Resource Management Act

The Resource Management Act is discussed in detail elsewhere on this website. This section focuses on the Resource Management Act and Climate Change. The RMA is the primary legislative scheme concerned with the adaption and readying communities to face climate change. The role of RMA in climate change mitigation is focused not on prohibiting greenhouse gas polluters, but on promoting renewable energy generation. The connection between RMA and renewable energy is addressed in the renewable energy section of this website.

Climate Change is specifically referred to in the principles of the RMA. ³⁷²³  All persons exercising functions and powers under the RMA, in relation to managing the use, development, and protection of natural resources, shall have particular regard to the effects of climate change. This requirement is directed at adapting to the effects of climate change, rather than mitigation of the causes of climate change (i.e. greenhouse gas emissions). ³⁷²⁴  Local authorities consider this principle when preparing policy statements and plans and when considering resource consent applications. The Ministry for the Environment produces guidelines which local authorities may utilise when considering the effects of climate change.

The RMA also contains a number of matters relevant to renewable energy, and therefore indirectly to climate change. These are addressed in the renewable energy section of this website.

The RMA limits the ability of local authorities to consider the effects of climate change when preparing rules to control discharge into the air of greenhouse gases and considering resource consent applications for a discharge permit or coastal permit. 

Section 70A of the RMA states:

… when making a rule to control the discharge into air of greenhouse gases under its functions under section 30(1)(d)(iv) or (f), a regional council must not have regard to the effects of such a discharge on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases, either—

(a) in absolute terms; or
(b) relative to the use and development of non-renewable energy.

Section 104E of the RMA states:

When considering an application for a discharge permit or coastal permit to do something that would otherwise contravene section 15 or section 15B relating to the discharge into air of greenhouse gases, a consent authority must not have regard to the effects of such a discharge on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases, either—

(a) in absolute terms; or
(b) relative to the use and development of non-renewable energy

These provisions are intended to clarify that regional councils do not have the power to control greenhouse gas emissions through regional plans and resource consents. Instead, greenhouse gas emissions are to be addressed at a national level. ³⁷²⁵

Consents and conditions must follow any national environmental standard to control the effects of climate change of the discharge into the air of greenhouse gases. This amendment was to avoid having Regional Councils arriving at different standards around New Zealand and to avoid double regulation. However, no such national environmental standard has ever been promulgated. There have been a line of cases considering section s70A and/or 104E. 

In Greenpeace New Zealand v Northern Regional Council ³⁷²⁶  Mighty River Power Ltd applied for resource consent to operate a coal-fired electricity generation plant at Marsden Point near Whangerei. Greenpeace appealed the decision of the Northern Regional Council to grant consent to the operation on the grounds that insufficient consideration had been given to the potential effects on climate change. Mighty River Power argued that the Act precluded consideration of the effects of greenhouse gas emissions on climate change. Mighty River Power was successful in the Environment Court. Greenpeace appealed to the High Court. The High Court held that Section 104E enabled a consent authority to balance a proposed non-renewable energy activity alongside a renewable energy proposal. Therefore, a regional council could consider the effects of greenhouse gas emissions on climate change in the context of an application for a non-renewable energy activity.

This decision was followed by Greenpeace New Zealand v Genesis Power ³⁷²⁷ .Genesis Power proposed to build a gas-fired electricity plant in Rodney, north of Auckland. Genesis Power sought various declarations from the Court of Appeal to clarify the interpretation of Section 104E. The Court of Appeal rejected the approach taken in Greenpeace v Northland Regional Council above. The Court of Appeal found that consideration of the negative effects of greenhouse gas emissions on climate change from a proposed development would constitute a duplication of effort between national and regional government, contrary to the clear legislative intent to nationalise management of greenhouse gases. Section 104E means a consent authority could only consider the effects of greenhouse gas emissions on climate change in the case of a resource consents application for a renewable energy development. Greenpeace appealed to the Supreme Court, who affirmed the decision of the Court of Appeal.

