Amidst the uncertainty surrounding the closing stages of the first Kyoto commitment period (2008-2012), a recent Environment Court declaration has again confirmed that in New Zealand there is no question that the responsibility of dealing with the effects of climate change falls squarely on the shoulders of central government.
Acting Principal Environment Judge Newhook considered two opposing applications for declarations regarding whether or not, in the context of a resource consent application for coal mining operations, regard can be had to effects of greenhouse gases ("GHG") arising from the subsequent combustion of the coal on climate change.1 The applications by Buller Coal, Solid Energy and West Coast Environment Network Incorporated followed appeals against the granting of consents for the Escarpment mine and the closing of submissions on the applications for the Mt William North mine project. The mines are expected to produce approximately 8.4 million tonnes of marketable coal combined, all of which is likely to be exported and used overseas.
The parties agreed that section 104E of the RMA is not relevant in this case given that the two resource consent applications are for mining activities and do not involve applications for discharge permits. Section 104E provides that the decision maker must not have regard to the effects of the discharge on climate change except to the extent that the use and development of renewable energy enables a reduction in the discharge of GHG. As noted by the Supreme Court in the leading case of Genesis Power Ltd v Greenpeace New Zealand Inc,2 the underlying policy of the 2004 amendments to the RMA was to require the negative effects of greenhouse gases causing climate change to be addressed on a national level, not a local one.
In the present case, West Coast ENT argued that sections 5, 7(i) and 104(1) of the RMA can be interpreted to permit local authorities to determine applications concerning the extraction of coal by reference to effects on climate change. However, Judge Newhook did not accept that there was "any ambiguity, uncertainty, or room for discretion or "choice" in the interpretation of the words and policy of the provisions" of the RMA. The 2004 Amendment Act pointed "strongly to a finding that regulatory activity on the important topic of climate change is taken firmly away from regional government" and instead is to be conducted by central government. Consequently, the effects of GHG emissions on climate change are not relevant to applications for coal extraction (whether they involve air discharge applications or not).
The Buller Coal declaration decision highlights the differences in the way climate change issues are being dealt with here and across the Tasman. In a recent decision involving applications to extend an existing coalmine,3 the New South Wales Land and Environment Court considered whether an offset condition should be imposed to address the effects of GHG emissions from the coal mining operations. The appellant's argument that the effects generated by the subsequent burning of the coal should also be addressed was dropped during the course of the proceedings and so not considered by the Court. However, the Court did impose a condition requiring offsetting of the direct GHG emissions above a certain level but noted that the condition provided some flexibility as to how that offsetting was to occur given that a carbon pricing scheme is not yet in place in Australia. Interestingly, the Court seemed willing to impose an offset condition even when part of the effects being offset were to occur outside NSW.
Obviously the Australian decision was decided against a different legislative background and in the absence of a national emissions trading scheme. However, it will be interesting to see how both the New Zealand and Australian governments choose to strike the balance between addressing GHG emissions at a local and national level in the future.