The High Court has recently confirmed that the downstream effects of the combustion of the coal on climate change are legally irrelevant when assessing land use applications to mine coal under the Resource Management Act 1991 (RMA).
Royal Forest and Bird Protection Society of New Zealand Incorporated and West Coast Environmental Network applied to the Environment Court in March this year for declarations relating to coal mining proposals by Buller Coal Limited. The applicants argued that the effects of the CO 2 that would ultimately be released on the burning of the coal overseas should be taken into account under section 104(1)(a) of the RMA during the consideration of the land use consent applications for the mining operations. Counsel for the environmental groups argued that section 104(1)(a) does not contain a prohibition on considering the downstream impacts of coal combustion, and that in fact these effects should be mandatory relevant considerations.
In a previous decision on an application by Greenpeace, the Supreme Court had addressed whether CO 2 emissions should be considered when a consent authority processed an air discharge consent. The Court decided that Parliament intended climate change effects from such projects to be regulated at the national level and not on a case-by-case basis by regional councils when assessing discharge permit applications. The Court, however, did not specifically turn its mind to land use consent applications, and its decision had been informed by section 104E of the RMA, which specifically prevents a decision maker from having regard to the effects of an air discharge on climate change.
The Environment Court declined the Forest & Bird application, a decision that was upheld by Whata J in the High Court on appeal. Justice Whata found that the same reasoning applied for land use consents as for discharge consents. He concluded that overseas discharges and their effects were not subject to the jurisdiction of a local authority under the RMA and that it would be "palpably unattractive" for councils to attempt to apply sustainable environmental policy in foreign jurisdictions.
Interestingly, Justice Whata left open the question of whether diffuse, non point emissions of greenhouse gases are "amenable to district level control", these not usually being subject to rules requiring resource consent. Similarly, the Court did not close the door on the beneficial effects of land use management being considered, depending on the facts and the specific policy framework under consideration.
The West Coast Environmental Network was recently granted leave to appeal the High Court's decision to the Court of Appeal. Further, the 2011 decision to grant the resource consents for the mine has been appealed to the Environment Court, with the hearing scheduled to begin in the week of 29 October 2012.