3. National Intervention under the Resource Management Act
The RMA provides three specific opportunities for central government to intervene in resource management policy and/or regulatory decision-making that is otherwise devolved almost entirely to local government. These are:
- specific responses to individual projects including:
- calling-in applications for resource consent, notice of requirement or request for private plan change;
- making a submission on the matter on behalf of the Crown;
- appointing a project co-ordinator for an application for resource consent to advise a local authority;
- directing that a joint hearing be held (if more than 1 authority is involved);
- appointing a hearings commissioner (where a local authority has made a decision to use commissioners to hear an application)
- issuing national policy statements (NPSs); and
- issuing national environmental standards (NESs).
As noted above, Cabinet has asked the Reference Group to consider what role the latter two of these options might play in dealing with the issues associated with electricity transmission.
There are other ways that government can influence decision-making that are not specifically provided for in the Act, or which are not specific to government. These include issuing non statutory guidance, and making submissions on plans and consent applications. The fuller range of options is detailed in section 6 of this report.
3.1 National Policy Statements
National policy statements state objectives and policies for matters of national significance that are relevant to achieving the purpose of the RMA.
Therefore, there are two primary tests to be considered by the Reference Group. The first is whether electricity transmission is, or could actually or potentially affect, a matter of national significance.
The second is whether an NPS could state policies in relation to electricity transmission that address the issues associated with that activity, and do so in a way that promotes the sustainable management of natural and physical resources as defined in section 5 of the RMA. This is a major consideration in the policy evaluation as set out in section 6.2 of this report.
3.1.1 Assessing National Significance
In determining whether it is desirable to prepare an NPS, the Minister may have regard to the 10 matters specified in section 45(2) of the RMA. These are:
- The actual or potential effects of the use, development, or protection of natural and physical resources;
- New Zealand's interests and obligations in maintaining or enhancing aspects of the national or global environment;
- Anything which affects or potentially affects any structure, feature, place, or area of national significance;
- Anything which affects or potentially affects more than one region;
- Anything concerning the actual or potential effects of the introduction or use of new technology or a process which may affect the environment;
- Anything which, because of its scale or the nature or degree of change to a community or to natural and physical resources, may have an impact on, or is of significance to, New Zealand;
- Anything which, because of its uniqueness, or the irreversibility or potential magnitude or risk of its actual or potential effects, is of significance to the environment of New Zealand;
- Anything which is significant in terms of section 8 (Treaty of Waitangi);
- The need to identify practices (including the measures referred to in section 24(h) relating to economic instruments) to implement the purpose of this Act;
- Any other matter related to the purpose of a national policy statement.
While the RMA does not state that those matters are to be used to determine whether an issue is of "national significance", it seems a reasonable inference that the criteria may be used in that way. Part 2 of the Act will also be relevant.
In deciding to investigate the potential of an NPS or NESs, the government has accepted, prima facie, that transmission meets the test of section 45(2). The Reference Group has confirmed that electricity transmission meets that test.
However, the fact that an activity or issue might meet the criteria of section 45 (2) does not suggest that an NPS ought to be prepared, only that the government could do so if it so chose. Whether an NPS ought to be prepared can only be determined following the evaluation required under section 32 of the RMA (see section 3.3).
3.1.2 How National Policy Statements Take Effect
Once promulgated, NPSs take effect in one of four ways.
- first, local authorities must amend a regional policy statement or plan as soon as practical to "give effect" to the NPS;16
- second, local authorities must have regard to an NPS when making a decision on a resource consent application;
- third, local authorities must have particular regard to an NPS when making a recommendation on a notice of requirement; and
- fourth, local authorities must take any other action that is specified in an NPS.
In this way, an NPS can influence both the local and regional policy environment and the decisions on individual development projects. They do not, however, have the effect of a regulation in the sense that they cannot take direct or immediate effect on the individual citizen. They must be translated into a policy statement or plan (which may in turn include regulation designed to implement an NPS), or as an input to a regulatory decision.
At present, there is just one NPS: the New Zealand Coastal Policy Statement (NZCPS). Another on biodiversity is currently being prepared.
