Re Buller Coal Ltd

 
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Decision No. [2012] NZEnvC 80

BEFORE THE ENVIRONMENT COURT

Court:

Acting Principal Environment Judge LJ Newhook sitting alone pursuant to s279 of the Act

(ENV-2012-AKL-00045)

(ENV-2012-AKL-00047)

In the Matter of two Applications for Declaration under s 311 of the Resource Management Act 1991

Between
Buller Coal Limited and Solid Energy New Zealand Limited
Joint First Applicants

and

West Coast Ent Incorporated
Second Applicant
Counsel:

JE Hodder SC and B Williams for Buller Coal Limited

MRG Christensen for Solid Energy NZ Limited

Rt Hon Sir Geoffrey Palmer for West Coast ENT

T Bennion and PD Anderson for Royal Forest and Bird Protection Society Inc

JM van der Wal for Buller District Council and West Coast Regional Council

Applications by first applicant coal mining companies for declaration under s311 Resource Management Act 1991 (“RMA”) (application for declaration) that while granting consent for coal mining activities and land use, councils need not have regard to climate changes caused by greenhouse gas discharges arising from combustion of coal extracted under the consent — application by second applicant environmental group for converse declaration that greenhouse gas emissions be considered — effect of Resource Management (Energy and Climate Change) Amendment Act 2004 — whether regard to be had to the effects on climate change caused by discharges of greenhouse gases — whether s7(i) RMA (regard to the effects of climate change) and s104(1)(a) RMA (regard to any actual and potential effects on the environment of allowing the activity) could be interpreted so as to require the local authorities to consider applications concerning extraction of coal by reference to effects on climate change.

Held: West Coast ENT was wrong to dismiss the applicability of the Greenpeace decision on the simple basis that the case engaged s104E RMA (applications to discharge greenhouse gases) and the present case did not as no application had been made to discharge greenhouse gases. The case established that the purpose of s3(b) RMECCA (local authorities to plan for climate change but not to consider effects of discharges into air of greenhouse gases) qualified the high-level, general, and overarching provisions of s5 RMA (purpose – sustainable management of resources). There was no ambiguity, uncertainty, or room for discretion or “choice” in the interpretation of the words and policy of the provisions of the RMECCA. It explicitly removed the ability of regional councils to control the emissions of greenhouse gases for climate change reasons.

As a result, the Councils were only able to deal with the consequential effects of climate change, such as potential increase in flood risk or rises in sea levels, but not the causative effects of particular activities on climate change. Section 3 RMECCA strongly pointed to a finding that regulatory activity on climate change was taken away from the regional government and made the subject of appropriate attention by the central government ( Greenpeace).

Section 7(i) RMA and s104(1)(a) RMA could not be interpreted to cut down the clear underlying policy of RMECCA so as to permit or even require local authorities or the Environment Court on appeal to determine applications concerning extraction of coal (with or without applications for permits to discharge greenhouse gases) by reference to effects on climate change.

Declaration sought by the joint first applicants granted. Declaration sought by the second applicant refused.

DECISION OF THE ENVIRONMENT COURT ON APPLICATIONS FOR DECLARATION

A. Declaration sought by the joint first applicants, granted.

B. Declaration sought by the second applicant refused.

C. Costs reserved.

Introduction
1

The joint first applicants have, at various stages in the system, applications in train seeking Regional and District consents in connection with coal mines they propose on the West Coast of the South Island.

2

Consent was granted to Buller Coal Limited in August 2011 by independent hearing commissioners appointed by the Councils. West Coast ENT and Forest & Bird appealed that decision, and a hearing before the Court seems in prospect.

3

Solid Energy currently has its application before the councils.

4

Buller Coal and Solid Energy applied on 12 March 2012 for the following declaration:

In considering BCL's applications for consents for coal mining activities at the Escarpment Mine, including applications for land use, and Solid Energy's applications for consents for coal mining activities at the Mt William North mining area, including applications for land use, but neither including any applications to discharge contaminants to air from the combustion of coal to be mined, the decision maker cannot have regard to the effects on climate change of discharges into the air of greenhouse gases arising from the subsequent combustion of the coal extracted in reliance of those consents, either where:

  • a. any discharge of greenhouse gases associated with the end use of the coal occurs outside New Zealand territorial boundaries;

    or

  • b. any discharge of greenhouse gases associated with the end use of coal occurs in New Zealand.

5

Contemporaneously, West Coast ENT applied for the following:

In considering Buller Coal Limited's application for consents for coal mining activities at the Escarpment Mine including applications for land use, the decision maker must:

  • a. Under section 104(1), consider the contribution that these subsequent discharges into air from the combustion of the coal will have towards climate change;

  • b. Under section 7(i), have particular regards to the effects of climate change, including the contribution that the subsequent discharges into air from the combustion of the coal will have towards the effects of climate change.

6

The application for Declaration by the second applicant is almost the converse of that made by the joint first applicants.

7

The second applicant recorded brief grounds in support of its application. The joint first applicants did not.

8

The issue to be considered was essentially quite confined, albeit that the submissions presented by all parties were extensive. It is essentially as to whether a decision maker under the Act can have regard to effects on climate change of discharges into the air of greenhouse gases arising from the subsequent combustion of the coal extracted in reliance on those consents, whether such discharges occur within New Zealand or elsewhere in the world, it essentially being the proposal of each of the joint first applicants to export the coal to other countries for burning in the manufacture of steel.

9

The joint first applicants relied strongly on certain findings in a decision of the Supreme Court in 2008, Greenpeace New Zealand Incorporated v Genesis Power Ltd.1 That decision followed a line of decisions of the Environment Court, the High Court, and the Court of Appeal, commencing with a decision of my own Greenpeace New Zealand Inc v Northland Regional Council2 and in which the decisions of the Environment Court and the Court of Appeal were largely upheld by the decision of the majority in the Supreme Court.

10

The second applicant and Forest & Bird submitted strongly that the present circumstances must be distinguished from the findings in the Greenpeace line of decisions.

11

In mid-February I conducted a conference of the parties, and obtained their agreement that they would file a statement of agreed facts and assumptions concerning the declaration applications. They lodged one on 7 March. It is commendably succinct, and I set it out as follows:

1
    Buller Coal Limited (“BCL”), Solid Energy New Zealand Limited (“Solid Energy”), Buller District Council, West Coast Regional Council, Royal Forest and Bird Protection Society Incorporated (Forest and Bird) and West Coast ENT Incorporated (“West Coast ENT”) agree to the following statement of fact and assumptions. Escarpment Mine 2. On 26 August 2011, independent commissioners appointed by the West Coast Regional Council and the Buller District Council granted consents to BCL associated with the construction and operation of an open cast mine on the Denniston Plateau (“the Escarpment Mine”). The consents granted included a land use consent to mine coal and associated land disturbance activities. 3. West Coast ENT and Forest and Bird appealed1 that decision on grounds including that the Commissioners erred in not having regard to the effects of the Escarpment Mine applications on climate change. 4. The resource consents, if upheld on appeal, will authorise BCL to remove up to 6.1 million tonnes of coal on the Denniston Plateau over a period of 5–12 years. The coal is intended to be exported to customers in India and China for use in the steel manufacturing industry. 5. BCL's applications are set out in Schedule A and include applications for land use consents for coal mining and associated activities. BCL was not required to and did not apply for a discharge permit relating to the discharge of greenhouse gases. Mt William North Mine 6. On 12 December 2011, Solid Energy lodged with the West...

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