Topic / Wind Farms

Climate skeptics v scientists in court: the NZTR files

Vernon Rive . 17/08/2010 10:27:23 p.m.

With impeccable, or possibly ironic, timing, within a day or so of "a newly registered arm of the New Zealand’s Climate Science Coalition" lodging judicial review proceedings in the Auckland High Court against NIWA “to invalidate the New Zealand official temperature record (NZTR)”:
- the Australian Academy of Science has released a comprehensive report The Science of Climate Change containing an unequivocal finding that “the global average surface temperature has increased over the last century and many other associated changes have been observed. The available evidence implies that greenhouse gas emissions from human activities are the main cause.”
- The New Zealand High Court has issued a decision – significant on a number of other levels – containing a “side-bar” dismissal of an appeal which sought to challenge the Environment Court’s assumptions on climate change. The High Court agreed with the Environment Court’s finding that in an RMA appeal (this was a large windfarm application), it is not the Court’s role to revisit the assumption that climate change is occurring, nor should it enter into a discussion of its causes, directions and magnitude (paras 150-165).

CSC’s move to challenge NIWA’s historic temperature record has been commented on extensively in a number of blog posts and media articles in the last few days. Gareth Renowden at Hot Topic has undertaken a thorough critical assessment of CSC’s position. His commentary on it is well worth a read. The competing claims regarding the scientific validity of NIWA’s data are best assessed by climate science journalists and academic and practising scientists. But I have some initial  thoughts on the legal strategy being employed by CSC.

Judicial review is legal remedy with a long and proud track record in New Zealand. Judicial review proceedings have been employed to resolve (or attempt to resolve) disputes on topics as varied as a proposed 1985 NZRFU rugby tour of South Africa (they stopped it) , the decision to proceed with the Aramoana Aluminium Smelter (didn’t stop it), the divestment of Crown assets to newly formed State Owned Enterprises (stopped it in 1987, not so much after that), and the awarding to a newcomer of a major contract for Auckland medical testing services (halted in the High Court, went ahead after a Court of Appeal reversal).

But is JR an appropriate mechanism for resolving competing scientific claims in the climate change arena?

In 2007, UK plaintiffs backed by Viscount Monckton – also recently in the news – famously judicially reviewed the UK Secretary of State for Education and Skills’s decision to use Al Gore’s An Inconvenient Truth as an educational aid in schools. Lawyers for the father of children at one of the schools complained about a number of alleged errors in the film, and the need for a balanced presentation on what was regarded as essentially a political (as opposed to scientific) issue. The decision was widely reported for its finding that there were nine “errors” in the film: one of which involved New Zealand. However, the court broadly upheld the validity of the scientific research on which the film is based.

Closer to home, to date, there have been a number of occasions where New Zealand courts have been asked to rule on competing scientific positions concerning climate change.

In 1995 – it seems like ancient history now – a Board of Inquiry into the Stratford Power Station considered an argument that because, in global terms, the CO2 discharges would be “negligible” that issue should be put to one side when considering consenting under the RMA. The Board rejected the argument swiftly. It held “… even though the emission from the proposed power station is small by world standards, nevertheless the harm, or potential for harm, throughout the world is very large. A small proportion of a very large amount may itself be large.

That theme was picked up in a number of subsequent decisions, including (in 2002) Environmental Defence Society v Taranaki Regional Council and Environmental Defence Society v Auckland Regional Council, (in 2005) Genesis Power Ltd v Franklin District Council.

Amendments to the RMA in 2005 reduced the scope of legitimate climate change considerations for the Environment Court to (in simplistic terms) the positive effects on climate change of renewable energy projects. Notable decisions in which the legitimacy of climate change impacts was accepted by the Environment Court included (with no attempt to be exhaustive), (in 2007) Meridian Energy Ltd v Wellington City Council, (in 2008) Outstanding Landscape Protection Society Inc v Hastings District Council, Motorimu Wind Farm Ltd v Palmerston North Council, Upland Landscape Protection Society Inc v Clutha District Council, (in 2009) Unison Networks Ltd v Hastings District Council, Maniototo Environmental Society Inc v Central Otago District Council.

The examples above all concerned contested resource management approvals for particular projects.  In those cases it was open to the Environment Court to undertake a merits assessment of the proposals, and rule on competing evidence regarding benefits and dis-benefits advanced by the parties before it.

But judges in judicial review proceedings tend to shy away from “merits assessments”, focusing instead on procedure and compliance with statutory frameworks.  So, it’s unlikely the HC will be as open as the EC on the issues.

A core element of the intended CSC proceeding is an allegation that, in relation to a number of decisions or actions relating to its assessment and publication of the NZTR, NIWA has acted “unreasonably”.

Judicial review proceedings based on alleged unreasonableness are notoriously difficult to succeed on in New Zealand.  In recent years, the courts have adopted a “sliding scale of review”, where the degree or “intensity” with which the court examines contested factual or legal claims increases or decreases depending on a range of factors such as the nature and policy content of the decision, the identity of the decision maker.  In relation to research or publication decisions on issues which involve the application of fine-grained scientific methodologies, it’s hard to imagine the High Court taking anything other than a circumspect approach.

In short, I think the likelihood of the High Court embarking on a comparative review of competing positions on methodologies for adjusting historic temperature records is remote.

CSC is also alleging illegality on the part of NIWA. From the summary of claim, it looks as if CSC will rely on provisions of the Crown Research Institute Act 1992, and in particular on section 5. Section 5 specifies a number of “principles of operation” for CRI’s, including the obligations to “pursue excellence in all its activities” and “comply with any applicable ethical standards”.

