Data source
Date of text
24 Aug 2012
Country
Original language

English

Type of text
Others
Reference number
2012 NZHC 2156
Court name
High Court of New Zealand
Justice(s)
Whata
Sources
InforMEA
Keywords
air pollution (stationary sources), Climate change, mining

The present case is an appeal by The Royal Forest and Bird Protection Society and West Coast ENT Incorporated (together the "appellants") against the Environment Court's decision that the downstream effects of coal combustion are not to be taken into account in determining the consent applications by Buller Coal Ltd ("BCL") and Solid Energy New Zealand Ltd ("Solid Energy") for two new coal mine projects on the West Coast.
The ultimate issue for the High Court was whether the Resource Management (Energy and Climate Change) Amendment Act 2004 ("Amendment Act") removed the jurisdiction of consent authorities to consider the effects on climate change of the discharge of greenhouse gas emissions from the end use of coal. The appellants argued that the Amendment Act circumscribes consideration of the effects of greenhouse emissions in a precise and specific way, amending only the provisions regarding discharge permits under s104E of the Resource Management Act 1991 ("RMA"), but not other consent applications subject to s104(1)(a) (which requires consent authorities when considering any application for resource consent to have regard to the actual and potential effects on the environment of allowing the proposed activity). The effect of this argument, if successful, would be to require the Buller District Council (and Environment Court on appeal) when considering the consent applications by BCL and Solid Energy to take into account the effects on climate change from the combustion of coal by customers in China, India, Brazil and South Africa after it has been exported from New Zealand.
The High Court rejected the appellants' arguments in their entirety. In particular, the Court held that the Amendment Act removed climate change matters from a local or regional level and placed those matters at a national level for assessment. This was clear from the express purpose of the Amendment Act, which as set out by the majority of the Supreme Court in Genesis Power Ltd v Greenpeace New Zealand Inc [2009] 1 NZLR 730 (SC), requires local authorities to plan for the effects of climate change, but not to consider the effects on climate change of discharges into air of greenhouse gases. The unambiguous policy of the Amendment Act is therefore to secure the coherent regulation of greenhouse gas emissions at a national level. District-level control of greenhouse gas emissions via the resource consenting process, without any national and then regional guidance, is therefore not permissible under the RMA. The High Court accordingly concluded that the effect of the combustion of coal on climate change is not a relevant consideration under s104(1)(a) of RMA when considering the actual and potential effects on the environment of BCL's and Solid Energy's resource consent applications.