Climate change update

Parliament’s Environment Committee (Committee) recently reported back on the Resource Management Amendment Bill (Bill).  The Committee recommended by majority that the Bill be passed but with some amendments.  In this article we focus on the Committee’s recommended amendments addressing the relationship between the Resource Management Act 1991 (Act) and regulation of the effects of climate change.

The use of the Act to address effects of the discharge of greenhouse gases on climate change when making planning and consenting decisions has to date been controlled.  In 2004, the Resource Management (Energy and Climate Change) Amendment Act incorporated climate change considerations into the Act, but expressly limited how these considerations could be used.  A number of cases were heard as to how these amendments were to be interpreted in a resource consent context.  Two prominent decisions have shaped the case law in this area.

Greenpeace New Zealand v Genesis Power Ltd [2008] NZSC 112 resulted in guidance from the Supreme Court as to whether section 104E of the Act could be interpreted to require consent authorities to consider the comparative benefits of renewable energy when considering applications for fossil fuel generated energy projects.  The Supreme Court upheld the decision of the Court of Appeal that consent authorities could consider the effects of greenhouse gas emissions on climate change when considering applications for renewable energy projects.  But the Supreme Court clarified that the consideration of climate change effects was not permitted for any applications other than those considering renewable energy.

The second Supreme Court decision, West Coast ENT Inc v Buller Coal Limited [2013] NZSC 87, dealt with two coal mine consent applications.  Once mined the coal was to be exported for use overseas.  One argument against the applications was that the climate change effects associated with the end use of the coal should be material to the consent authority’s assessment of the applications.  Buller Coal successfully applied to the Environment Court for declarations under the Act that when considering the applications it was not permissible to have regard to the effects of the discharge of gases from the end use of the coal.  These declarations were upheld by the High Court and Supreme Court.

It is clear from these decisions that the current statutory framework does not allow consideration of climate change effects at local level in decision-making under the Act.

The Committee’s findings were that since the 2004 amendments to the Act, the policy framework for climate change has evolved.  The recently enacted Climate Change Response (Zero Carbon) Amendment Act 2019 expressly permits decision-makers acting under other legislation to take into account statutory emissions targets, emissions budgets and emissions reduction plans.  The Committee’s view was that this framework conflicted with the express provisions in the Act that prevent councils from considering the effects on climate change when assessing applications relating to discharges of greenhouse gases.  The Committee recommended the statutory bars preventing these considerations be removed.

Specifically, the Committee’s recommendations are to repeal sections 70B and 104F of the Act, which bar councils from having regard to the effects of the discharge of greenhouse gases on climate change when making planning and consenting decisions under the Act, except in relation to renewable energy projects (as discussed above).  The Committee also recommended amendments to sections 61, 66 and 74 of the Act, which state the matters to be considered when making and amending regional policy statements, regional plans and district plans.  These sections would be amended to include “emissions reduction plans and national adaption plans”.

The Committee recognised that it will be important to have national level direction about how councils are to make decisions about climate change mitigation under the Act and that sufficient time to make policy arrangements would be required for their amendments.  The changes would accordingly not come into force until 31 December 2021.  However, the Committee has recommended that this transitional period not apply to Board of Inquiry and Environment Court decision-making.  It recommended that a clause be added allowing a Board of Inquiry or the Environment Court to take into account global environmental impacts including climate change mitigation from the date of the Bill’s commencement in order to ensure large scale projects that may have high emissions were not bought forward to take advantage of delayed commencement.

If implemented, the Committee’s recommended changes could have significant impacts for the consenting of natural resource projects in New Zealand.  The Bill is now at the Second Reading Stage.  Climate change is also a focus of the more comprehensive review of the Act currently being led by the Resource Management Review Panel (Panel).  The Panel is due to report its findings by 31 May 2020, after which further legislative change is expected.  This will provide a chance for (in our view, much needed) public engagement on changes to the Act in respect of climate change.

Resource Management team

Josh Leckie, Annabel Linterman, Kelsey Barry, Mia Turner

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