West Coast Ent Inc v Buller Coal Ltd ³⁷²⁸  concerned an application for mining on the Denniston Plateau on the West Coast. The granting of resource consent was appealed to the Supreme Court on the basis that the end use of the coal would result in greenhouse gases emissions as coal was ultimately destined for export to China and India to be utilised in steel manufacture. The majority of the Supreme Court held that sections 70A and 104E applied not just to the direct discharge of greenhouse gas emissions, but also to activities which facilitated or indirectly resulted in such discharges.

Background 

Buller Coal Limited (“Buller Coal”) and Solid Energy Limited (“Solid Energy”) applied for resource consents to extract coal on and around the Denniston Plateau in Westland. The applications were opposed by West Coast ENT Incorporated (“West Coast ENT”) and the Royal Forest and Bird Protection Society of New Zealand Inc (“Forest and Bird”).

Due to provisions in the Buller District Plan, the effects the territorial authority could take into account when considering consents to mine coal are those set out in the District Plan. Those effects do not include the effect of discharges of greenhouse gases on climate change.

However, in order to extract coal, Buller Coal and Solid Energy require consents for ancillary mining activities such as roading and the taking, diverting and use of water. West Coast ENT and Forest and Bird argued that the effects of climate change can be considered to be an effect under section 104(1)(a) of the Resource Management Act 1991 (“the RMA”) for the purposes of those ancillary resource consents.

In order to avoid potentially lengthy and expensive debate, all parties applied to the Environment Court for declarations concerning whether such effects could be considered by territorial and regional authorities.

The Environment Court judgment 

In the Environment Court, Judge Newhook granted the declarations sought by Buller Coal and Solid Energy. His Honour placed significance on the Resource Management Amendment Act 2004 (“the 2004 Amendment Act”). Section 3 provides that the purpose of the Amendment Act is to amend the Resource Management Act 1991 so as to require local authorities to plan for the effects of climate change but not to consider the effects of greenhouse gas discharges on climate change. The Act explicitly removes the ability of councils to control emissions. Instead, they are to be managed in accordance with the national Emissions Trading Scheme.

The Court relied on the Supreme Court decision in Greenpeace New Zealand Incorporated v Genesis Power Ltd which states that the Resource Management Act 1991 must be understood in light of the purpose of the Amendment Act. It follows that the section 5 purpose of promoting sustainable management of natural and physical resources is qualified by section 3 of the Amendment Act.

Section 104(1)(a), where the consent authority can consider any actual or potential effects on the environment of allowing an activity, and section 7(i), where a decision maker shall have particular regard to the effects of climate change, are no cause for confusion either. The Court found that these provisions cannot be interpreted to "cut down" the clear purpose of section 3 of the Amendment Act by allowing a decision maker to consider the effects of any resource consent for coal mining on climate change.

Following that decision, West Coast ENT and Forest and Bird both appealed to the High Court.

The High Court judgment 

Justice Whata dismissed the appeal based on five grounds:

1. The policy underlying the 2004 Amendment Act as set out by Judge Newhook;
2. Section 104(1)(a) of the RMA, prevents local authorities from controlling discharge to air of greenhouse gases.
3. The discharge of carbon dioxide as a result of burning coal in New Zealand is irrelevant to whether consents should be granted for coal extraction because:
   a.   The burning of the coal is not itself the “activity” for which consent is sought; and
   b.   Such burning will need to be allowed by a national environment standard, a regional plan rule or a discharge to air resource    consent from a downstream user;
4. The use of consents to control the discharge to air of greenhouse gases would undermine the methods preferred by Parliament to control greenhouse gas discharges; and
5. District Councils could still use urban planning and transportation strategies to mitigate the climate change effects of greenhouse gas emissions.

