making. How climate change will be relevant to plan making and permits/consenting is uncertain and exacerbated by a number of drafting issues, creating a risk of litigation, costs, and delays for users of the system.

The Supreme Court has recognised that climate change is a matter of pressing concern for New Zealand and its well-being both in the near and long term (CCA [86]-[88]). Recent Supreme Court analysis on indirect effects, using the same definition of ‘effect’ in the Bills, could be applied in a climate change context under the reformed system (Sustainable Otakiri). The trend towards the ‘obvious relevance’ of climate change, is particularly apt when dealing with planning and environmental decision making. The Bills should fill the ‘gap’ by including in the goals and plan making sections of the Bills the mitigation of, and adaptation to, climate change. This could include the integration of GHG emission reductions requirements (under international law and the CCRA) and the promotion of the renewable energy transition.

This article represents the views of the authors rather than their employer or any client of their employer.