3.1.3 What NPSs May Contain
The RMA says very little about what an NPS must contain. It is clear only that they are to contain "objectives and policies". Advice indicates that these objectives and policies:
- must promote the Act's purpose (the promotion of sustainable management of natural and physical resources). An NPS cannot be used to promote the purpose of other legislation, or to promote ease of RMA administration, or uniform RMA practices per se;
- cannot be used as a de facto method of changing or redefining either primary or secondary legislation (for example they can't be used to "clarify" particular sections of the Act in such a way that limits other lawful interpretations);
- cannot alter functions of local authorities by either increasing or decreasing them;
- can be highly specific about the policy that is to be given effect to by a local authority. (For example, an NPS policy could say "development is to be contained within an area extending from x to y");
- cannot itself regulate the individual citizen (i.e. it does not have the effect of a rule within the meaning of the RMA). A policy, no matter how specific, can only take effect when translated into provisions of a plan, or when considered in the context of an application for resource content;
- can prescribe practices to be followed by a local authority, but the extent to which it will be valid to do so will be constrained by section 32;
- can prescribe the use of particular criteria; and
- can prescribe processes, but cannot impose greater requirements, or restrict what is otherwise allowed by the Act itself.
3.2 National Environmental Standards
An NES is a regulation that prescribes technical standards, methods, or requirements in relation to the control of land, the coastal marine area, the beds of rivers and lakes, discharges to water or air, and noise.
NESs may:
- prescribe the outcome or level of performance expected from certain activities;
- prohibit an activity; or
- permit an activity that does not have a significant adverse environmental effect (subject to any terms and conditions specified in the standard or in any plan); or
- allow an activity subject to a resource consent (including prescribing the consent category that applies i.e. whether local authorities should regard the activity as controlled, restricted discretionary, discretionary or non-complying).
NESs may apply generally, from time to time, within a specified part of New Zealand only, or to a specified class of person or persons.
NESs currently exist in respect of certain air quality matters, including standards in relation to dioxin and other toxics, ambient air quality, the design of wood burners, and the control of landfill gas.
3.2.1 How National Environmental Standards Take Effect
National environmental standards can have direct effect on individuals. They do not need to be translated into a regional policy statement or plan before taking effect. However, as noted above NESs can require local authorities to regulate activities in prescribed ways. In such cases NESs may be translated into rules in plans. Rules and resource consents cannot be more lenient than an NES. They can, however, be more restrictive than an NES if the NES specifically provides for that. Even where an NES exists, plans may continue to have a role specifying the requirements that apply to activities that are the subject of an NES.
NESs can also require conditions of water, coastal and discharge permits to be reviewed. When such conditions are reviewed the NES prevails over whatever conditions applied prior to that review.
In short, NESs can take various forms from absolute prohibitions and requirements, to standards that work in association with rules in district and regional plans.
3.3 Policy Evaluation and Section 32 of the RMA
Section 32 of the RMA promotes good practice in policy development by requiring that before plans or policy statements (including national policy statements or NESs) are proposed, a robust evaluation of policy options is undertaken.
In the context of electricity transmission, determining what an NPS or NES might contain, or indeed whether such instruments would be useful, it is necessary to:
- identify the nature of the problem, or problems (if any), that might exist with the current approach to managing the transmission network;
- identify the alternative means to address any problems identified; and
- carry out an evaluation of the policy options to determine which, if any, are the most appropriate.
The balance of this report is structured to respond to each of these matters in turn, commencing with a discussion of the problems and challenges in sections 4 and 5.
3.3.1 Macro and Micro Level Evaluation
The alternative means to address any problems identified involves consideration at either the macro level, being the alternatives to NPSs or NESs (the instruments that the Reference Group has specifically been asked to consider); or at the micro level being the alternative policies or standards that might be contained within an NPS or NES.
Section 32 of the RMA requires an evaluation at the micro level. That is, it requires that before notifying an NPS, each objective and policy is evaluated to examine whether it is the most appropriate provision having regard to efficiency, effectiveness, costs, benefits, uncertainty and risk.17
While section 32 does not appear to require evaluation of an NPS against other options that might exist outside of the RMA, the Reference Group considers it good practice to do so. Such an evaluation is set out in section 6.
The more detailed evaluation of particular policy or regulatory options is set out in sections 7 and 8. In including this evaluation, this draft report represents a significant contribution to the requirements of section 32 of the RMA.
However, the section 32 evaluation will be an iterative process. Although this report contains a preliminary appraisal, this will continue to evolve as comments are received and further information is gathered.
3.3.2 Alternatives to New Transmission Projects
One means of overcoming any problems or challenges posed by the way the RMA manages electricity transmission projects, is to avoid the need for projects in the first place.
Viewed in that light, the alternatives to be considered would include a wide suite of policy options (including structural changes, financial incentives and regulatory mechanisms under other legislation) aimed at, for example, encouraging more efficient use of existing infrastructure, greater distributed generation capacity, and demand side (electricity savings) measures.
However, it is important to note that this report does not consider such options. The Reference Group has been tasked with investigating options to influence Resource Management Act processes, not the wider workings of the electricity sector.18
The report proceeds on the basis that the evaluation of the alternatives to electricity transmission projects is a matter for the Electricity Commission (see section 4.5).
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