Watered down: A behind the scenes battle over politics, science, and water reform

Tuesday, 16 June 2020

A central pillar of the Government’s freshwater reforms was curiously absent from the final policy. Behind the scenes, a minor disagreement among scientists – along with pushback from outside forces – ultimately showed the limits of science in the political realm. Charlie Mitchell reports.

They had spent a lot of time together, talking, debating, analysing; they got to the end and circled back to the beginning.

The scientists had been debating one set of numbers for the better part of a year. It prompted reports, graphs, and re-analysis of the reports and graphs. By the end, hundreds of pages had been written on a simple number: 1.

In the spirit of circling, let’s start this story at the end, just for a brief moment. After nearly two years of work, the Government released a rescue package for rivers and lakes.

**READ MORE:

* Plan to clean up waterways comes with 'sting in the tail' for farmers

* Regulation is about future protection of our water

* Worry on the Waimea Plains as nitrates in some bores exceed water standards

* Hand-wringing over freshwater standards doesn't help

* The tab for decades of water mismanagement is falling due

* The public relations war over freshwater has re-started

**

It played out with numbing familiarity, as is often the case in New Zealand's environmental politics: Environmentalists were cautiously optimistic, but clearly disappointed; farmers weren’t thrilled, but nevertheless relieved it wasn’t worse.

Perhaps that was why it didn’t register much with the public; history may not repeat, but it rhymes, and we’ve heard this song before (not to mention the small matter of the global pandemic, the ensuing economic depression, and, well, everything else).

But look closer, and there was something happening on the margins of this story, something that tells us how science and politics bounce off each other in meaningful ways.

The announcement was clearly disappointing to some; no surprises there. But to a few people, it was worse than that.

Those people were not only experts in the field, but experts who had the Government’s ear. Somewhere along the line, their expert advice had been watered down.

“I think it's a waste of paper, personally,” says Professor Russell Death, one of New Zealand’s most prolific freshwater scientists, describing the $700m programme he had advised on.

“I don't think it does anything. They might as well not have put it out.”

There were others who felt similarly (if not as resolutely).

“For the goal of restoring rivers to a healthy state within a generation, I would give the Government’s policy a D grade,” said Dr Adam Canning, a freshwater ecologist who authored many of the hundreds of pages provided to the Government for its decision-making.

“It's a mixed bag. It will help hold the line, but does little to drive restoration.”

Then there was Dr Mike Joy, a familiar face in these stories: “We’re still just going to have all the same problems,” he says. “The dairy industry is going to die of its own accord before we get any regulation done.”

There were positive comments too, of course. Some experts believed the measures would help, if not as quickly as was necessary.

“Based on what has been announced, I am quietly optimistic that the policies will make a difference to how we care for our waterways,” said Dr Joanne Clapcott, a freshwater scientist at Cawthron.

Some experts went further in their optimism.

“As a package, the measures announced are a major step forward in halting and reversing the decline of New Zealand’s waterways,” said Dr Bryce Cooper, a NIWA scientist.

“Many others have said the same thing. And, I think, everyone agrees that this is not a full stop, rather a comma. There is more to be done.”

How did these experts, looking at identical information, come to adopt such a wide range of views?

When the freshwater reform programme was announced in 2018, this outcome seemed unlikely.

The Government had assembled a 19-strong Science and Technical Advisory Group (STAG) – among them the country’s most experienced freshwater scientists – to come up with scientific advice.

The idea was they’d get together in a room and hash out policy, driven solely by scientific evidence, to recommend to the Government. Simple.

The reality proved much more complicated.

This account of how the freshwater reforms were developed – based on interviews with advisory group members, records of their meetings, and emails between Government officials and outside parties – shows how an ambitious fix to a decades-long problem, grounded in science, took a more moderate path once politics got involved.

It shows how devilish science-based policy making can be. What happens when a group of experts, looking at the same information, come to different conclusions?

