Previous form of EPA
Roles of newly constituted EPA
Possible further roles
The Environmental Protection Authority Act was passed earlier in 2011, expanding the role and mandate of the Environmental Protection Authority (EPA) to include the management of hazardous substances, the regulation of hazardous imports and exports, and the provision of technical advice on the development of environmental regulations. The EPA will also administer New Zealand's emission trading scheme from January 2012.
The EPA was initially established as part of the 2009 reforms to the Resource Management Act 1991, the primary environmental legislation in New Zealand. One of the key purposes of introducing the EPA was to provide efficient and timely processing for proposals of national significance, such as major infrastructure or public works projects.
The role of the EPA before the Environmental Protection Authority Act was relatively limited. It was primarily focused on national consenting functions – namely, providing administrative assistance to boards of inquiry set up to hear applications for environmental approval for projects of national significance under the Resource Management Act.
The Environmental Protection Authority Act 2011 has effectively reconstituted the EPA as a new authority with additional powers and roles under other legislation, and it is now classed as a crown agent under the Crown Entities Act 2004. This statute also disestablishes the previous form of the EPA. The primary reason for the reconstitution of the EPA as a crown agent is to provide a clear split between the environmental policy functions of the Ministry for the Environment and the more regulatory and technical functions that the EPA now has as a result of other recently enacted amendments to legislation that have broadened the scope of its role.
Roles of newly constituted EPA
The newly constituted EPA continues its administrative functions in relation to nationally significant projects under the Resource Management Act, but its role has been significantly expanded.
Management of hazardous substances
The EPA now has responsibility for all of the functions formerly performed by the Environmental Risk Management Authority under the Hazardous Substances and New Organisms Act 1996. These functions include:
- advising the minister for the environment;
- monitoring adverse effects of hazardous substances or new organisms;
- taking enforcement action;
- promoting public awareness;
- inquiring into incidents involving hazardous substances or new organisms;
- giving directions for the disposal of persistent organic pollutants; and
- making decisions on a wide range of applications under the hazardous substances legislation.
Advising on environmental regulations
The role of the EPA has also been extended to include providing (at the request of the minister for the environment) technical advice on the development of environmental regulations. For example, the minister may request advice on the development and implementation of national environmental standards under the Resource Management Act.
There are benefits in vesting a national-level body with this role in the development of national environmental standards, provided that its staff has the time and technical expertise to focus on these standards. To date, 20 years after the introduction of the Resource Management Act (which enables national environmental standards), there are only five such standards in effect on matters such as water quality, sources of human drinking water, telecommunications facilities and electricity transmission. Three further national environmental standards are in draft form. However, a potential risk is that national environmental standards prepared by the EPA may not fully align with other national-level instruments developed under the Resource Management Act, such as national policy statements made by the Ministry for the Environment. The EPA and the ministry will need to take a coordinated approach to ensure that inconsistencies do not arise.
Regulation of hazardous imports and exports
The EPA has also been given regulatory and administrative roles in relation to:
- import and export restrictions for chemicals, products, organisms, waste and other substances that pose a risk to human health or the environment under the Imports and Exports (Restrictions) Act 1988; and
- applications for exemptions under the Ozone Layer Protection Act 1996 on prohibitions on the import, export, manufacture, sale or use of substances or goods that are ozone depleting or may otherwise modify the ozone layer.
Clarification of role in national projects
At the same time that the Environmental Protection Authority Act was passed, Parliament used the opportunity to amend the Resource Management Act to clarify the functions of the EPA. The amendments clarify the EPA's role in making recommendations to the minister for the environment on national projects and the factors that it may take into account in doing so.
The responsibilities of the EPA are set to expand soon. Indications are that the EPA will take on the role of administering the New Zealand emissions trading scheme – the country's primary climate-change response measure – from January 2012. It will be required to:
- keep a register of persons that carry out activities under the scheme;
- gather and collate data and other information provided by participants;
- administer allocations relating to industry and agriculture; and
- approve the use of unique emissions factors by participants.
It will also adopt further roles in publishing information and undertaking enforcement action.
The EPA has also been identified, under new draft legislation recently introduced to Parliament, as the proposed consenting authority for activities taking place within New Zealand's exclusive economic zone and continental shelf.
The passage of the Environmental Protection Authority Act signalled the start of a process of significant expansion of the EPA's role. This process is now well underway, and will continue over the coming months as it looks to expand into a regulatory role in relation to New Zealand's emissions trading scheme and extra-territorial waters. This ongoing administrative reorganisation represents a significant part in the government's push to increase national direction for environmental regulation in New Zealand.
For further information on this topic please contact Gerald Lanning, Michelle van Kampen or Greg Severinsen at Simpson Grierson by telephone (+64 9 358 2222), fax (+64 9 307 0331) or email ([email protected], [email protected] or [email protected]).