Review of environmental watchdog not before time after it threw caution to wind releasing new techniques.
A spectacular fail by the Environmental Protection Authority raises serious questions about its reliability as a guardian of the environment.
At issue was the authority's decision to allow genetically modified organisms (GMOs) from two new breeding techniques to go into New Zealand fields without any formal consultation or assessment of the impacts.
The High Court quashed that decision a fortnight ago, saying the authority had misinterpreted the law. The judgment also found the authority's interpretation "did not sit well" with its legal duty "to protect the environment, and the health and safety of people and communities".
It further criticised the authority for failing to act cautiously when faced with uncertainty about what the law covers.
In other words, the government agency responsible for protecting people and the environment didn't properly understand its own law and rather than erring on the safe side, took an interpretation that risked the very things it is meant to protect.
And this decision was not an approval for a minor field trial. The authority was saying two new ways of making GMOs would not be regulated at all. It meant GM plants, animals and trees could be freely grown with no oversight if they were made with these new techniques.
Further, the three-person committee that made the decision went against two rounds of authority staff advice that concluded the new techniques were GM. Yet the authority decision devoted just one sentence to the reason for its rejection of that staff recommendation.
Perhaps most concerning is that the authority made no real assessment of what consequences would flow from its decision. It put the country at risk of losing its status as a GM-free food producer with no formal consultation or consideration of the impact.
The detail of the case revolved around a regulation that excludes certain traditional plant breeding techniques from the GM laws. The authority decision effectively added two new techniques - Zinc Finger Nuclease and Transcription Activator-Like Effectors - to that exemption list.
The Sustainability Council appealed against the decision, arguing that only the Cabinet or Parliament can exclude new techniques from coverage and that it was unlawful for the authority to do so.
Those first at risk from the authority's sudden deregulation of the new breeding techniques were our food exporters. High-value markets such as Europe generally don't tolerate any detectable GM content in food.
The EU has yet to set regulations for these new GM techniques. But if they were used to grow crops in New Zealand which contaminated export production, the shipments could wind up being rejected. It just takes Europe to decide the new techniques are GM and the losses could be very significant.
Several cases involving unapproved GMOs have cost hundreds of millions of dollars, yet the records of the authority's decision-making do not mention this risk.
New Zealand's GM laws were put in place to allow the risks of GMOs to be assessed in advance and to provide a process for stakeholders, such as food producers, to be consulted on any important decisions.
A key motivation for developing the new GM techniques has been to "invent around" the law, according to a leading biotechnology journal. The authority should have been very cautious considering whether to allow them to effectively bypass our GM laws.
Not only did the authority misread the law it administers, there's no evidence in documents obtained under the Official Information Act it thought about the impact on food exporters or stopped to ask the simple question: "Is this something we should be doing without consulting those who would be affected"?
The authority failed on not just one, but a series of things that are fundamental to what it does, indicating something bigger is wrong and a formal review of the authority next month comes not a moment too soon.
Simon Terry is executive directive of the Sustainability Council.