THE BOTTOM LINE

At the centre of all this is a nice, round number: 1mg/l.

This simple number represents the amount of Dissolved Inorganic Nitrogen (DIN) a waterway can handle before it starts to affect the health of its ecosystem. That’s what the evidence suggests, anyway.

(The DIN will henceforth be called nitrogen, for simplicity’s sake).

Some background: The health of New Zealand’s rivers and lakes has been steadily declining over recent decades.

A major reason is because some rivers are overloaded with nutrients. Two nutrients, in particular, are responsible: Nitrogen, and phosphorus.

These two nutrients can fuel plant growth; it’s the reason they’re the primary ingredient in fertilisers.

Some plant growth in rivers is good, but too much can be damaging. The plants in our rivers are typically slimy algae, and they can choke the life out of a waterway; light can't get through, making the river inhospitable to life.

One of the worst side effects is when the plants die-off and decompose. It sucks the oxygen from a river, immediately killing the critters living there.

This out of control plant growth, caused by too many nutrients, is called eutrophication.

Despite how problematic it has become, there have never been national rules to stop eutrophication in rivers.

In the existing national rules, passed under a National-led government in 2011, there is a national limit for nitrogen, but it’s set unusually high, at 6.9mg/l.

The logic is that laboratory tests showed 80 per cent of critters in a river do not find this level of nitrogen toxic. This is a vital distinction: The limit is for toxicity, not eutrophication.

Mentioning this to a freshwater ecologist is like throwing a red rag at a bull.

“The toxicity is a laboratory, fish tank thing,” says Dr Mike Joy. “It doesn't matter in real life.”

When you spend enough time talking to freshwater scientists, you come to learn there’s a driving metaphor for every occasion.

Here’s one that explains why the toxicity limit doesn’t make sense.

At high enough levels, alcohol is poisonous to humans. But alcohol affects us long before it poisons us; at relatively low levels, it makes us unsteady on our feet, slow to react, embarrassing to be around in public, among other things.

That's why we set the drink-driving limit much lower than the point where alcohol poisons us.

Think of nitrogen in a river like it's alcohol in our bloodstream. Setting a nitrogen limit at the toxicity level is like setting the drink-driving limit at the toxicity level. You're not dealing with all the bad things that happen before you've been poisoned.

For freshwater scientists, the central question is what the nutrient limit – or, to continue the metaphor, the drink-driving limit for rivers – should be to prevent against eutrophication, which is when bad things start to happen.

After much discussion, the Government’s experts decided it was around 1mg/l

That’s what most of them thought, anyway.

THE CAUTIOUS FIVE

From the very beginning, there was mild unease about this number.

On its face, it’s very low – an 85 per cent reduction from the existing nitrogen bottom line. It also wasn’t immediately clear how the figure was calculated.

The number hadn't come from nowhere. Several years ago, Russell Death wrote a paper proposing nutrient bottom lines that would protect ecosystem health.

This paper was presented to the STAG, which voted to use it as the basis for further work.

“Everyone went yup, sounds good, but there's a few points we want to go away and check,” one STAG member said.

“It was from there that it started wavering.”

The uncertainty came from five of the group’s 19 members. They would later adopt a snappy moniker: The Cautious Five.

They included three NIWA scientists, a professor at the University of Waikato, and a water scientist at Horizons Regional Council (they were acting as individual experts, not as representatives of their employers).

When writing his original paper, Death had used a “weight of evidence” approach, drawing on multiple lines of evidence, both locally and internationally.

Many jurisdictions use nutrient bottom lines; in fact, it's unusual not to. For nitrogen, the bottom lines typically end up in the vicinity of 1mg/l.

As Death points out, China – not traditionally known for its environmental extremism – has a national nitrogen bottom line of 1mg/l. So, too, do large areas of the United States, and parts of Europe.

A 1mg/l limit would not be pristine, either. The reference value - meaning the amount of nitrogen expected in natural conditions - is between 0.1mg/l and 0.2mg/l. The proposed bottom line was still a five-fold increase.