Justice Whata then turned to address the issue of overseas discharges. Discharges of greenhouse gas from coal mined in New Zealand but combusted overseas cannot be subject to national environment standards since there is no jurisdiction. Those discharges and their effects are not subject to the jurisdiction of a local authority. His Honour admitted that this appears to be contrary to the idea of sustainable management, but local authorities have no way of applying sustainable management principles to overseas jurisdictions.

A more detailed analysis of Justice Whata’s decision can be found here.

Following Justice Whata’s dismissal of the appeal, the Environment Court delivered an interim judgment granting the necessary consents to Buller Coal subject to conditions which have yet to be finalised.

The Supreme Court judgment

The majority judgment

The majority of the Supreme Court agreed with the statutory interpretation undertaken by Justice Whata.

The majority of the Supreme Court considered that even if climate change could be taken into account, the effects were too indirect. The climate change effects of burning coal are irrelevant to the ancillary mining applications Buller Coal and Solid Energy seek. The eventual burning of coal overseas is not closely associated with, for instance, the construction of a road on the West Coast.

The effects of burning coal were also thought to be to be too intangible. Buller Coal and Solid Energy aim to produce coal to meet an existing market. If they do not supply coal, overseas manufacturers will presumably obtain coal from other suppliers. Whatever happens in New Zealand, those manufacturers will continue to emit greenhouse gases. Furthermore, it would be difficult and probably impossible to show that the burning of coal from West Coast mines would have any perceptible effect on global climate change.

The minority judgment

In her dissenting judgment, the Chief Justice considered that the targeted and partial exclusion of the effects of climate change in the 2004 Amendment Act is limited to local authority regulation of and consent to the discharges of greenhouse gases into air. However, the current proceeding did not include an application for discharges into air, so do not come within the exclusion of the 2004 Amendment Act. Her Honour considered that the scheme of the RMA did not constrain the meaning of any “adverse effect of the activity for which consent is sought”. Effects can only be excluded by a national environmental standard. There is no applicable environmental standard in this case.

Chief Justice Elias did not think the effects on climate change were too remote or indirect. Her Honour observed that the RMA allows the effects of an activity on climate change to be considered when the use of renewable energy permits a reduction in the discharge of greenhouse gases into air. Her Honour also thought that even if the emissions from burning coal from one mine were minimal, they contributed to a wider global effect. That is precisely the sort of cumulative effect that the Act permits to be taken into account.

Conclusion

It was held that that a purposive interpretation of s 104(1)(a), read in the context of the statute as a whole (including especially amendments in 2004 to remove climate change as a concern of regional councils when in planning for or in consenting to discharges of greenhouse gases) precluded consent authorities from taking into account the climate change effects resulting from the end use of coal mined when considering applications for resource consents for the mining activities.

The Court states at paragraph 172: “we are satisfied that it in s 104(1)(a), the words “actual or potential effects on the environment” in relation to an activity which is under consideration by a local authority do not extend to the impact on climate change of the discharge into air of greenhouse gases that result indirectly for that activity”. The majority held there was clear legislative policy that addressing effects of activities on climate change lie outside the functions of regional councils and, a fortiori, territorial authorities.  At paragraph 175: “it is not open to territorial authorities and regional councils to regulate activities by reference to the effect on climate change of discharges of greenhouse gases which result indirectly from such activities”.

The majority was influenced in this conclusion by the purpose of the 2004 Amendment Act in removing consideration of climate change effects in respect of consents for discharges to air of greenhouse gases and considered such purpose would be subverted if climate change considerations were relevant to resource consents because the end use of the mineral obtained under the consents would result in the release of greenhouse gases. The majority was also influenced in its conclusion by the fact that climate change was not an effect in respect of which the Council had reserved controls in the District Plan over the restricted discretionary consent required for mining itself.

The declarations made in the Environment Court and upheld by the High Court were properly made. Accordingly, the appeal has been dismissed.

Last updated at 7:49PM on February 19, 2018