Analysis: Lawyers for Climate Action New Zealand says the Commission’s emissions budgets are insufficient and their carbon accounting methods could be misleading, Marc Daalder reports

A group of high-powered lawyers who want to see more done on climate change have concluded the Climate Change Commission’s draft advice to Government doesn’t go far enough in its recommended cuts, uses a carbon accounting methodology that distorts the impact of its proposals and may be in breach of the Zero Carbon Act.

In their submission on the Commission’s advice, Lawyers for Climate Action New Zealand (LCANZ) writes, “the Commission’s draft advice does not comply with the legal requirements”. LCANZ President Jenny Cooper QC told Newsroom that the disagreement is complex, but ultimately comes down to the central purpose of the Zero Carbon Act: To require the Government to act in a way that is consistent with limiting global warming to 1.5 degrees above preindustrial levels.

The Commission’s draft emissions budgets, Cooper said, don’t meet that mark.

“We say that when the Act says its purpose is to ensure that New Zealand contributes to the global effort to keep warming below 1.5 degrees, the only way you can really interpret that is to say that we will do at least what is required by the world as a whole to keep global warming below 1.5 degrees. Otherwise you are not contributing to achieving that goal, you are contributing to failing to meet that goal,” she said.

“So that is our starting point.”

Climate Change Minister James Shaw declined to comment in detail on the LCANZ submission.

“Lawyers for Climate Action has raised some interesting points that will need careful consideration. But that’s work for the independent Climate Change Commission to do, alongside reviewing the many hundreds of other submissions they have received. I look forward to seeing where they land when they publish their final advice,” he said.

Commission’s budgets insufficient, lawyers say

Cooper points to the Commission’s recommendation that our Paris target needs to restrict emissions over the next decade to 564 million tonnes of greenhouse gases to be consistent with 1.5 degrees, even though its proposed emissions budgets covering the same period would see us emit 628 million tonnes, as being particularly problematic.

The Paris target (or NDC) can be met with offshore mitigation – paying other countries to reduce emissions directly or by purchasing carbon credits representing these reductions – while the emissions budgets can only be met with domestic action. In its draft advice, the Commission acknowledges that the ambition of the budgets is limited by what is achievable with limited impact on New Zealanders.

“The emission budgets are set at a higher level than the NDC because they must be able to be met entirely domestically. If too stringent budgets are set early on, Aotearoa risks losing production in areas where a technological solution could be applied if more time was available to implement it,” the Commission wrote.

Read more: What did the Commission recommend for NZ’s Paris target?

“For example, in food processing, before a coal boiler can be replaced with a biomass boiler, a supplier must be found and design work to integrate it into the existing process must be done. If time is not allowed for these solutions to be implemented, some businesses will simply have to shut down. This could lead to potentially more severe social and economic impacts on communities, people and businesses than would be necessary to achieve the same amount of emission reductions given more time.”

LCANZ insists in its submission that this explanation doesn’t cut the mustard. Instead, the lawyers write, the Commission should align the NDC with its emissions budgets – and they should be allow for 400 million tonnes of emissions (Mt CO2e) over the next decade at most.

“In setting the draft emissions budgets, the Commission appears to have focused on what is ‘achievable’ rather than first asking ‘What is necessary to contribute to limiting the global temperature increase to 1.5° Celsius?’. We consider that if the Commission had properly directed itself to this question, the answer would have been the same as for the NDC analysis and the budgets should have been set to limit our emissions for the coming decade to no more than 400 Mt CO2-e,” the lawyers write.

“Unless the Commission amends its advice to recommend that Aotearoa New Zealand reduces its domestic emissions to a level that is consistent with limiting the average global temperature increase to 1.5° Celsius, and with doing our fair share as a developed country, we consider that the Commission’s advice will be unlawful and at risk of being set aside by the Court on an application for judicial review.”

Cooper told Newsroom it was far too early to say whether LCANZ itself would be involved in any potential legal action against the Commission, but that they believed there was a legal basis for such action if the Commission’s final recommendations don’t take into account these issues.

“I can say we’re certainly not ruling it out but it’s premature to say what we might or might not do,” she said.

The 400 Mt CO2e figure was arrived at by converting the NDC from a gross-net target to a net-net one. New Zealand’s international emissions reduction commitments have traditionally been framed in gross-net terms, in which the country pledges to restrict net emissions to a level below prior gross emissions.

New Zealand’s current NDC, for example, promises that net emissions over the period 2021-2030 will be 30 percent lower than gross emissions were in 2005 – but still 7 percent above net emissions in 2005.

By framing the NDC as a net-net target, the lawyers said the Paris target should be 485 Mt CO2e. They then reduce that figure to 400 Mt CO2e based on the idea that New Zealand needs to do its fair share – as a high-income country that has historically been disproportionately responsible for greenhouse gas emissions, New Zealand is obligated to reduce emissions by more than the average, the lawyers say.