In this respect, New Zealand is already an outlier from its major trading partners, despite its reputation as a clean, green country. The 1mg/l proposal would simply bring it in line with the rest of the world.

So, what was the objection?

First, it's important to say that all the experts agreed on two things: Nutrients in high concentrations can damage ecosystems, and the current rules were inadequate.

What the Cautious Five weren't sure about was how much of an effect nutrients had on ecosystem health.

Understanding this involves a dip back into the weeds (or the slimy algae, if you like).

There's another measure of water quality that bears mentioning – the Macroinvertebrate Community Index (MCI).

The MCI measures a river's health by the critters that live there.

To find the MCI, a freshwater scientist goes to a river and scoops up some macroinvertebrates – small animals without backbones on a stream or river bed – and makes some calculations. How many species there are, how tolerant those species are to pollution, and so on.

The end result is a single number. The higher the number, the better the river's health. The best rivers have an MCI above 150; the worst are below 50.

What the Cautious Five wanted to know was whether there was a clear relationship between high nutrient levels and the MCI.

In theory, there should be. Nutrient pollution should affect sensitive species, therefore dropping the MCI.

But that wasn't always the case.

In the Bay of Plenty, for example, there were rivers with a high MCI, and high nitrogen levels. In some cases, there were rivers with low nutrient levels and a low MCI. If this relationship didn't stand up to scrutiny, it would mean nutrient bottom lines may not adequately protect ecosystem health.

This threw a spanner in the works. The five were not just questioning where the nutrient bottom lines were set, but whether they had merit at all.

“[Bottom lines] are a blunt tool for managing the effects of nutrients on ecosystem health,” said NIWA’s Dr Bryce Cooper, one of the Cautious Five.

“It might be overly stringent in some places, and not stringent enough in others. We can do better than that, in terms of having a more targeted tool.”

To explain, Cooper introduces another driving metaphor.

When it comes to the speed limit, we don’t take an average speed – say 70km/h – and apply it uniformly nationwide.

On a motorway, we set it at 100km/h; outside a school, 30km/h. It depends on the context.

A national limit would be too high in some places, and too low in others, Cooper says. “In [our view], the proposed single bottom line for river nutrients will result in too many overs and unders, not triggering a management response in rivers where it is necessary to protect ecosystem health and vice versa.”

But the other side says we have a maximum speed limit for a reason.

We know that at high enough speeds, the risk becomes too high – that’s why we have 100km/h as a bottom line. If authorities want to make the speed limit lower in some places, they should do so.

For the majority of the experts, the point at which the damage to rivers caused by nitrogen became observable was 1mg/l.

This view was particularly stringent among the freshwater ecologists in the group – most of all, Russell Death, Mike Joy, and Dr Adam Canning, a research scientist at Australia's James Cook University.

“There was a very clear, nice relationship, showing a really strong threshold around 1mg/l where things went haywire,” Joy says.

“All the freshwater ecologists were strong and saw the need for a nitrate limit.”

And so with this collegial dispute lingering over their work, the scientists did what they do best: They analysed, re-analysed, and re-re-analysed the data.

'THEY'RE PLAYING GAMES'

While the STAG was buried in its work, the Ministry for the Environment (MfE) was trying not to rock the boat.

Although MfE had its four official advisory groups, it was also keen to meet more broadly with the likes of iwi, environmental groups, and the primary sector.

It was the last group that caused unease among some on the official advisory groups.

Any freshwater rules would impose regulations on farmers, so meetings between the rule-makers and the rule-followers before any rules had been proposed had the potential for capture.

The view was they should have the opportunity to comment during public consultation, just like everyone else.

The breadth of those meetings only became clear in May 2019, when they were accidentally revealed.

