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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
Message in a Bottle: The Relevance of “End Use” to Consent Authority Decision-making under the Resource Management Act 1991.
Emma McClean
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (with Honours) at the University of Otago - Te Whare Wānanga o Otāgo.
7 October 2022
Acknowledgements
To my supervisor, Professor Ceri Warnock, thank you for your invaluable guidance, inspiration and expertise. I am very grateful that you supervised me.
To my family, thank you for your constant love and support.
To my friends and flatmates, thank you for the special memories at Otago, and for always encouraging me.
Table of Contents
Protect Aotea v Auckland Council 38
Introduction
This dissertation examines the relevance of “end use” and consequential effects on the environment to consent authority decision-making under the Resource Management Act 1991. I will analyse the extent to which consent authorities and courts on appeal, are permitted to consider “end use” and consequential effects on the environment, and how far these considerations should extend based on the need for ecological integrity.
The relevance of end use effects has profound implications. This is manifest when consent authorities determine resource consent applications for the implementation of coal mines and water bottling plants. Consider for example, should consent authorities examine the “end use” of the activity (the export and combustion of coal, and the export and use of bottled water) and the consequential effects these have on the environment? Or only the direct effects of extracting the coal and water? In light of the climate crisis, it may seem obvious that the end use and consequential effects should be relevant to the decision-making assessment, however, the treatment and application of end use and consequential effects within New Zealand is varied and inconsistent. The Supreme Court and Court of Appeal ruled in cases addressing both of those factual examples, that such effects were too remote or indirect to be relevant to the assessment.1 Although recent case law has turned this issue on its head.2
With unclear precedents, some judges are using legal tests developed in cases concerning risk and precaution and conflating these with “end use” effects. In this dissertation I make the argument that the two concepts - the intended “end use” effects and the risk of unintended consequences should be dealt with differently in legal reasoning.
It is crucial that end use effects are considered in the determination of resource consents, primarily, given the holistic nature of ecosystems and our ever increasing knowledge that damaging or polluting one part of the environment can have profound impacts on the wider environment.3 Additionally, the consideration of end use by consent authorities may be the only opportunity for
1 West Coast ENT Inc v Buller Coal Limited [2013] NZSC 87; and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388.
2 Clutha District Council v Otago Regional Council [2022] NZHC 510; and Protect Aotea v Auckland Council [2022] NZHC 1428.
3 Resource Management Act 1991, s 104(1)(a).
the regulation of these effects. Despite the importance of considering end use effects, there is a lacuna in legal commentary and discourse as of yet. A comprehensive probe did not elicit many secondary sources, and as a result I had to predominantly rely on primary sources with the case law, and undertake novel research.
Chapter one of this dissertation provides the background to end use, by observing the distinction between end use effects and risk, the inherent complexities of environmental problems and calculating effects, and the relevant legislation. Chapter two outlines the relevant case law on end use and consequential effects, and the requirements of nexus and remoteness. Section I will evidence the relevance of end use by considering the early cases’ application of end use. Section II analyses the incorporation of psychological end use effects.4 Section III discusses the Climate- change decisions,5 comparing how Australia deals with end use. Section IV outlines the case law on the water bottling-cases and Section V summarises the most recent case-law.6
Chapter three analyses where this varied case law has left the consideration of end use. It notes the inconsistencies within the law, why these are problematic and any solutions.
The consideration of end use by consent authorities is essential. This can be achieved with greater certainty when determining resource consents, with better legislative clarity and definitions, the adoption of Australia’s “sufficient causal link” test to include extra-territorial downstream emissions and institutional change. The reform of the Resource Management Act 19917 is an opportune time to elucidate the role of end use and consequential effects on the environment within our law and to ensure they hold an inviolable position.8
4 Cayford v Waikato Regional Council EnvC Auckland A127/98, 23 October 1998; Aquamarine v Southland Regional Council [1996] NZEnvC 67; (1996) 2 ELRNZ 361; Auckland City Council v Auckland Regional Council EnvC Auckland A101/97, 25 August 1997; and Beadle v Minister of Corrections 2002 WL 568129.
5 Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112; [2009] 1 NZLR 730; West Coast ENT Inc v Buller Coal Limited, above n 1; Gray v Minister for Planning [2006] NSWLEC 720, [2006] 152 LGERA 258; and Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7.
6 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 1; Aotearoa Water Action Inc v Canterbury Regional Council [2020] NZHC 1625; Clutha District Council v Otago Regional Council, above n 2; and Protect Aotea v Auckland Council, above n 2.
7 This will be referred to as the RMA, for the sake of brevity.
8 Reform of the RMA: The Natural and Built Environments (NBA) and Spatial Planning (SPA) Bills are expected to be introduced to Parliament in October 2022, and the Climate Adaptation Bill is expected to follow in 2023.
CHAPTER ONE
Background to End Use and Consequential Effects
This chapter outlines the background to end use and consequential effects on the environment. It includes the distinction between end use effects and risk, the inherent complexities of environmental problems and calculating effects, and the relevant legislation.
I. Defining “End Use”
End use is not defined within legislation, however its meaning can be ascertained from case law. An apposite description of “end use” could be that: properly utilised, the activity proposes that the effect will happen. (Hence, the end use is the intended effect of a proposed activity.) For example, properly utilised, the proposed activity of a coal mine results in the combustion of coal (end use) and the climate change effects on the environment (consequential effects). Additionally, the proposed activity of a water-bottling plant generally envisages the use and export of plastic bottles (end use) and the plastic pollution (consequential effects on the environment).
Consequential effects are the effects on the environment resulting from the end use. For example in Beadle v Minister of Corrections,9 the proposed activity is the earth and stream work consents, for the end use of a prison and the consequential effects on the environment can include the psychological effects (the stigma of a prison town).10
Determining effects is always a difficult task in the environmental sphere. Hence, distinguishing end use from “risk” is a challenging issue for courts and decision-makers. By contrast to end use, “risk” could be defined as the unintended effects from a proposed activity (i.e. if the activity goes wrong and an accident occurs). These effects stemming from risk may never eventuate, and thus they necessitate complex precautionary reasoning that is distinct from the consideration of end use. This reasoning is evident in the case in Aquamarine v Southland Regional Council11 where the court considers the relevance of effects on the environment from the passage of tankers across Doubtful
9 Beadle v Minister of Corrections, above n 4.
10 Throughout the dissertation, for the sake of brevity, “end use” will encompass both the end use and consequential effects on the environment.
11 Aquamarine v Southland Regional Council, above n 4.
Sound and the likelihood of discharges from the tankers. The potential discharges are not intended effects from the proposed activity going to plan, but rather are unintended consequences of the activity going wrong.
I am solely concerned with the consideration of end use effects upon consent authority decisions, rather than risk possibilities.
II. The Inherent Complexities of Environmental Problems
The complex nature of environmental problems poses difficulties for calculating effects (specifically end use), and the regulation of these by decision-makers and courts. Neil Gunningham posits that “the more complex the environmental problem, the more obvious become the limitations (and the inefficiencies) of direct regulation in addressing it.”12 Indeed, the intrinsic complexities of environmental problems present difficulties for legal regulation.13 End use cases highlight the tension between legal formalism (and the desire for certainty and hard and fast rules), and environmental issues that require flexibility and discretion. Additionally the “close interaction between law and policy in environmental law creates challenges for traditional legal reasoning.”14
The inconsistent precedent within end use cases, could in part be attributed to the complexity of environmental problems. Dryzek notes that “environmental issues do not present themselves in well-defined boxes (labeled radiation, national parks, pandas, coral reefs, rainforest, heavy metal pollution, and the like).”15 Instead they “tend to be interconnected and multidimensional; they are complex.”16 This complexity of ecosystems and the environment, conflated with our limited knowledge of them, is compounded by the plurality of perspectives on environmental problems.
12 Ceri Warnock “The Struggle to Make Legal Sense of Specialist Environment Courts.”Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy.(Oxford, Hart Publishing, 2020) at 81; and Neil Gunningham "Environment Law, Regulation and Governance: Shifting Architectures" (2009) 21(2) Journal of environmental law 179 at 184.
13 Ceri Warnock “The Struggle to Make Legal Sense of Specialist Environment Courts.”Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy.(Oxford, Hart Publishing, 2020), above n 12 at 79.
14 At 83.
15 John S. Dryzek The Politics of the Earth (Oxford University Press, Oxford New York, 2005) at 8.
16 At 8.
The more complex a situation, the larger the number of plausible perspectives upon it. Additionally, Fisher posits that:17
...environmental problems are inherently messy and thus not easily managed by engineered solutions. The non-linear processes of ecosystems, the unpredictability of human behaviour and the problems of scientific uncertainty all make the process of assessing environmental harm an intricate and often intractable business.
Hence, the inherent features of environmental problems (the dynamism, scientific uncertainty, contestability and poly-centricity) present challenges for legal problem-solving.18 Cases concerning end use and consequential effects are not confined to environmental issues, but extend to social and psychological effects. However, due to the complexity of environmental problems, environmental end use cases often amplify the underlying issues at play.
This required flexibility to cater for the complexity of environmental problems, means that environmental legislation is often characterised by principles and standards and, in conjunction we have developed specialist decision-making and adjudicative institutions to work within the flexible framework. Nevertheless, these adjudicative bodies are legal institutions operating in accordance with the rule of law. Their decisions do need to be underpinned by rational reasoning and consistency. The end use cases demonstrate this need for consistency.
III. Relevant legislation:
Part 6 of the RMA deals with resource consents. Section 104(1)(a) explicitly sets out what consent authorities are required to have regard to when considering a resource consent application.
104 Consideration of applications
(1) When considering an application for a resource consent and any submissions received, the consent authority must, subject to Part 2 and section 77M, have regard to —
(a) any actual and potential effects on the environment of allowing the activity,19
17 Ceri Warnock “The Struggle to Make Legal Sense of Specialist Environment Courts.”Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy.(Oxford, Hart Publishing, 2020), above n80.
18 At 79.
19 Resource Management Act 1991, above n, s 104(1)(a)
Subject to Part 2 of the RMA, when considering a resource consent application, consent authorities are required under s 104(1)(a) of the RMA 1990, to have regard to “any actual and potential effects on the environment of allowing the activity”.20 Section 104(2) states that a consent authority may disregard an adverse effect of the activity on the environment if a national environmental standard or the plan permits an activity with that effect.21
Meaning of effect
In this Act, unless the context otherwise requires, the term effect includes—
(a) any positive or adverse effect; and(b) any temporary or permanent effect; and
(c) any past, present, or future effect; and
(d) any cumulative effect which arises over time or in combination with other effects— regardless of the scale, intensity, duration, or frequency of the effect, and also includes
—
(e) any potential effect of high probability; and(f) any potential effect of low probability which has a high potential impact.
Section 3 of the RMA 1991, stipulates the various meanings of “effect”. This is very broad and encompassing, and it is difficult to see what they could have left out. While end use or consequential effects on the environment are not explicitly mentioned, they come within the definition of future effects. Potential effects may be seen to encompass the “unintended consequences” of risk. “Potential effects are effects which may happen or they may not.”22
environment includes—
(a) ecosystems and their constituent parts, including people and communities; and(b) all natural and physical resources; and
(c) amenity values; and
(d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters
20 At s 104(1)(a).
21 At s 104(2).
22 Beadle v Minister of Corrections, above n 4 at [883].
To be considered under s 104(1)(a) by consent authorities, the effects of the proposed activity must be on the environment. This definition is also very broad and does not refer solely to a physical natural environment, but includes people and communities. (Thus end use effects can extend to social psychological effects, as in Beadle.)
The overarching purpose to the RMA is the sustainable management of natural and physical resources. Dryzek describes sustainable management as a discourse not a concept, because it “contains competing ecological, socio-cultural and economic considerations of wide and undefined scope.”23 The NZSC in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd termed “sustainable management” as a guiding principle of the RMA, to be applied by those performing functions under the Act, rather than a specifically worded purpose intended more as an aid to interpretation.24 The RMA is concerned with mitigating adverse effects - but it still unclear how far “effects” extend into the future. Should consent authorities consider the end use of activities or only the direct effects of the proposed activity? Additionally can they consider effects that are beyond the authority’s geographical state and legal jurisdiction (and within the hands of third parties and overseas entities)?
23 Ceri Warnock “The Struggle to Make Legal Sense of Specialist Environment Courts.”Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy.(Oxford, Hart Publishing, 2020), above n 12 at 85.
24 At 85; and Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38.
CHAPTER TWO
Case Law on End use Effects
This chapter outlines the relevant case law on end use and consequential effects, and the requirements of nexus and remoteness, in order for them to be considered by consent authorities.
I. Early Cases on End Use
In the late 1990s, a series of cases (of which three were presided over by Judge Sheppard), considered end use and consequential effects to be relevant. 25
This appeal to the Environment Court challenged a Waikato Regional Council decision to grant a resource consent to take up to 150,000 cubic metres of water per day from the Waikato River. The proposed activity by Watercare was to augment the Auckland water supply following demand from industrial and population growth. The water would be taken from the river, treated and then delivered to an existing water reservoir by a 38km pipeline.27 Cayford contended that the court ought to consider the end use effects (on health regarding the standard of water quality, and its suitability for human consumption), when determining whether to allow the proposed activity (water take). The court considered the scope and extent of matters a consent authority considering a resource consent application may properly have regard to. To determine the relevance of end use, Judge Sheppard turned to two cases:
This case involved an application for resource consents to export freshwater from Doubtful Sound. Judge Skelton considered the relevance of effects on the environment from a passage of water tankers along Doubtful Sound and the likelihood of discharges from tankers. No resource consents were sought for those effects.
25 Cayford v Waikato Regional Council, above n 4; Aquamarine v Southland Regional Council, above n 4; Auckland City Council v Auckland Regional Council, above n 4; and Beadle v Minister of Corrections, above n 4.
26 Cayford v Waikato Regional Council, above n 4 at 27.
27 At 2.
28 Aquamarine v Southland Regional Council, above n 4.
When considering the relevance of end use, Judge Skelton held that:29
...relevance is not dependent on the need or otherwise for resource consents or whether effects can be the subject of controls. Rather it is dependent on giving a sufficiently wide interpretation to s 104(1)(a) of the Act to ensure that in achieving its purpose, all reasonably foreseeable effects whether positive or adverse can be considered by the consent authority, and on appeal by the courts.
Ultimately the passage of tankers and potential discharges (end use effects) were held to be “reasonably foreseeable” effects of allowing the activity for which consent was sought, and thus were relevant considerations for the Court. Judge Skelton in Aquamarine noted that “the fact there may not be any adverse effects arising from the passage of tankers in Doubtful Sound is not a matter I need to consider at this point.” This case is also an example of the precautionary principle at play. Albeit, it is a very small risk that discharges would occur, if they did eventuate, they would cause major harm and thus warranted being relevant considerations for the Court under s 104(1)(a): as “any actual and potential effects” on the environment from the proposed activity for which consent is sought.
Secondly, Cayford drew on:
This Environment Court decision was an appeal against the refusal of a resource consent to divert groundwater during and after construction of an underground transport centre in Britomart, for earthworks and the control of sediment. The Court considered the relevance of end use effects and Judge Sheppard adopted the approach in Aquamarine:31
The relevant considerations for the decision-maker and the Court upon appeal are widely defined in the Act. The term “effects” (as defined in s 3) can only be constrained where the context requires it... Effects which flow from allowing the activities for which the consent is sought may also include those from other activities which may inevitably flow... This may include activities that require resource consents which may yet be applied for.
Therefore, this case demonstrated the wide nature of effects consent authorities may have regard to, including those which inevitably flow from allowing the activities, or may require future resource
29 Aquamarine above n 4 at page 9.
30 Auckland City Council v Auckland Regional Council, above n 4.
31 At 7.
consents. While many resource consents are applied for contemporaneously, there is some concern over developers deceptively applying for consents sequentially. Considering “end use” and consequential effects of proposed activities, can abate this issue of environmental creep and ensure the full consequences of allowing a resource consent are considered.32
From those decisions, Judge Sheppard in Cayford discerned that:33
...regard is to be had to direct effects of exercising the resource consent which are inevitable or reasonably foreseeable, and also to effects of other activities that would inevitably follow from the granting of consent, but regard is not to be had to effects which are independent of the activity authorised by the resource consent.
Hence, Cayford conflates the tests set out in Aquamarine and Auckland City Council, and stipulates that end use effects can be relevant considerations, so long as they are not independent of the proposed activity.
In Cayford, Judge Sheppard held that the quality of the treated water delivered to consumers for a variety of purposes was independent from the activity of taking the water from the Waikato River. Although adverse effects were possible, they were by no means inevitable or even reasonably foreseeable, for if the water was treated to the highest standard there would be no adverse effects from using it.34 Hence, the potential effects of the use of the water to be taken due to contaminants in the water, are not adverse effects on the environment of allowing the activity.35 S 104(1)(a) does not require a consent authority to have regard to them, as they are independent of the activity:36
The extent to which the water is to be treated and the suitability of the treated water for various purposes, are not relevant or reasonably necessary to determine the application for consent to take the water from the river.
32 Arrigato Investments Ltd v Auckland Regional Council [2001] NZCA 329; [2002] 1 NZLR 323.
33 Cayford v Waikato Regional Council, above n 4 at 10.
34 At 12.
35 At 12.
36 At 13.
Thus, the end use effects are outside the proper scope of the considerations on the application.37 Cayford is the first leading case on end use and establishes the test for considering end use and consequential effects - whether they are inevitable or reasonably foreseeable - so that they are relevant and reasonably necessary to determine the application. If the effects are independent of the activity then they are excluded.
Does the existence of another regulatory regime (covering end use) affect their relevance to consent authorities’ decision-making?
It is interesting to consider whether the Court would have reached the same decision, if the potential adverse effects on health from the potability of the water were not regulated under another regime; the Health Act 1956.38 While regulated outside of the RMA, this case brings to light questions of whether the existence of another regulatory regime to deal with the end use, will impact upon their relevance to consent authority decision-making. Arguably, some kind of additional regulating “permission” could draw the line between what you consider and what you do not.
II. Psychological and Social End Use Effects
Prior to the Buller Coal and Te Rūnanga decisions, Beadle v Minister of Corrections is recognised
as the leading authority on the consideration of end use under the RMA.39 In this case, JudgeSheppard expounds the test of nexus and remoteness for the consideration of end use and consequential effects under s 104(1)(a). The Environment Court held that when determining resource consent applications for earth and stream works,40 they were “able to have regard to the intended end use of a corrections facility [in Northland] and any consequential effects on the environment that might have, if not too uncertain or remote.”41 These included the psychological effects of the stigma of Ngawha Springs as a “prison town” and the risks of harm from escaping inmates.42
37 At 14.
38 The Health Act 1956.
39 Beadle v Minister of Corrections, above n 4; and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196 (2019), 21 ELRNZ 539 at [46].
40 Beadle v Minister of Corrections, above n 4 at [1]. (The proposed development was a comprehensive regional prison).
41 At [91].
42 At [74].
Case law establishes that “psychological effects or the emotional responses of people todevelopments will constitute a valid resource management concern.”43 The RMA definition of
“environment” includes “people and communities” and the “social, economic, aesthetic and cultural
conditions” that affect them.44 Beadle confirms that psychological effects to the end use of a
proposed activity can be relevant to resource consent decisions. However the Environment Court distinguished relevant psychological effects from metaphysical spiritual effects on Māori taonga and taniwha. Judge Sheppard states that:45
[439] ... the Act and the Court are creations of the Parliament of a secular State. The enabling purpose of the Resource Management Act is for the well-being of people and communities, and does not extend to protecting the domains of taniwha, or other mythical, spiritual, symbolic or metaphysical beings.
This view is analogous to the corollary decision in Friends and Community of Ngawha v Minister of Corrections which considered the relevance of metaphysical considerations of whether a taniwha would be adversely affected by the prison development.46 Williams J noted that "each of the courts, in dismissing the appeal, struggled with the whole idea of whether and how secular courts should make provision for spiritual beliefs and cultural entities.”47 Ultimately the Court made a "factual finding” that the taniwha would not be affected by the prison,48 and thus avoided the question of law.49
Although end use effects were recognised as relevant considerations to the consent authority's decision, expert evidence found no proof that prisons posed a significant adverse risk on personal safety to local communities. The expert found that the risk to the community generally in New
43 Ceri Warnock “Understanding the objective : psychological effects in environmental decision-making” (2011) 24 NZULR 574 Ceri Warnock “Understanding the objective : psychological effects in environmental decision-making” (2011) 24 NZULR 574 24 at 575.
44 Resource Management Act 1991, above n 3 at s 2.
45 Beadle v Minister of Corrections, above n 4 at [439].
46 Friends and Community of Ngawha v Minister of Corrections [2002] NZCA 322; (2002) 9 ELRNZ 67, [2003] NZRMA 272 (CA).[14].
47 Joseph Williams “Lex Aotearoa. An Heroic Attempt to Map the Maori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato Law Review 1 at 16.
48 Friends and Community of Ngawha v Minister of Corrections, above n 55 at [21]
49 Joseph Williams “Lex Aotearoa. An Heroic Attempt to Map the Maori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato Law Review 1, above n 57 at 16.
Zealand from escaped prisoners is low, and not directly related to the proximity of a prison.50 In Shirley Primary School v Christchurch Council 51 the Environment Court held that “fears can only be given weight if they are reasonably based on real risk.”52 Hence, although Beadle considered end use and consequential effects to be relevant considerations, the social and psychological effects in this case were debunked.
Beadle is significant for clarifying the tests for end use and consequential effects to be relevant to consent authority’s decision-making. The Environment Court discerned:53
[88]...a general thrust towards having regard to the consequential effects of granting resource consents, particularly if they are environmental effects for which there is no other forum, but with limits of nexus and remoteness. Of course the weight to be placed on them has to be case-specific.
This affirms the relevance of consequential effects (and end use) to resource consent decisions. Additionally, Beadle expands on the tests established in Cayford, Aquamarine and Auckland City Council by confining end use and consequential effects within the limits of “nexus and remoteness”. This is the first coining of these terms in relation to end use, and they are defined further in later cases. Judge Sheppard also acknowledges that consequential effects are likely to be considered where there is no other forum available for their regulation. This aligns with Cayford, where the end use of the water’s potability, was not admissible under s 104(1)(a) as it was too remote and regulated by another medium. This raises questions of why the Supreme Court diverged from this approach in Buller Coal (discussed later), when arguably “there is no other forum” for the regulation of climate change emissions in countries such as India and China, where the coal is exported. For this reason Sarah Baillie argues that it is essential to consider the climate change effects at the time of application, or “they may never be considered or accounted for.”54 This
50 Beadle v Minister of Corrections, above n 4 at [782].
51 Shirley Primary School v Christchurch Council [1998] NZEnvC 394; [1999] NZRMA 66 (EnvC) at [193].
52 Ceri Warnock “Understanding the objective : psychological effects in environmental decision-making” (2011) 24 NZULR 574 above n 24 at 579.
53 Beadle v Minister of Corrections, above n 4 at [88].
54 Sarah Baillie “The Consideration and Regulation of Climate Change Effects under the Resource Management Act 1991” (LLB(Hons) Dissertation, University of Otago, 2012) at 1.
question of whether the existence of another regulatory regime precludes the consideration of end use is also dealt with in Protect Aotea v Auckland Council (discussed below).55
Considering Judge Sheppard’s reference to early cases decided prior to the RMA, helps to elucidate his development of the limits of nexus and remoteness. 56 In Gilmore v National Water and Soil Conservation Authority 57 the High Court held that in considering an application for a hydro-dam, the end use of power for an aluminium smelter could be relevant.58 This statement was relied on by Beadle, however Judge Kirkpatrick in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council acknowledged that this decision is of reduced value given it was decided under a different legislative scheme (the Water and Soil Conservation Act 1967) than the RMA.59 Additionally, the matter was never remitted to the Tribunal for further consideration as the proceeding became moot.60
Beadle also references Lee v Auckland City Council 61, where the Planning Tribunal held that:62
...what is allowable under s 104(1)(i) of the Act must be related back to the issues contemplated by the purpose of the Act as it is subject to provisions of Part II. Any decision under s 104(1)(i) cannot be made in a vacuum and on extraneous matters.
This reasoning is analogous to the caveat in Cayford, that end use effects must not be independent of the proposed activity, and presages the Environment Court’s development of the “nexus and remoteness” tests. Pokeno Farm Family Trust v Franklin District Council 63 clarified that a “particular activity authorised under another resource consent or by another council’s plan does not
55 Discussed on page:
56 Beadle v Minister of Corrections, above n 4 at [80].
57 Gilmore v National Water and Soil Conservation Authority [1982] NZHC 274; (1982) 8 NZTPA 298, 304.
58 Beadle v Minister of Corrections, above n 4 at [78].
59 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 47 at 44.
60 At [45].
61 Lee v Auckland City Council [1995] NZRMA 241, 262.
62 Beadle v Minister of Corrections, above n 4 at [82].
63 Pokeno Farm Family Trust v Franklin District Council Environment Court Decision A37/97.
preclude the effects of that activity from being assessed in the context of a related proposal.”64 This evidences that decision-makers are not precluded from looking beyond the consent application in determination. However, the Environment Court in Beadle was cautious of changing the nature of consents sought, by considering end use and extraneous considerations to the proposed activity.
They cited Ngati Rauhoto Lands Rights Committee v Waikato Regional Council 65 which recognised that ss 6, 7 and 8 of the RMA, could not be used “to turn an appeal about a discharge into an appeal
about taking geothermal fluid.”66 Although considering end use effects raises some concerns ofaltering the nature of the consents sought (i.e. by considering end use discharges when determining land-use consents for a coal mine), this is unlikely as people seldom apply for only one consent.
Indeed the Court has made it clear that all necessary consents should be “bundled” and heard together.67
Additionally, considering end use effects is an important step to protect the environment and thus necessary to constitute part of consent-authorities’ decision-making process.
Beadle commented on these authorities, with the statement that:
[88]... Lee’s case is a reminder that a decision-maker should not have regard to matters extraneous to the Act, Ngati Rauhoto that an appeal on one topic cannot be turned into an appeal on another, and Cayford that consequential effects may be too slightly connected to the consent sought, and too remote.
Hence, Beadle is significant for affirming that end use and consequential effects can be relevant within the “limits of nexus and remoteness.”68 In fact it is later cited as the “Environment Court’s leading case on the consideration of end use under the RMA.”69 It is also notable for including psychological and social effects within relevant end use considerations, although this does not extend to metaphysical effects. The intangibility of metaphysical effects is further discussed in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, which is analysed in Chapter 4. Beadle proves that the Environment Court is capable of assessing intangible psychological end use effects,
64 Beadle v Minister of Corrections, above n 4 at [85].
65 Ngati Rauhoto Lands Rights Committee v Waikato Regional Council Environment Court Decision A65/97
66 Beadle v Minister of Corrections, above n 4 at [86].
67 Ceri Warnock and Maree Baker-Galloway Focus on resource management law (LexisNexis NZ Ltd, Wellington, 2015) at 192 citing Te Aroha Air Quality Protection Appeal Group v Waikato Regional Council (No 2) [1993] NZPT 155; (1993) 2 NZRMA 574 (PT); AFFCO New Zealand Ltd v Far North District Council (No 2) [1994].
68 Beadle v Minister of Corrections, above n 4 at [88].
69 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 1 at [62].
hence conceivably they could assess end use effects where there are tangible, quantifiable physical effects on the environment, and the evidence shows they will happen.
These are not really “intended consequences” - that will happen - that the actor intends to happen - and in fact that must happen if the activity is to be successful! Hence they are risk effects, rather than end use effects.
III. Climate Change and End Use
The relevance of “climate change effects” arising from the end use of coal, to consent authority decision-making in relation to non-discharge consents, is a vexed issue within end use jurisprudence.70 In New Zealand, the leading authority on this subject is West Coast ENT Inc v Buller Coal Limited, in which the Supreme Court held in 2013 that the “end use” of coal was irrelevant to consent authority decision-making regarding the resource consent application for a coalmine.71 The consideration of “climate change” effects engenders issues of nexus and remoteness,
extra-territoriality and tangibility. In this section, I will analyse end use jurisprudence relating to the consideration of climate change effects, consider the decision reached in Buller Coal72 and compare this approach with the reasoning employed in Australian cases, which consider downstream end use effects to be relevant.73
The regulation of greenhouse gas emissions is primarily dealt with under the Climate Change Response Act 2002 (CCRA) and associated regulations.74 However the RMA, can be utilised by consent authorities to safeguard the environment, by considering end use effects under s 104(1)(a) when determining non-discharge consents. Prior to the Resource Management (Energy and Climate Change) Amendment Act 2004 (“the 2004 Amendment Act”), the RMA was devoid of any mention
70 “Climate change” is defined in s 2 RMA 1991, as a change of climate that is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and that is in addition to natural climate variability observed over comparable time periods.
71 West Coast ENT Inc v Buller Coal Limited, above n 1 at [118].
72 At 5.
73 Gray v Minister for Planning, above n 5; Gloucester Resources Ltd v Minister for Planning, above n 5; and Wollar Property Progress Association Inc v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92.
74 Sarah Baillie “The Consideration and Regulation of Climate Change Effects under the Resource Management Act 1991” (LLB(Hons) Dissertation, University of Otago, 2012), above n 62 at 14.
The primary regulation of greenhouse gas emissions in New Zealand is the Climate Change Response Act 2002, which is soon to be replaced with the Climate Adaptation Act, in the impending RMA reform.
of climate change.75 Courts considered climate change in their generalised assessment of effects under s 104(1)(a) when determining resource consent applications.76 The 2004 Amendment Act introduced explicit climate change considerations, including s 7(i) which requires “all persons exercising functions and powers under the RMA, in relation to managing the use, development, and protection of natural and physical resources, to have particular regard to “the effects of climate change.”77 However, the s 3 purpose stipulated that “local authorities... [must] not... consider the effects on climate change of discharges into air of greenhouse gases.”78 This statutory purpose and the introduction of s 104E which “prohibits consent authorities from having regard to effects on climate change when considering applications for discharge and coastal permits,”79 created contention over whether consent authorities could still consider climate change effects for non- discharge consents.
In Genesis v Franklin District Council, the Environment Court used s 7 climate change factors to assist in finding that a wind farm would not be “inappropriate” under s 6(a).80 Importantly, they rejected any arguments that contributions to climate change mitigation from NZ should be regarded as de minimis, referring to climate change as a "silent but insidious threat.”81
Greenpeace New Zealand Incorporated v Genesis Power Ltd is notable for its application of the 2004 climate change amendments,82 namely s 104E.83 The majority of the Supreme Court held that
75 Resource Management (Energy and Climate Change) Amendment 2004.
76 NB: Elias CJ discusses the pre 2004 assessment of CC forcing effects under the RMA in Buller Coal.
77 Resource Management Act 1991, s 7(i). Additional operative provisions introduced include ss 70A, 70B and ss 104E, 104F. However these are going to be repealed in November 2022. See Resource Management Amendment Act 2020 Commencement Order 2021.
78 At s 3.
79 Sarah Baillie “The Consideration and Regulation of Climate Change Effects under the Resource Management Act 1991” (LLB(Hons) Dissertation, University of Otago, 2012), above n 62 at 20.
80 Genesis v Franklin District Council [2005] NZEnvC 341; (2005) 12 ELRNZ 71, [2005] NZRMA 541
81 At [225]-[226].
82 Greenpeace New Zealand Inc v Genesis Power Ltd, above n 5.
83 Resource Management (Energy and Climate Change) Amendment 2004, s 104E states:
When considering an application for a discharge permit or coastal permit to do something that would otherwise contravene section 15 or section 15B relating to the discharge into air of greenhouse gases, a consent authority must not have regard to the effects of such a discharge on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases, either—
(a) in absolute terms; or(b) relative to the use and development of non-renewable energy.
consent authorities could consider the "effects on climate change” of greenhouse gas emissions reduction when considering applications for renewable energy production, rather than for fossil fuel generating applications. 84
Elias CJ dissented, arguing that the majority’s ruling which limited the consideration of such benefits of the use of renewable energy on climate change, unduly restricted the s 7(j) consideration and was inconsistent with the policy of the legislation. 85 She acknowledged that consent authorities were not permitted to “assess the extent to which greenhouse gas emissions associated with the proposal would have an affect on climate change.”86 Rather, they must accept the national greenhouse gas emission standards. However, she posited that considering the benefits of renewable energy for discharge permit applications does not “overwhelm” the prohibition on considering the
effect on climate change of the discharge proposed in a particular application.87 In Elias CJ’s
interpretation of s 104E, it is a mandatory consideration to consider the extent to which the “use and development of renewable energy enables a reduction in the discharge of greenhouse gases.”88 She holds that when considering applications for discharge permits, consent authorities must have particular regard to the benefits derived from the use and development of renewable energy.89
The Supreme Court Buller Coal decision determined the issue of whether these 2004 Amendments extended the prohibition on climate change effects, to non-discharge resource consents. Ultimately the majority held that they did, and deemed the end use effects of coal combustion on climate change to be irrelevant to determining resource consent applications for a coal mine.90 This removed a significant obstacle to Buller Coal Ltd in its pursuit to obtain the necessary land use consents to develop the coal mine. Hence, the consent for the two open cast coal mines in Buller were allowed to proceed without any consideration of the effects that the burning of 6.1 million
84 Greenpeace New Zealand Inc v Genesis Power Ltd, above n 5 at [65].
85 At [40].
86 At [41].
87 At [37].
88 Ibid.
89 At [43]. However this is only a minority opinion, and must be weighted accordingly.
90 West Coast ENT Inc v Buller Coal Limited, above n 1 at [3].
tonnes of coal,91 would have on the planet’s atmosphere.92 In their reasoning, the Supreme Court majority raised concerns about allowing “backdoor regulation” through ancillary consents, with the consideration of climate change effects in non-discharge applications, and held that if Parliament intends to regulate the export of coal, then this should be left to central government to prescribe.93 However, Nathan Jon Ross concludes:94
Could it really have been the legislature’s true intention to remove from the internal workings of New Zealand’s principal piece of environmental legislation virtually all opportunities, both negative and positive, to consider the one environmental issue that adversely affects all others?
Elias CJ dissented, arguing that the:
[4] 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.
Consequently, Elias CJ does not 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.”95 For the reason that s 104(2) provides that “any adverse effect of the activity for which consent is sought” is part of the s 104(1)(a) consideration. 96
I support this approach. Arguably, Parliament does not intend for developers to be liable for the end- use of coal for which they are not burning, but there is a strong argument for consent authorities to at least consider these end use effects. Geoffrey Palmer stated “The Supreme Court decision is arguably wrong, as pointed out in the dissent of Elias CJ, because the majority did not address
91 (Which was to be removed from the Escarpment Mine in a period of 5 to 12 years).
92 At [14].
93 At [169].
94 Geoffrey Palmer "New Zealand's Defective Law on Climate Change" (2015) 13 NZJPIL 115128; and Nathan Jon Ross "Climate change and the resource management act 1991: A Critique of West Coast ENT Inc v Buller Coal Ltd" (2015) 46(4) Law review (Wellington) 1111 at 1142.
95 West Coast ENT Inc v Buller Coal Limited, above n[4].
96 At [4].
whether the sustainable management test in s 5 of the RMA had been met.”97 Hence the majority and minority of the Supreme Court adopted different statutory interpretation techniques: with the majority taking the purposive approach to s 3 of the Amendment Act, and Elias CJ taking a literal approach to the legislation. Whata J acknowledged in the High Court decision that“An interpretation therefore that best secures sustainable management would presumptively favour, in the unusual circumstances of this case, assessment of those effects under s 104(1)(a).”98
On the issue of “end use”, the Supreme Court in Buller Coal adopted the causal tests in Beadle: the limits of nexus and remoteness, without criticism, noting that it is a “question of fact and degree” whether the consequential effects on the environment of activities for which consent is sought are taken into account by consent authorities.99 To determine this test, the majority turned on three considerations: the indirectness, extra-territoriality and tangibility of the climate change effects.
The Supreme Court’s determination of these issues can be contrasted with Australian jurisprudence which deems “end use” effects to be relevant to consent authority decision-making.
The Buller Coal majority held:
[172]... we are satisfied that in s 104(1)(a), the words “actual or potential effects on the environment” in relation to an activity which is under consideration by a local authority do not extend to the impact on climate change of the discharge into air of greenhouse gases that result indirectly from that activity.
The Supreme Court found the end use of coal to be irrelevant, on the basis that the climate change effects were too indirect from the activity. They accepted that “sometimes” “effects on the environment of activities which are consequential on allowing the activity for which consent is sought” have been considered by
97 Geoffrey Palmer "New Zealand's Defective Law on Climate Change" (2015) 13 NZJPIL 115, above n127.
98 Royal Forest & Bird Protection Society of New Zealand Incorporated v Buller Coal Limited [2012] NZHC 2156 at [51].
99 Clutha District Council v Otago Regional Council, above n 2 at [50]; and West Coast ENT Inc v Buller Coal Limited, above n 1 at [33].
consent authorities.”100 However, the climate change effects are “direct effects of burning coal, rather than mining it”,101 and thus they held they were too indirect.
Rather than utilising arbitrary tests of “nexus and remoteness”, the NSWLEC in Gray v Minister of Planning102 found that the test of causation was met by a “real and sufficient” link between the proposed coal mine and the release of substantial greenhouse gases that would invariably lead to climate change.103 Pain J affirmed that the impact from burning the coal would be experienced globally, as well as in NSW, and the fact the impact is currently not able to be fully ascertained, “does not suggest that the link to causation of an environmental impact is insufficient.”:104
Climate change/global warming is widely recognised as a significant environmental impact to which there are many contributors worldwide but the extent of the change is not yet certain and is a matter of dispute. The fact there are many contributors globally does not mean the contribution from a single large source such as the Anvil Hill Project in the context of NSW should be ignored in the environmental assessment process.
Pain J held that where ‘serious irreversible environmental damage can be classified as relatively certain because the causal link between the action and the damage... [then] preventative measures are accepted as necessary.’105 Consequently, scope 3 emissions (from the indirect/downstream combustion)106 of coal mined from the proposed activity, were considered a necessary part of the environmental assessment process. 107 In Wollar Property Progress Association Inc v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92, Sheahan J noted that although not defined, ‘downstream emissions’ are commonly understood to denote the greenhouse gas emissions relating to sold goods
100 At [119].
101 At [117].
102 Gray v Minister for Planning, above n
103 Susan Glazebrook, "The Role of Judges in Climate Governance and Discourse" [2020] WkoLawRw 2; (2020) 28 Wai L Rev 3 115 at 21, citing Gray v Minister for Planning, above n at [97].
104 Gloucester Resources Ltd v Minister for Planning, above n at [518] citing Gray v Minister for Planning, above n at [98].
105 At at [130].
106 Scope 1 emissions - direct emissions from owned or controlled sources, Scope 2 emissions - indirect emissions from generation of purchased electricity, steam, heating and cooling of reporting company, and Scope 3 emissions - all other indirect emissions that occur in a company’s value chain (downstream emissions - i.e. the burning of coal).
107 At at [126], [130].
and services and thus caused by end users’ use of the product (e.g. transportation and combustion of coal) produced by a project”.108
Hence, Australia does not consider downstream Scope 3 emissions to be too indirect, if they satisfy the “sufficient causal link” test between the action and damage. This is advantageous, because clearly the emissions of the coal are intended effects from the proposed activity (albeit downstream) and inevitable. Distinguishing from risk, the burning of coal is not an unintended consequence of the activity. Rather, coal is mined to be burnt, and hence this would satisfy the “sufficient causal link” test for end use effects to be a relevant consideration for consent authorities. Glazebrook J acknowledges that the serious global consequences of climate change mean that “no reduction of greenhouse gas emissions is negligible.”109 Indeed, as climate science and attribution research develops, this may increasingly enable courts to draw causative links between climate change and the end-use/consequential effects. However, the global nature of climate change is sufficiently established, to prove the relevance of end use effects.
Additionally, the consideration of climate change effects under s 104(1)(a) can enable the mitigation of adverse effects, rather than the adaption. Baillie posits that:110
When it comes to preventing adverse effects, “it is better to put a fence at the top of a cliff than to station an ambulance at the bottom.”
This case raised extra-territorial issues, where once mined, the coal would be exported to India and China, which lay beyond New Zealand courts’ jurisdiction. The majority acknowledged that the “principle that statutes do not have extraterritorial effect is not strictly engaged, given that the effects of climate change are global.”111 Indeed, Elias CJ considers that the effects are “moreover effects in New Zealand by reason of the phenomenon of global climate change.”112 However the
108 Gloucester Resources Ltd v Minister for Planning, above n at [503] citing Wollar Property Progress Association Inc v Wilpinjong Coal Pty Ltd, above n at [126].
109 Susan Glazebrook, "The Role of Judges in Climate Governance and Discourse" [2020] WkoLawRw 2; (2020) 28 Wai L Rev 3, above n 115 at 23.
110 Sarah Baillie "“RMA and Climate Change”" (2013) 11 NZLJ at 13; Sir Truby King, attributed.
111 West Coast ENT Inc v Buller Coal Limited, above n 5 at [175].
112 At [9].
Supreme Court majority upheld Whata J’s decision in the High Court that the overseas discharges of greenhouse gases from the use of coal extracted in New Zealand are “simply too remote.”113
The central question is whether the discharges and their effects are subject to the jurisdiction of a local authority. Whata J acknowledges that s 15 of the RMA, precludes from applying resource consents outside of New Zealand’s territorial boundary, so “there is no remit to require consent from overseas discharges.” While this is true, I posit that mere regard is to be had to these overseas end use effects. Especially, given the ubiquitous impacts from climate change, and the indisputable connection between approving the coal mine consent and the end-use of the coal.
Whata J notes that “to the extent that there is a gap [in the regulation], it is not to be filled by the s 104(1)(a) assessment.”114 However his Honour does not suggest:115
[54]...that the effects of an activity located within New Zealand, that extend beyond New Zealand’s territorial boundary are not capable of assessment. That is simply an issue of scale, not jurisdiction or justiciability.
Australia deals with issue of extra-territorial end use effects very differently. In Gloucester Resources v Minister for Planning [2019] NSWLEC 7, Chief Justice Preston held there was a sufficient ‘causal link’ between the greenhouse gas emissions (including scope 3 emissions) resulting from the proposed Rocky Hill Mine, and climate change and its consequences.116 Preston CJ definitively held that ‘all of the direct and indirect GHG emissions of the Rocky Hill Coal Project will impact on the environment,’ stating that ‘all anthropogenic GHG emissions contribute to climate change.’ 117 He also rejected that consent authorities could offset the consequential effects of a project by considering the possibility of abatement and emissions reduction schemes.118 He also rejected the ