Supreme Court decision a blow for the climate
Friday 19 December 2008 - A serious blow has been dealt to the climate with a Supreme Court decision just handed down in the Genesis Energy/ Greenpeace case.
"The Supreme Court has ruled that local authorities cannot consider the climate impact of fossil-fuelled energy production can under the Resource Management Act (RMA)," said Greenpeace Campaign Manager Carmen Gravatt.
"This is very bad news for the climate; particularly because it comes on top of the Government's relentless backtrack on climate policy and aggressive promotion of coal and gas.
"It puts New Zealand seriously out of step with the rest of the world. Climate science shows we're running out of time to avoid dangerous climate change. The stakes are getting higher and New Zealand is not doing its bit."
Last December, the Court of Appeal ruled in favour of Genesis Energy (a State Owned Enterprise which runs several thermal power stations, and wants to build a new one at Rodney, in John Key's constituency of Helensville).
The ruling meant that councils deciding on non-renewable energy projects could not consider climate change under the RMA, hence removing a crucial legal control on polluters' greenhouse gas emissions.
The Court of Appeal said the RMA provides local authorities with the power to take into account the likely effects of climate change, but not to give consideration to the causes of climate change. This has helped pave the way for Genesis' proposed gas-fired power station at Rodney.
Greenpeace appealed the decision to the Supreme Court.
"This State Owned Enterprise (SOE) - whose shareholders are government ministers - used public money to remove critical legal protection for the climate in New Zealand irrelevant under the law," said Gravatt.
Gravatt said the fact Chief Justice Sian Elias dissented from the Supreme Court decision showed that the Greenpeace argument on the interpretation of the amendment had merit. "Of course we're disappointed that the majority disagreed with the Chief Justice, and this underlines the fact that not only was the law unclear, but that it must be amended urgently to protect the climate.
"The law as it now stands could allow millions of tonnes of greenhouse gases to be emitted without any regulatory consideration of their impact on climate change. This is a serious loophole in terms of climate protection."
Note to the Editor:
(1) The Court of Appeal ruling states that 'In considering the application by Genesis Power for a discharge permit relating to the discharge into the air of greenhouse gases associated with the proposed Rodney power station, the Auckland Regional Council must not have regard to the effects of that discharge on climate change.'
(2) The original High Court ruling, the effect of which Genesis wants reversed, involved fellow SOE Mighty River Power's plans to convert the Marsden B power station in Northland to run on coal.
The High Court ruled in favour of Greenpeace and against Mighty River Power by declaring that regional councils must take climate change into account for applications for discharge of greenhouse gases.
Mighty River Power filed an appeal of that decision to the Court of Appeal (which Genesis tried to join) but it was dropped when Mighty River Power abandoned the Marsden B proposal earlier this year, after a three year campaign against the project by Greenpeace and community groups.
Genesis then filed separate proceedings, and sought a declaration which would in effect reverse the High Court decision, saying such a declaration would help it gain resource consents for its Rodney power station. Genesis also runs Huntly power station, which is New Zealand's biggest single source of greenhouse gas emissions.
What exactly did Genesis seek?
Genesis asked the Court of Appeal to declare that, when a permit to discharge greenhouse gases is sought and the project doesn't involve renewable energy, 1) authorities do not have to consider the effects of the greenhouse gas emissions on climate change 2) the benefits of renewable energy and climate protection are not relevant considerations, and 3) regional councils may not make rules that have regard to climate change.
How do Genesis' actions tie in with the RMA?
The Resource Management Act (RMA) was amended in 2004 to affect regional councils' ability to directly manage and regulate greenhouse emissions. But Greenpeace argued in the High Court that the RMA still provides for climate change to be considered through the benefits of renewable energy development in reducing climate change emissions. The High Court decision confirmed that it does.
October 2004 - Mighty River Power lodged an application with Northland Regional Council for resource consent to refire Marsden B power station on coal.
October 2005 - Greenpeace and other community groups lodged an appeal to the Environment Court.
February 2006 - Mighty River Power submitted to the Environment Court that climate change could not be considered in the overall appeal.
July 2006 - The Environment Court made its decision regarding the relevance of climate change to the overall appeal, finding that climate change is not a relevant consideration that can and must be taken into account when approving Marsden B.
August 2006 - Greenpeace appealed the decision on climate change to the High Court.
October 2006 -The High Court overturned the Environment Court decision and said that climate change does need to be considered.
November 2006 - Mighty River Power challenged the High Court decision to the Court of Appeal. Genesis Energy indicated their interest in joining the appeal on Mighty River's side, and after failing in an attempt to join in the High Court, applied in the Court of Appeal to join as a party to the proceedings, but their application was never heard.
March 2007 - Mighty River Power abandoned its coal plans at Marsden B and withdrew its resource consent application and its appeal to the Court of Appeal.
May 2007 - Genesis Energy filed new legal proceedings against Greenpeace in an attempt to have the effect of the High Court ruling protecting the climate reversed.
September 2007 - Auckland Regional Council (ARC) join the appeal, stating that national standards need to be developed to provide guidance on how consent authorities should deal with climate change issues. Such national standards would help regional councils apply the RMA in cases involving greenhouse gases.
October 2007 - Genesis, ARC and Greenpeace appeared in the Court of Appeal
December 2007 - The Court of Appeal ruled in favour of Genesis Energy.
February 2008 - Greenpeace granted leave to appeal the Court of Appeal decision at the Supreme Court
28 May 2008 - Genesis and Greenpeace appear in the Supreme Court
19 December 2008 - ruling handed down in favour of Genesis