Documents show that on May 28, ministry officials sent information to members of various agricultural groups – including Federated Farmers, DairyNZ, and Beef & Lamb, among others – “setting out key parts of the draft Essential Freshwater package”. The documents were confidential and not to be shared, one official wrote.

The documents included a rundown of the policies the Government was considering, many of which ended up in the final discussion document.

Those documents were almost immediately spread widely. Within 24 hours, the ministry had found out about the leak, and cancelled all future engagement with the primary sector.

Among those who saw the leaked documents were members of the official advisory groups, which had yet to make their final recommendations to the ministry. That was how they learned information they'd never seen before was being shared with the primary sector.

The description of the package did not include nutrient bottom lines, which the majority of the STAG had already agreed to in principle. Instead, it included a proposal to use a “nitrogen surplus” system, which would essentially set a nitrogen leaching limit, catchment by catchment. Doing so would target nitrogen pollution caused by bad farming practice, rather than natural factors such as soil type and climate.

This was unlikely to gain the support of hard-line freshwater advocates, including some STAG scientists, who would see it as endorsing high levels of pollution in some areas, such as Canterbury.

One week before the documents were leaked, a ministry official had emailed a policy adviser at DairyNZ outlining the nitrogen surplus idea, and said: “We would be keen to have sector organisation help with drafting the scope of work for this analysis.”

This had not been the only time MfE and the primary sector had spoken. Documents show that before contact with primary sector groups was cut off, the ministry had met with agriculture groups more than a dozen times.

“Although the advisory groups were the main way officials tested advice, officials also talked to a wider range of groups,” a ministry spokesperson said.

“We engaged with many stakeholders, including primary sector groups and environmental groups, both formally and informally, and that is normal practice.”

It nevertheless caused unease.

“For me, [MfE officials] lacked confidence and clarity in their role as regulators and seemed to see themselves more as collaborators,” one independent advisor said.

As for Mike Joy – who, along with the other scientists, was still trying to clarify the data behind nutrient bottom lines, a key part of any freshwater policy – he saw it as a show of bad faith.

“The fact they were having these meetings and promising us it was all above board just says it all,” he says.

“They were just playing games.”

AN UNCERTAIN PUBLIC

Despite ongoing uncertainty from the Cautious Five, there was enough agreement among the STAG by June 2019 to recommend the nutrient bottom lines go out for public comment.

With the blessing of MfE officials, the discussion document included that earth-shattering number: 1mg/l.

The public consultation, for the most part, went poorly.

The document was released in the middle of calving season, with a comment period of six weeks. For such a complex set of rules, thick with data, it wasn't enough. Although it was later extended to eight weeks, it still came at a bad time for farmers, particularly given many were still dealing with the fallout of M. bovis.

Ministry officials went on a public roadshow to hear concerns and answer questions. The first meeting, in Ashburton, set the tone: Around 350 farmers showed up, many of them well-informed and ready to debate.

Canterbury was always going to be the hardest sell for nutrient bottom lines. The Plains have the highest density of dairy cows by herd size in the country, on leaky soils where any pollution almost immediately ends up in rivers and streams.

In some Canterbury rivers, the existing nitrogen bottom line of 6.9mg/l would be aspirational, let alone a limit seven times lower. Meeting that bottom line would undoubtedly require shutting down dairy farms.

Later modelling by MfE showed nitrogen pollution would need to drop by a third in Canterbury to meet the 1mg/l rule, more than double the next most affected region, Southland.

The officials were largely there to listen, rather than defend the numbers that had been put out for public comment.

The next day, in Winton, Southland, many farmers watched the meeting from outside the local club rooms, which only had capacity for 150 people. Again, farmers were ready to debate the numbers, but did not find a willing sparring partner. Their feedback was noted, with only limited justification for the numbers being proposed.

Those issues had still not been resolved weeks later. At a meeting in Gore, attended by around 400 people, there was again criticism about the lack of answers about the proposals.

“Yet again officials couldn't answer basic questions raised from the floor and farmers who are trying to seek clarity were still left with giant question marks,” local MP Hamish Walker said at the time.

