19 September 2013 – Wellington

Forest & Bird media release for immediate use

Court decision highlights how climate change must be factored into RMA decisions

Forest & Bird says today’s decision by the Supreme Court - that it isn’t necessary for local authorities to factor climate change impacts into decisions to grant resource consents on projects that will generate greenhouse gases - reflects a failing of the Act that must be corrected by a law change.

The Court has found against West Coast Ent, in a case brought in 2012, to which Forest & Bird was a party. The West Coast Ent asked whether the climate change-related consequences of burning the coal that would be mined from Bathurst Resource’s planned mine on the Denniston Plateau, and from Solid Energy’s planned mines on the nearby Stockton, should have been factored into the decision to grant the respective companies their resource consents.

“We agree with the minority view of Chief Justice Dame Sian Elias, who concluded that the effects of climate change should be considered.* However, this view was not shared by the remaining judges,” says Forest & Bird Advocacy Manager Kevin Hackwell.

“A critical shortcoming in the RMA legislation has been exposed by this case. It’s a shortcoming that will become more and more apparent as the effects of climate change are felt more keenly in our economy, and by other economies around the world.

“The RMA does state that the effects of climate change should be considered. But there is no mechanism in the legislation that allows that to happen during the consenting process.

“If the climate impacts of a huge coal mine on Denniston haven’t been considered by this stage, it now appears they never would be,” says Kevin Hackwell.

“How a development will contribute towards the massive problem of climate change should be considered in all RMA decisions.

“It will be much better to do this now than pretend there’s no problem and incur the far higher costs of responding to climate change impacts down the track,” says Kevin Hackwell.

The Denniston Plateau, which is publically-owned conservation land, is rated by the Department of Conservation as one of the top-50 most ecologically valuable sites on New Zealand’s mainland.

Forest & Bird is New Zealand's largest independent conservation organisation, with 50 branches nationwide. It protects our native plants, animals and wild places, on land and in our oceans.

From page 3 of the Supreme Court’s decision:

• [4] For the reasons that follow I am unable to agree. I consider that the targeted and partial exclusion of effects on climate change adopted by the 2004 Amendment Act is limited to local authority regulation of and consents to the discharges of greenhouse gases into the atmosphere. No such regulation or consent was in issue here. The activities for which consent was required did not include the discharge of greenhouse gases into the atmosphere. Nor do I accept that the scheme of the Act by necessary implication imposes a wider exclusion of the considerations under s 104(1)(a) than is provided in the text of the statute. As s 104(2) makes clear, assessment of any “adverse effect of the activity for which consent is sought” is part of the s 104(1)(a) consideration. Such an adverse effect may be excluded if a national environmental standard “permits an activity with that effect”. No national environmental standard has been made which authorises the adverse effect relied on by the appellants.

• [5] I would allow the appeal and set aside the declarations made. I would want to hear further from the parties before making the declaration to the opposite effect in the terms proposed by West Coast ENT. Since mine is a minority position, that course is unnecessary.

ENDS

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