Buller Coal Ltd v West Coast ENT Inc

COURT OR TRIBUNAL

Environment Court of New Zealand, Supreme Court of New Zealand

DATE FILED (OR FIRST HEARING DATE)

12/03/2012

LITIGATION TYPE

Project Approval - Mitigation

SUBJECT MATTER

Coal mine

REVIEW TYPE

Judicial review

SUMMARY

(Linxplus case summary from Lexis)

RESOURCE MANAGEMENT - successful declaratory application by the joint 1st applicants, unsuccessful declaratory application by the 2nd applicant - Buller Coal Ltd (BCL) made successful consent applications (the BCL Application) for coal mining activities including land use - Solid Energy New Zealand Ltd (Solid Energy) made applications (the Solid Energy Application) for consents for coal mining activities including land use which were before the councils - neither the BCL Application nor the Solid Energy Application (together, the Applications) included an application for discharge of contaminants to the air from the combustion of coal to be mined - joint 1st applicants applied for a declaration that in considering the Applications, the decision maker could not have regard to the effects on climate change of discharges into the air of greenhouse gases arising from the subsequent combustion of the coal extracted in reliance on the Application consents, whether the discharge of greenhouse gases occurred as a result of the end use of coal inside or outside NZ - 2nd applicant applied for a declaration that was almost the converse of that sought by the joint 1st applicants - 2nd applicant argued a decision maker must, under s104(1) and s7(i) Resource Management Act 1991 (RMA), consider the climate change impact from the combustion of coal

HELD: Court made the declaration sought by the joint 1st applicants - declaration sought by the 2nd applicant refused - s7(i) and s104(1)(a) RMA could not be interpreted to cut down the clear underlying policy of the Resource Management (Energy and Climate Change) Amendment Act 2004 so as to permit or require local authorities, or the EnvC on appeal, to determine applications concerning extraction of coal (with or without applications for permits to discharge greenhouse gases) by reference to effects on climate change - conclusion supported by SC decision of Greenpeace New Zealand Inc v Genesis Power Ltd

(Lexis Catchwords & Digest)

Environment — Environment protection — Discharge of greenhouse gases — Potential effects - Practice and procedure — Applications — Leave to appeal — Exceptional circumstances

Application for leave to appeal against decision of New Zealand High Court (NZHC). NZHC granted consent to first respondent for coal mining activities at relevant mine which in effect precluded applicant from calling evidence at Environment Court's hearing on potential effects on climate change of discharge of greenhouse gases from end use of coal at mine. Finding that, on proper interpretation of relevant legislation, decision-makers in consent proceedings were required or able to have regard to effects on climate change of discharge of greenhouse gases arising from end use of coal that would be extracted. Finding that leave to bring direct appeal from NZHC judgment was accordingly given in relation to both matters. Finding that exceptional circumstances had been established for grant of leave to appeal. Application granted.

(Lexis Catchwords & Digest)

Energy and resources — Mining — Resource consents — Coal mining Statutes — Interpretation — (NZ) Resource Management Act 1991 s 104(1)(a) — Actual or potential effects on environment - Appeal against decision of New Zealand Court of Appeal (NZCA).

Coal mining restricted discretionary activity. Respondent applied for resource consents for proposed open-cast coal mines. Commissioners granted consents sought by respondent. Respondent sought declaration in considering resource consents applications no regard to effects on climate change of discharges. Appellant sought declaration in considering resource consents for mining, contribution of subsequent discharges into air from coal combustion towards climate change should be regarded. New Zealand Environment Court granted respondent's declaration. Found consideration of effects from coal extraction removed from regional councils. New Zealand High Court found absence of national environmental standard and given prohibition of regional rule-making, no express method by which local authority require consent for discharges. Appellant sought statutory interpretation on which declaration sought by respondents been granted and own declaration refused. Established words 'actual or potential effects on environment' in (NZ) Resource Management Act 1991 s 104(1)(a) in relation to activity under consideration by local authority did not extend to impact on climate change of discharge into air of greenhouse gases that resulted indirectly from that activity. Appeal dismissed.

CASE DOCUMENTS

Buller Coal Ltd v West Coast ENT Inc [2012] NZEnvC 80
West Coast ENT Inc v Buller Coal Ltd [2012] NZSC 107
West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87