back to the future

In the soon to be released Climate change decision we will know whether BTU will continue to be mired in the political morass or set free. A succinct judgement like the last and I change sentiment to a buy. PC waffle an I shudder

A blog from last year is the way forward

Vernon Rive . 6/09/2012 8:35:05 a.m.


In April 2012, acting Principal Environment Judge Newhook ruled in the miners’ favour. He held that the RMA, as amended by the Resource Management (Energy and Climate Change) Amendment Act 2004 contained no “ambiguity, uncertainty, or room for discretion or “choice"…" regarding the ability to consider the effects on climate change linked with the proposals at issue. RFBS and West Coast ENT appealed to the High Court.

Whata J’s decision is a sequel to a series of contentious cases between 2006 and 2008 involving Greenpeace, Mighty River Power and Genesis Energy concerning the proposed ‘Marsden B’ coal-fired power station in Northland and gas-fired power station in Rodney. That litigation culminated in a majority decision of the Supreme Court that in light of the 2004 amendments, consent authorities could not consider the adverse impacts on climate change when assessing applications for air discharge consent needed for non-renewable energy generation projects. The Court held that the purpose and associated provisions of the 2004 amendments made it clear that Parliament intended that climate change effects from non-renewable energy projects should be regulated at the national level (such as through the emissions trading scheme established by the Climate Change Response Act 2002) and not on a case-by-case basis by regional councils assessing a discharge permit applications.

The Greenpeace litigation concerned the relevance of climate change effects when assessing applications for air discharge permits for New Zealand-based non-renewable energy projects. What it did not explicitly deal with was whether councils (and the Environment Court on appeal) could consider the effects on climate change when assessing land use applications. Nor had the Supreme Court addressed issue of whether the fact that extracted coal would be exported and burnt overseas made any difference to the legal position under the RMA.

Those issues were at the heart of the March and July 2012 hearings.

In the Environment Court, counsel for the environmental groups (which included Sir Geoffrey Palmer) argued that neither the 2004 amendments, nor the Supreme Court decision in Greenpeace and created any impediments to considering impacts of climate change from the ultimate burning of mined coal when assessing land-use consents for the mining projects. The Greenpeace cases revolved around interpretation of a particular provisions (104E) which the Supreme Court had accepted explicitly prohibited consideration of climate change and impacts from non-renewable energy projects. But that provision was not engaged in the present case. Counsel argued that the provision governing the assessment of land-use applications (s104(1)(a)) contained no prohibition - explicit or implied - on considering the downstream climate change impacts of coal combustion. Whether the coal was ultimately burnt in New Zealand or elsewhere, on a plain reading of the section and in light of the sustainable management purpose of the RMA, the adverse impacts on climate change should be considered.

Submissions on behalf of the environmental groups were rejected by the Environment Court in a succinct 14 page decision, which dismissed each of the contentions in short order.


for the full article go to

http://www.vernonrive.co.nz/PointSource/One_Leviathan_is_enough_nuanced_ruling_from_Whata_J_on_climate_and_the_coal_consent_process.aspx


Viney