Coal mining companies can proceed on a much firmer basis now that the Environment Court has declared that climate change impacts from burning coal are outside the ambit of the Resource Management Act (RMA) consenting process.

Buller Coal Limited (a subsidiary of Bathurst Resources) and Solid Energy New Zealand Limited together sought the declaration as both have resource consent applications in train for proposed coal mines on the West Coast of the South Island.  

Buller Coal was granted consent by the Buller District and West Coast Regional Councils for the Escarpment Mine in August 2011 but West Coast ENT and Forest & Bird have appealed that decision. Solid Energy has an application before the councils now.  

The decision

The case hinged around section 104E of the RMA. This was inserted as part of the 2004 amendments to the Act by the National Government and provides that, when considering an application to discharge greenhouse gases, a consent authority “must not have regard to the effects of such discharge on climate change” – except to the degree that the use and development of renewable energy would enable a reduction of greenhouse gases.

The Court dismissed arguments from West Coast ENT and Forest and Bird that climate change effects should be considered, saying:  

“I consider, as I did in Greenpeace New Zealand Inc v Northland Regional Council, that the whole of the Amendment Act, but particularly section 3, point strongly to a finding that regulatory activity on the important topic of climate change is taken firmly away from regional government and made the subject of appropriate attention from time to time by central government by way of activity at a national level”.

Chapman Tripp comments

Chapman Tripp represented Buller Coal in these proceedings and welcomes the Court’s clear and consistent application of the law in this area.  

The decision will allow coal mining companies like Buller Coal to proceed with their plans without the introduction into the consenting process of irrelevant arguments and evidence about the threat posed by climate change.  

If New Zealand is to develop its mineral resource, investors need to have the confidence to invest.