Jacinda Ardern has stressed that Wednesday’s climate emergency declaration is no more than a signal of seriousness. But what if we used the emergency powers of the state like we have during Covid-19? Pete McKenzie and Injy Johnstone ask if unlocking remarkable governmental powers would be a good idea. 

When Chlöe Swarbrick stood in May 2019 to move that Parliament declare a climate emergency – what she later described as “The least that can be expected of a House of Representatives with access to science, research and evidence,” – the opposition from her fellow parliamentarians was immediate. A year later, they have finally come around. The Labour Party announced it will propose a similar motion on Wednesday this week. Given Labour’s resounding majority, the motion will pass.

In the announcement, Prime Minister Jacinda Ardern stressed that, “a declaration is just that.” According to Ardern, it is not intended to be the Government’s only action on climate change, but rather a signal of seriousness. Nevertheless, the move has been criticised as a mere “marketing stunt” by opponents like David Seymour, leader of the ACT Party.

At first glance, Seymour is right. This declaration will not stop or remove any of New Zealand’s greenhouse gas emissions. But as New Zealanders have learned from the past year’s pandemic response, the declaration of an emergency can in certain circumstances be profoundly impactful. This is not one of those declarations, which are made under the Civil Defence Emergency Act 2002. But by recognising a climate emergency, it’s possible we are starting down a pathway which ends with an emergency declaration that unlocks remarkable governmental powers.

That raises a few questions. First, what are those powers? Second, would unlocking them be a good idea?

Before that, it’s worth discussing the criteria for declaring such emergencies. Our National Civil Defence Emergency Management Strategy recognised that climate change has been worsening civil emergencies, whether they be fires or flooding, over a decade ago. In the years since, the consequences – both current and future – of a warming climate have undoubtedly met the statutory criteria set out for the declaration of an emergency under the Civil Defence Emergency Act 2002. It:

1. is the result of any happening, whether natural or otherwise, including, without limitation… leakage or spillage of any dangerous gas or substance [or] technological failure…; and

2. causes or may cause loss of life or injury or illness or distress or in any way endangers the safety of the public or property in New Zealand or any part of New Zealand; and

3. cannot be dealt with by emergency services, or otherwise requires a significant and coordinated response under the Act.

When Covid-19 met that threshold, the Government acted swiftly and declared an emergency under the Civil Defence Emergency Management Act 2002. And while the consequences of climate change are less immediate than those of Covid-19, they will be far more consequential. Conceptualising climate change as an emergency makes sense – as Greta Thunberg has observed, the planet we call home is literally on fire. It is simply a different form of emergency to the earthquakes and tsunamis we are used to talking about in this context, with consequences that manifest in a variety of different ways which are harder to plan for and respond to. Accordingly, declaring a climate emergency under the Civil Defence Emergency Management Act 2002 would be a recognition of reality.

That’s not what is happening. Instead, the declaration the Government is planning to make – a motion in the House of Representatives – carries no particular legal power or significance.

This declaration, however, is an important first step towards recognising the urgency of the climate change threat and responding to it. Even apart from the governmental implications, it could feasibly cause a cascade of responses from private companies and the general public. And on a governmental level, just as our Covid-19 response crystallised from a hodgepodge of statements into a single Act of Parliament, this initial recognition of the climate emergency could evolve into a declaration with real legal teeth. If it did, the powers it could unlock would be massive.

These range from the obvious to the unpredictable. At the more expected end of the spectrum, one of the powers conferred by the Civil Defence Emergency Management Act 2002 on certain civil defence actors is that of urgent evacuation from and obstruction to “any premises or place”. That’s particularly relevant given that climate change has vastly increased the likelihood, magnitude and probability of simultaneous occurrence of previously rare events like major flooding, which will require major evacuation efforts. Even without such flooding, the slow creep of sea levels means the inhabitants of many coastal areas will have to move – another area where such evacuation powers could be relevant.

At the more unpredictable end of the spectrum, declaring a national state of emergency provides cover for the use of delegated legislation and emergency appropriations.

Delegated legislation are regulations which have the full force of law but which haven’t gone through the normal process of public scrutiny in Parliament. The Civil Defence Emergency Management Act 2002 allows for their use when necessary for, among other things, “prohibiting or regulating any activity or class of activity that may impede or adversely affect [civil defence emergency] measures”. 

For example, the particular regulations needed to respond to a state of national emergency on climate change could range from a complete fire ban (if the country was afflicted with extreme drought or wildfire risk) to limits on the purchase of certain goods to ensure essential supplies are maintained. As we saw with Covid-19, delegated legislation might even allow for closure of the border – not unrealistic in the context of a looming refugee crisis prompted by climate change-induced humanitarian and environmental crises.

Responding to these kinds of emergencies costs money, which is where emergency appropriations come in. Under a national state of emergency for climate change the Government could spend significant quantities of public money. This wouldn’t be subject to the usual rigour of the governmental budgetary processes. In the context of a climate emergency response, for example, un-budgeted public funds could be necessary to fund evacuations or the setup and staffing of disaster response centres. If overseas supply chains were cut off, the Government could be forced to intervene to reconnect them.

In other words, if a national emergency was declared in response to climate change it would give the government access to a vast swathe of powers not necessarily subject to the usual scrutiny of Parliament. This could be necessary – faced with urgent crises, any government has to act swiftly to save lives. That’s particularly true for climate change, the most severe challenge of our era.

But – as we saw with Covid-19 – government response-by-emergency has trade-offs in terms of accountability and public responsiveness. And regardless of what the government does, climate change, while urgent, is not going away anytime soon. Dealing with climate change as an ongoing civil defence emergency could come at an uncomfortably large cost to our rights and freedoms.

The declaration of a climate emergency is an important first step to recognising the seriousness of climate change. But by itself it does nothing to address that climate challenge. Doing so may require the unlocking of genuine emergency powers – something this declaration could be the first step towards. If it is, we have to be clear-eyed that it is a pathway which offers both immense opportunity and potential risk.

Injy Johnstone is a PhD candidate in law at Te Herenga Waka - Victoria University of Wellington. She is attending COP27, the annual climate change conference in Egypt, 6-18 November 2022.

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