An official complaint alleges
Dutch climate group Both ENDS is lodging the first complaint of its kind with the European Commission. If the complaint is upheld, the most extreme consequence could be NZ losing access to the European market.
The SMC asked experts to comment.
Professor Alexander Gillespie, Te Piringa Faculty of Law, University of Waikato, comments:
“Although free trade agreements are not novel, pushing specific international environmental components to the front of them as a core – and binding – goal within them, is new. This type of approach is commendable if the goal is to use trade policy to support, not undermine, shared environmental goals. The EU are at the forefront of this type of thinking, and their agreement with NZ is an exemplar.
“NZ has made clear promises to the Europeans, which will now be held up to the light.
“There is a five step process, which is quite drawn out – with the first major costs being in negative publicity for NZ – well before government to government consultations, evaluation by independent experts and then a possible sanction (if NZ is found to be in breach) as a last resort.
“This is a test case, which will generate considerable attention – as it is not just about climate change, but how free trade and environmental sustainability have been woven together.
“It is an open question whether NZ is currently in breach of its obligations with regards to the promises we made to effectively implement the Paris Agreement. Although our broad goals remain in place, the architecture around them (from stopping the Smith case, weakening targets, and reversing earlier exploration goals) is collapsing – and we may be found in breach of our second commitment in this area of non-regression.
“The debate about how NZ will respond will be coloured by larger political debates at the moment around whether NZ should remain in the Paris Agreement or not – while highlighting, if we leave, we risk undermining complimentary free trade agreements.”
Conflict of interest statement: “No conflicts of interest.”
Professor Barry Barton, Faculty of Law, University of Waikato, comments:
“This complaint is calling for the kind of EU action that has been foreseen for some time. No doubt the European Commission will deliberate carefully both on the political and diplomatic dimensions as well as the legal ones. What could be particularly important is the commitment in Article 19.6(2), that each Party shall effectively implement commitments with regard to nationally determined contributions (NDC), as well as to the UNFCCC and Paris agreement as a whole. The government this year and late last year ruled out offshore mitigation to meet our NDC, and played down our NDC commitment, saying that best endeavours was acceptable.
“Ministers have been quick to blame the previous government for making what they call an extravagant NDC commitment, but it’s questionable whether we would have got either the EU or UK FTAs without it, and without confirming it in the FTA. Both the EU and UK were determined to see genuine progress in climate action. And they continue to be determined.”
Conflict of interest statement: “No conflicts of interest.”
Professor of Political Science Bronwyn Hayward, University of Canterbury, comments:
“News that the New Zealand Government is the subject of a complaint to the European Commission for effectively acting unfairly by not following climate regulations imposed on all European trade partners is a very serious land-mark case which will be watched very closely by our trade partners and by other countries around the world.
“Until now the New Zealand government has been able to have it both ways, appearing to take action on an international stage over climate by making speeches about supporting the Paris climate agreement but significantly rolling back climate policy action at home.
“This is a high stakes case. It could trigger a backlash of nationalism from the minority parties who want to leave the Paris climate agreement, but our trade agreements depend on New Zealand sticking to our word and taking fair actions including fair practices on climate which we expect our partners to do too – playing by fair rules is something New Zealanders pride ourselves on. This case effectively calls out the New Zealand government for cheating on climate regulations.
“While the complaint notes the roll back of virtually all our climate legislation, the most serious trigger appears to have been the extraordinary rushed action the government took to protect New Zealand’s largest emitters from liability for climate harm – the tort liability law.
“That law, passed under urgency, not only blocked Mike Smith from taking Fonterra and other large emitters to court, it has been applied retrospectively and can apply to future cases.
“The drafting of that law was also impacted by a lobbying scandal when it was revealed Fonterra and another defendant had drafted their own text for the law but these copies were not recorded by government – the lobbying scandal and the broad reach of the climate actions in protecting emitters has tainted New Zealand’s reputation as an honest broker.
“The government has prided itself on being able to negotiate trade deals but in this moment we have been called out internationally for not playing by fair trade rules around climate – the stakes could not be higher for us as a nation, and I am deeply concerned that our government has put our country’s reputation and trade at risk.”
Conflict of interest statement: “No conflict of interest. Bronwyn Hayward is a Professor of Political Science and International relations at UC and works with climate policy serving numerous roles on the IPCC.”