Coal mines, climate change and test cases: initial thoughts on Buller Coal
Vernon Rive . 12/06/2012 5:22:04 p.m.
A feature of New Zealand environmental litigation over the past 30 years has been the willingness of individuals and organizations to venture into the uncertain and at times perilous waters of the courts to test points of law, policy or expert opinion on issues regarded as significant from a public interest perspective.
In some cases individuals, community or environmental interests have succeeded in securing rulings favourable to their positions. Select examples include Environmental Defence Society v Mangonui County Council, Otorohanga Heritage Protection Group v Otorohanga District Council, and Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development.
As often as not, cases brought by environmental groups are unsuccessful. The manner of the courts’ disposal of such cases varies. It is not unusual for applications or appeals to be dismissed in fairly short order, with costs awards against the community or environmental interests. That is especially the case where the position advanced is judged to be untenable, motivations are assessed as clouded, or the way in which the case has been brought and argued lacks focus or adopts an intransigent approach.
But where the issues are seen as important, the points on appeal or raised by an application tenable, the case prepared well and argued reasonably, judges (even when ultimately unpersuaded by an applicant’s or appellant’s case) acknowledge explicitly or implicitly the import and utility of having significant issues of law, evidence or policy put through the rigours of a court process. In these cases, there seems to be recognition that there is societal benefit in having matters of public interest and concern tested, in circumstances where if not brought before the court by community or environmental interests, those issues will remain unexamined.
Two 2002 decisions issued concurrently by the Environment Court presided over by Judge Whiting concerning challenges based on the climate change effects of proposed combined cycle power stations are examples of implicit acknowledgment of the points above. Dismissing appeals brought by the Environmental Defence Society against decisions of the Taranaki Regional Council and Auckland Regional Council, the court declined to impose conditions on discharge consents for generation facilities in Taranaki and South Auckland. The reasons included the Court’s “considerable disquiet about the efficacy, appropriateness and reasonableness of such a condition.” Yet a review of both decisions conveys little sense of misgivings at the use of Court time and processes to test matters of perceived significance, even if the prospects of success were always faint.
The content and tenor of the 30 April 2012 decision of the Environment Court in Buller Coal Limited v West Coast ENT Incorporated  NZEnvC 40 (PDF) stands in marked contrast to the 2002 EDS decisions. Buller involved competing applications for declarations by Buller Coal and Solid Energy on the one hand, and environmental groups West Coast ENT and the Royal Forest and Bird Society on the other. Both sets of applicants sought rulings on the jurisdiction and obligations of decision-makers under the Resource Management Act 1991 to consider the consequential effects on climate change of the grant of land use consents for coalmining activities taking place in New Zealand.
At the heart of the case were arguments over the proper interpretation of sections 7(i), s104(1)(a) and the meaning of “effect” considered against the statutory and legal backdrop of the Resource Management (Energy and Climate Change) Amendment Act 2004 and decision of the Supreme Court in Greenpeace New Zealand Incorporated v Genesis Power Limited (PDF). The Court ruled in favour of the coalmining companies. It held that the consequential effects on climate change of discharges of greenhouse gases to air resulting from the combustion of coal could not be considered in the context of hearings on applications for land use consent.
As other commentators have noted, the outcome is not so surprising. It is consistent with the theme of the 2004 amendments, the majority judgments of the Supreme Court in the 2008 Greenpeace decision as well, of course, as the first instance Environment Court decision which the Supreme Court effectively upheld.
What is interesting - and from this commentator’s perspective at least, surprising - is the short shrift given to arguments by counsel (including Sir Geoffrey Palmer for West Coast ENT) for the environmental groups. The Greenpeace litigation involved a challenge - always likely to be a difficult one - to the conventional interpretation of a provision in the RMA (section 104E) addressing the relevance or irrelevance of the effects on climate change when assessing an application for consent for discharges to air. Despite those challenges, the Greenpeace position (similar in approach to that adopted by the environmental groups in Buller) found favour with Williams J in the High Court and (in her minority judgment) the Chief Justice in the Supreme Court.
Unlike the Greenpeace case, the Buller Coal proceedings concerned the interpretation of a ‘standard’ RMA provision (104(1)(a)) governing the assessment of effects of an application for consent, not being an application to discharge greenhouse gases to air. On this issue, all parties agreed that the statutory framework was not identical to that which confronted the Supreme Court in the 2008 proceedings. Section 104(1)(a) contains no statutory prohibition against considering effects of land use activities on climate change. Nor does the definition of “effects” in section 2. There seemed to be an argument at least to be had. The Environment Court clearly thought not, stating “… I am not persuaded that there is any discretion concerning interpretation, or any ambiguity, or choice” (emphasis added). Costs were reserved.
It has been reported that an appeal to the High Court against the Buller decision is to be lodged. Coalminers and environmental groups alike will await with keen interest not only the outcome of the appeal but also, perhaps, views from the High Court on the appropriateness and utility of environmental groups bringing test cases on issues such as these.
(This is an adapted version of a forthcoming editorial in the June 2012 issue of Resource Management Bulletin)
By Vernon Rive on 12/06/2012 5:22:04 p.m. | Comments (0) | Print |