Carbon accounting methods key

Another key issue highlighted in the LCANZ submission is the Commission’s reliance on a carbon accounting method that makes their proposed emissions reductions look more impressive in comparison to historic emissions than they really are.

The problem here is how to account for plantation forests, which sink up significant amounts of carbon when they grow but which then release that carbon back into the atmosphere when they are harvested. A given hectare of forest will permanently sequester some CO2 in the soil and then soak up and release carbon in a saw-tooth pattern over the course of decades.

That creates issues for how to account for the impact of these forests on the atmosphere. In the Emissions Trading Scheme, foresters have the option of using averaging, which means that they will receive carbon credits for their sequestration up until the point where they reach the average carbon storage over the forest over the course of its harvest cycle. 

Read more:  Why can’t we plant our way out of climate change?

If foresters don’t choose averaging, they’ll get more credits in the short-term, but they’ll have to pay them back once they harvest their forest.

The NDC uses a similar concept, called modified activity-based accounting, to take into account the long-term impact of a given plantation forest. When trees are planted, net emissions fall, but less than they would in real life. On the other hand, when trees are harvested, net emissions don’t spike back up. The Commission has chosen to use the same accounting method in its advice and calculations, instead of the more common Greenhouse Gas Inventory method, or land-based accounting.

Land-based accounting follows the saw-tooth pattern, giving a real-time depiction of “what the atmosphere sees”. When trees are planted and growing, net emissions fall. When they’re harvested, net emissions rise.

The issue for the Commission is that a massive round of planting from the 1990s and early 2000s is about to come up for harvest. Our annual sequestration of carbon is on the verge of shrinking by more than two-thirds, from 24.3 million tonnes in 2018 to 6.7 million tonnes in 2029.

Even if gross emissions fall drastically, that could still be masked by the impact of the harvested plantation forests.

The Commission wrote that a land-based approach could damage the case for climate action.

“This results in significant fluctuations in net emissions due to harvest cycles. These are temporary and obscure underlying, more enduring trends, confusing policy and price signals about the action needed. These fluctuations also make it easier to reach net zero but difficult to maintain it after 2050,” the Commission wrote.

“In the NDC’s modified activity-based accounting, averaging smooths out the fluctuations. This makes it clear that Aotearoa needs to plant new forests and reduce deforestation to contribute to longer-term emissions reductions.”

LCANZ says this isn’t a good enough reason to use an accounting approach that masks what’s really happening in the atmosphere. In fact, the lawyers go so far as to argue that the Zero Carbon Act requires the Commission to use the standard, land-based approach.

“What ultimately matters is what we put into the atmosphere. The Commission is attempting to put us on a clear path of reducing gross emissions and increasing removals through forestry. In many ways these actions are more important than an esoteric debate over GHG Inventory net versus the ‘modified activity-based’ measure. However, it is important that we have clarity as to actual progress (or lack of it) and this is what using GHG Inventory consistently over time and for all headline measures would deliver,” the lawyers argued.

“Aotearoa New Zealand has relied on forestry removals as measured by GHGI to demonstrate our progress in the past. We cannot disown this metric now when removals are at the low ebb in the cycle. Rather, we should have a consistent measure of our progress and, if need be, explain poor performance over a particular period by reference to forestry cycles and defend our position based on longer-term performance (to the extent we can).”

Moreover, because the modified activity-based approach compensates for the swings in the harvest cycle, it actually makes historic emissions look greater than they were and the Commission’s proposed pathway look more ambitious than it is, the lawyers wrote.

“The change from using GHG Inventory net to the ‘modified activity-based’ measure makes our 2021-30 performance look better than 2011-20. That is, the 2021-30 figure is the same … but using the ‘modified activity-based’ measure increases the 2011-20 figure which makes it look as if the direction of change is favourable. It seems that we are again choosing methodologies on an ad hoc basis to improve our apparent ambition,” the LCANZ submission found.

That’s because the coming rise in net emissions from the harvesting of plantation forests has been smoothed across the entire period in which they were planted, grown and then harvested.

Cooper said she didn’t think the Commission was being intentionally misleading, but the modified activity-based approach risked it appearing that way.

“I certainly don’t think it’s presenting a complete picture. I wouldn’t want to claim it’s intentionally misleading, but it doesn’t present a complete picture and I think it may be contributing to a slightly complacent view about how New Zealand is performing,” she said.

“It’s not the fresh, unvarnished, critical view that we had anticipated we would get from the Climate Change Commission – and which I think, frankly, the public deserves.”

Marc Daalder is a senior political reporter based in Wellington who covers climate change, health, energy and violent extremism. Twitter/Bluesky: @marcdaalder

Leave a comment