This appeal concerned the correct interpretation of a statutory provision related to the discharge of greenhouse gases.
The relevant section of the Resource Management Act 1991 (s 104E) read: “Applications relating to discharge of greenhouse gases. When considering an application for a discharge permit or coastal permit to do something that would otherwise contravene section 15 or section 15B relating to the discharge into air of greenhouse gases, a consent authority must not have regard to the effects of such a discharge on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases, either— (a) in absolute terms; or (b) relative to the use and development of non renewable energy.”
The appeal arose because Mighty River Power applied to the respondent for resource consent to commission its unused facilities as a coal-fired power station. The application did not involve the use of renewable energy. It said therefore, that the use of the coal-fired power station would not enable a reduction in greenhouse gas emissions and accordingly, based on s 104E, its application involved no scope for consideration of the effects of the discharge of greenhouse gases and the section was inapplicable. The appellant contended that the exception in s 104E applied to all resource consent applications relating to the discharge of harmful substances into the environment regardless of whether such applications were made in respect of renewable or non-renewable energy projects and it could not be restricted it to applications for renewable energy projects.
The court interpreted the regulatory framework and emphasized that resource consent applications for discharge permits involving the discharge into air of greenhouse gases were more likely to be granted if they involved the use of renewable energy which would enable a reduction of greenhouse gases because the consent authority was able to consider the benefits to be derived from the use of renewable energy. However, the fact that a discharge permit application which otherwise qualified under s 104E included no proposal for the use of renewable energy did not exempt it from being considered under s 104E. That was a discretionary factor for the consent authority to take into account in deciding whether to grant consent and to have regard to the effects of the discharge of greenhouse gases on climate change.
Section 104E therefore made it more likely that resource consent would be granted if they included a proposal for the use of renewable energy than if they did not. The appeal was allowed.