Royal Forest and Bird Protection Society of New Zealand Incorporated v Buller Coal Ltd

JurisdictionNew Zealand
CourtHigh Court
JudgeWhata J
Judgment Date24 Aug 2012
Neutral Citation[2012] NZHC 2156
Docket NumberCIV 2012-409-000972

[2012] NZHC 2156

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV 2012-409-000972

Between
Royal Forest and Bird Protection Society of New Zealand Incorporated
Appellant
and
Buller Coal Limited
First Respondent

and

Solid Energy New Zealand Limited
Second Respondent
And Between
West Coast Ent Incorporated
Appellant
and
Buller Coal Limited
First Respondent

and

Solid Energy New Zealand Limited
Second Respondent
Counsel:

T Bennion and P D Anderson for Royal Forest and Bird Protection Society

D M Salmon for West Coast ENT Inc

J E Hodder and B G Williams for Buller Coal Limited

M R Christensen and S Hutchings for Solid Energy Limited

J M van der Wal for Buller District Council and West Coast Regional Council

Appeal against the making of a declaration by the Environment Court that greenhouse gas emissions were not a relevant consideration under s104 Resource Management Act 1991 (consideration of applications — actual and potential effects on the environment) when deciding whether to issue a resource consent — the Court said that the Resource Management (Energy and Climate Change) Amendment Act 2004 removed regulation of climate change from local authority control — respondents operated coal mines — whether the 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.

Held: The assessment of effects under s104(1)(a) in this case did not include consideration of the effects on climate change of the discharge of greenhouse gases from the end use of coal. The express purpose of the Amendment Act was to require 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. It achieved that purpose by specifically removing the power from regional councils to consider effects on climate change of greenhouse gas emissions, except in accordance with a national environmental standard. Hence regional councils were now prohibited from considering such effects at the formative rule making stage as well as at the evaluative resource consenting stage pending the promulgation of a relevant standard. The unambiguous policy of those amendments was to secure coherent regulation of greenhouse gas emissions at a national level and subject to national instruments.

While s104(1)(a) RMA was not literally subject to an amending enactment, it was subject to the scheme of the RMA, as amended by the Amendment Act. The statutory function of allowing or controlling the discharges of contaminants to air rested in the Minister and/or regional councils by virtue of the combined effect of s15 RMA (discharge of contaminants), s30 RMA (functions of regional councils under this Act), s66 RMA (Matters to be considered by regional council — plans) and s68 RMA (regional rules). No regional rule could control or require consent for a discharge into air of greenhouse gases solely for its effects on climate change, except in accordance with a national environmental standard. There was no other express method by which a local authority could require consent for those discharges. The jurisdiction therefore to consider the effects of air discharges under s104(1)(a) must be implied and collateral to the exercise of other local authority functions. Given the unambiguous policy of the Amendment Act, the Court would be slow to imply any such collateral jurisdiction.

Jurisdiction under s104(1)(a) RMA was limited to assessing the actual and potential effects of “allowing the activity”, in this case coal extraction. Industrial discharge of contaminants, including greenhouse gases to air caused by the end use of coal, would not be allowed by the grant of the land use consent. Those discharges would either need to be allowed by an environmental standard, a regional plan rule or by separate air discharge resource consent. The effects of those discharges were irrelevant to the s104(1)(a) RMA assessment of the application to extract coal, unless that extraction involved a discharge.

Section 7(i) RMA did not derogate from the policy of the Amendment Act. It could be read sensibly in harmony with that policy, as it was directed to the consequences of climate change, not to the effects on climate change. The reach of s 7(i) could not be extended to include the effects on climate change of discharges of greenhouse gases from coal use for the same reasons as in relation to s104(1)(a). The legislative frame, as amended by the Amendment Act, made it plain that consideration of those effects had to await the introduction of a national environmental standard.

The issue with overseas discharges of greenhouse gases from the use of coal extracted in NZ was more complex. Such discharges could not be subject to national environmental standards, with the result that unless regulated at the point of extraction, they would not be subject to assessment under the rubric of sustainable management. Given the global reach of climate change effects, as evident from s7(i), it could not be said that the adverse effects of greenhouse gases on climate change were irrelevant to the exercise of functions under the RMA. Nor were coal mining participants required to surrender units for carbon dioxide emissions from burning of exported coal. Coal mined would probably result in subsequent discharge of carbon dioxide from the combustion of coal. An interpretation therefore that best secured sustainable management would presumptively favour, in the unusual circumstances of this case, assessment of those effects under s104(1)(a).

The short answer might be that such effects were simply too remote. But there was a more fundamental objection. The central question remained whether the discharges and their effects were subject to the jurisdiction of a local authority. Section 15 RMA did not apply outside of NZ's territorial boundary; there was no remit to require consent for overseas discharges.

The Amendment Act had removed the jurisdiction of local authorities to consider the effects on climate change of the discharge of greenhouse gas emissions from the end use of coal until a national environmental standard addressing those emissions was produced. Consenting authorities could not have regard to the effects on climate change of discharges into air of greenhouse gases for the purpose of an assessment of a land use consent under s104(1)(a) RMA except as provided by a national environmental standard or by a rule in a regional plan subject to such a standard. Section 7(i) RMA did not derogate from the policy of the Amendment Act.

The question as to whether diffuse, non point emissions of greenhouse gases were amenable to district level control was to be left open. Given that such emissions were not normally subject to rules requiring consent, it might be available to contend that the policy of the Amendment Act was not infringed. But that would depend on the facts of the particular case and the policy framework under consideration. Similarly, whether the beneficial effect of land use management might be relevant was something that would need to be determined in light of the facts and policy frame under specific consideration.

Appeal dismissed. Declaration confirmed.

JUDGMENT OF Whata J

1

Buller Coal Limited (“BCL”) and Solid Energy New Zealand Limited (“Solid Energy”) mine coal. The Royal Forest and Bird Protection Society 1 and West Coast ENT Incorporated (“West Coast ENT”) are advocates for the environment. They oppose coal mining proposals by Solid Energy and BCL because the coal produced when burnt will omit more than 20 Mt of CO 2 in total. CO 2 is a greenhouse gas. Declarations were sought in the Environment Court as to whether the effect of the combustion of this coal on climate change is a relevant consideration under s 104(1)(a) of the Resource Management Act 1991 (“RMA”). That section states:

104 Consideration of applications

(1) When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2, have regard to–

(a) any actual and potential effects on the environment of allowing the activity; …

2

The Environment Court said, in short, that it was not a relevant consideration, because the Resource Management (Energy and Climate Change) Amendment Act 2004 removed regulation of climate change from local authority control. 2 The key issue before me is whether the Environment Court was correct.

The issues
3

The appellants identified the following questions of law to be resolved:

Whether or not, when considering Buller Coal Limited's applications 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 the subsequent discharges into air from the combustion of the coal will have towards climate change; and

  • b) under section 7(i) have particular regard 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.

4

BCL and Solid Energy seek confirmation of the following declaration: 3

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 on those consents, either where:

  • (a) any discharge...

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5 cases
  • West Coast Ent Incorporated v Buller Coal Ltd
    • New Zealand
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    ...Re Buller Coal Ltd [2012] NZEnvC 80 , [2012] NZRMA 401. 2 Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 2156 , [2012] NZRMA 3 West Coast ENT Inc v Buller Coal Ltd [2012] NZSC 107 . 4 Resource Management Act 1991, s 3. 5 Section 3. 6 At [17]. 7 At ......
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