For some scientists following the public comment process, there seemed to be no-one defending the science, which, in their view, was clear.

Now it had entered the political realm, and other considerations were coming to the fore.

For one, it wasn't made clear the vast majority of rivers already met the proposed 1mg/l bottom line. Russell Death himself attended a meeting in Palmerston North, where attendees were criticising the proposed bottom line.

Death rose to explain the regional plan already had a bottom line of 0.44mg/l – a national 1mg/l bottom line would have no effect on them whatsoever.

It didn't seem to make a difference.

There were a grand total of 17,500 submissions, many of them long, technical, and nuanced: The Federated Farmers submission alone ran nearly 200 pages, including a line-by-line analysis of the proposals.

The STAG was reconvened in November 2019 to respond to some common points.

Although the nutrient bottom lines had gone out for comment, that did not imply an endorsement from the Cautious Five.

“For me, as a member of the five, it was, I don't really have enough evidence to support or not support these numbers,” says Bryce Cooper.

“If you're going to put them out for public consultation, it's not necessarily a bad thing. There might be science and technical input from outside the group. That was the dilemma that was faced.”

The public comments and the time apart had not changed much. The majority continued to support the bottom lines; the minority thought more work was needed.

In a last ditch effort to resolve the differences, Adam Canning was tasked with collating the evidence supporting nutrient bottom lines.

His report – which ran more than 130 pages, with 12 appendices – full-throatedly endorsed the proposed bottom lines, citing many strands of evidence.

“I'm very confident,” Canning says, about the bottom lines.

“In the vast majority of cases, nutrients will actually need to be set at more stringent levels. The bottom lines are a back stop to require improvement in grossly enriched rivers.”

Other scientists on the majority side insisted there was a relationship – maybe not perfect, but clear enough – between nutrients and ecosystem health. The threshold for nitrogen, they still believed, was around 1mg/l.

“The recommended nutrient values were based on multiple lines of evidence, which is international best practice for informing environmental limits,” said Joanne Clapcott, of Cawthron.

The group even sought a peer review of their work from Professor David Hamilton, a freshwater scientist at Griffith University in Australia. He largely endorsed the numbers. They “match reasonably well with my own interpretation of whereabouts the concentrations would fall out,” he wrote.

For the Cautious Five, it was not enough.

There was enough scatter in the data to question the strength of the relationship between nutrients and ecosystem health, particularly when you looked at differences between regions. And there was still the matter of whether bottom lines would, perversely, allow for too much pollution in some cases, and be overly punitive in others.

They wanted something more nuanced. More work, more discussion, to set limits that varied by area, rather than the 'blunt tool'.

With both sides entrenched, all reports from then on had both a majority and a minority view on the subject.

A few months later, the two sides could not resolve the philosophical impasse. The STAG's final report to the Government made 13 recommendations, 12 of which were unanimous.

“It is of significant concern… that the national bottom lines and thresholds proposed for DIN and DRP have been derived based on weak relationships that vary substantially from river to river,” the Cautious Five wrote.

“[T]he members of the sub-group are of the opinion that the available evidence does not show a high probability that reducing DIN or DRP (Dissolved Reactive Phosphorus, the other nutrient) to the suggested levels will lead to improvement in ecosystem health.”

The majority, in response, said the work in finding the bottom lines had been “scientifically rigorous, well explained and well justified”.

“We believe that there is sufficient evidence available now … to support the introduction of nationally applicable bottom lines and thresholds for DIN and DRP,” they wrote.

“We believe we cannot wait for every residual uncertainty in the evidence to be resolved before taking action.”

After all this circling, we are back at the beginning.

To recap: The Government kept the bottom lines out of its announcement, promising to reconsider in 12 months, once more scientific work was done.

While there was an air of disappointment in general, the hard-line scientists were angry, and unafraid to say so.

At the last minute, there had been a change. The nutrient bottom lines weren't going in; so, after a discussion “at ministerial level,” as the supporting documents note, there was a proposal to reduce the nitrogen toxicity limit from 6.9mg/l to 2.4mg/l.

This was dressed up to sound like a compromise. The 6.9mg/l figure aims for 80 per cent species protection from toxicity; 2.4mg/l would increase that to 95 per cent protection.

To Russell Death and Mike Joy, it was an insult. It would be like changing the speed limit from 690km/h to 240km/h and claiming the aim was to save lives.

“The real bottom line is 1mg/l,” Death says.

“Changing it from 6.9mg/l to 2.4mg/l isn't going to affect anything. Everything is going to be as dead at 2.4mg/l as it was at 6.9mg/l – it just sounds better, in my opinion.”

When someone told Joy this new limit would give 95 per cent species protection, he didn't hold back. “You're telling a freshwater ecologist this bullshit,” he says. “Do you think I'm stupid?”

The majority of the STAG had even warned against this in its final report. “We are very uncomfortable with the use of nitrate toxicity data (which is poor for New Zealand ecosystems and does not yield a relatable phosphate limit), as a basis for nutrient limits,” they wrote.

“As we understand it, this would make New Zealand the only country to try to manage the effects of nutrients on ecosystem health based on nitrate toxicity.”

So in the end, it was a wash. Views on the package ranged across the spectrum, from anger, to disappointment, to cautious optimism, to certainty that progress had been made.

Where you fell seemed to depend on which part of the proposals were emphasised. If, like Cooper, you looked at wetland protection, sediment controls, fencing, it was clear progress. If, like Death and Joy, you looked at nutrients, it was a failure, tinkering around the edges of a massive, unresolved issue.

Consensus is rare in science. The overwhelming consensus among climate scientists that human-caused greenhouse gas emissions are warming the atmosphere, for example, is almost unique – and even that isn't absolute.

For Russell Death, the scientific method is not about consensus. It is about interpreting and interrogating data, drawing the most likely conclusion from the evidence, and stepping forward boldly to address real world problems.

“I keep thinking of Charles Darwin, and his idea of natural selection. If MfE were in charge, and they had to get a consensus whether that was the way to understand evolution, it never would have happened,” Death says.

“Science isn't a consensus process. It's based on facts, and if some people disagree with those facts, it's up to them to refute what has been put forward. And none of [the Cautious Five] could put forward any facts to suggest those numerical limits were incorrect.”

The frustration is not towards the Cautious Five. It is on the Government, which used this reasonable, collegial disagreement to not take a position.

As several STAG members pointed out, the Government did not take this approach during the Covid-19 response, which was happening in parallel to the last minute negotiations around freshwater. There was no scientific consensus on how to respond to the global pandemic; no one pushing to wait another 12 months to discuss the evidence more.

“Scientists never reach absolute consensus on anything,” Adam Canning says.

“It's in our nature to disagree and say 'what about this or that?'

“It was very poor of the Government to use the lack of total consensus. I bet if we look at all the other science supporting Government decision-making, there won't be total consensus within the scientific community on any of it. Personally, I think it was used as a political scapegoat rather than being about the science.”

On the other side of the argument, doubt is something that scientists must resolve.

Policy changes like these freshwater reforms have enormous real world consequences. Scientifically, all the Is must be dotted, the Ts crossed. It is not acceptable to have major questions left lingering.

The Government plans to keep discussing the numbers, both with the STAG and with outside experts. For Russell Death, at least, he's not sure if he'll bother to come back, if asked. His position is clear.

The others will continue their work. After all, there was consensus on nearly all of it. It was just that one, dastardly number, 1mg/l, that eludes them.

“The STAG had 13 recommendations, 12 of which there was largely agreement on. There was only one in which a group of us couldn't endorse it,” Bryce Cooper says.

“I don't want the level of consensus among a wide range of scientists on the other 12 recommendations to be lost.”