Experienced lawyers never say “never” in the dark art of litigation. However, the scenario of CSC demonstrating to the satisfaction of the court that NIWA knowingly delegated tasks to personnel who themselves wilfully manipulated climate data sets seems far-fetched at best.  So too, I reckon, are the prospects of CSC establishing that NIWA knowingly and wilfully published information which it knew to be inaccurate or unreliable.

It is difficult to avoid the impression shared by a number of respected and independent commentators that the whole exercise is an ill-thought through attempt to gain publicity for a cause whose time has well and truly passed.  Or worse, a cynical ploy to distract overworked scientists whose time would better be spent on more productive tasks than rebutting tired, and probably irrelevant, claims through the court process.

NIWA’s statement of defence is due within 30 days of service.  It will be interesting to see how tactical moves on the part of NIWA, and possible applications for intervention by interested parties such as the Environmental Defence Society, pan out.

By Vernon Rive on 17/08/2010 10:27:23 p.m. | Comments (2) | Print

Cloudy, with a chance of appeals

Vernon Rive . 21/01/2010 3:45:14 p.m.

Over at Hot Topic, Bryan Walker has posted his 19 January Waikato Times article following Environment Judge Newhook’s recent interim decision giving an “indication of a possible positive recommendation” to Crest Energy’s proposed marine turbine power generation project in the Kaipara Harbour (Crest Energy Kaipara Ltd v Northland Regional Council A132/2009).  There are high hopes for marine generation in New Zealand, and this decision is a notable step in that regard.

Crest’s consenting process hasn’t been all clear skies and calm waters. In June 2009, representatives of a Northland hapu of Ngati Whatua (Environs Holdings Ltd) brought judicial review proceedings to overturn an EC decision declining a stay or adjournment of the hearing of various EC appeals on the proposal.  A stay was sought to avoid prejudice to a pending claim under s33 of the Foreshore and Seabed Act that was anticipated if the EC proceeded with the appeal proceedings under the RMA.

The High Court gave the application reasonably short shrift, holding that the claimants could run their arguments (including concern at expected prejudice to rights that may be confirmed under the Seabed Act) in the RMA proceedings, also noting the EC’s role in relation to the restricted coastal activity consents needed for the marine turbine operation was recommendatory only. As with the Whangamata Marina case, the Minister of Conservation has the final say, a factor (the HC said) that “adds a safeguard to the process from the group claimants’ point of view”.

The EC appeal proceeded.  In the event, the Court was not ultimately swayed by extensive submissions and evidence on the part of Environs in opposition to the RCA consents, holding (amongst other matters) that Crest’s offer of a Memorandum of Understanding and proposed funding of a trust for environmental restoration in and around the Kaipara Harbour “can be seen to address aspects of cultural offence deriving from biological and physical degradation of past land and water management practices, and together with satisfactory conditions of consent addressing ecological and other biophysical matters, should, if those things are adequately addressed, amount to adequate provision for the matters the subject of Section 6(e).”

The EC has asked for more information on monitoring and the proposed conditions of consent, however all signs point to a positive final recommendation, once i’s are dotted and t’s crossed.

Turning to wider issues of energy policy, as Bryan notes, there are question marks around government priorities for renewable energy generation:

In the case of marine energy [the Government] has, admittedly, provided $8 million over a period of four years to support selected projects. But it committed $20 million over three years to gather seismic data in support of oil and gas exploration, and has extended tax exemptions for offshore exploration.…In a rational world we’d be more interested in finding ways of leaving it in the ground, knowing, as we now do, the fearful prospects ahead if we keep burning the stuff.  There’s still some priority-sorting needed at government level.

Even assuming Government gets on board, quite how the “priority-sorting” should best demonstrate itself is an interesting question in itself, as was seen in a rather different decision by another division of the Environment Court on another controversial renewable energy project – Meridian’s planned 176 wind turbine Project Hayes (Maniototo Environmental Society Inc v Central Otago District Council C103/2009).

In Maniototo an “All of Government” submission in support of the proposal under section 141A(4)(c) RMA was considered, the issues advanced on behalf of the Crown “duly assessed” and “had regard to”, but the Crown’s involvement in support “as an ‘other matter’ for the purposes of section 104(1)(c)” was ultimately not of sufficient moment to offset the concerns of the majority of the Court with impacts on landscape, and its assessment that Meridian had not sufficiently analysed relevant alternatives.

The Maniototo decision has been criticised for creating “a new test for projects to overcome which is unworkable; which will result in planning paralysis and in conflict between organisations wanting to advance separate projects”.  Meridian has appealed to the High Court, whose decision may well prove to be one of the more significant RMA judgments in 2010.

In the meantime, its hard to escape the view that clearer central Government direction on issues of national significance in the renewable energy arena – the kind of guidance that will not simply be relegated to ‘another matter’ to be thrown in the mix - is sorely needed.  Something like, say, a clear NPS on Renewables?  It can’t be far off, surely…

By Vernon Rive on 21/01/2010 3:45:14 p.m. | Comments (2) | Print

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I’m an Auckland based writer, researcher, lawyer and lecturer specialising in environmental, resource management and public law.  My particular interest is in the international law framework influencing domestic law and policy on climate change and biodiversity protection.  I'm the author of chapters on the International Framework, New Zealand Climate Change Regulation and Adaptation to Climate Change in the 2011 Lexis Nexis-published book Climate Change Law and Policy in New Zealand and the general editor of the Resource Management Bulletin.  I also lecture in Public, Resource Management Law and International Environmental Law at AUT Law School.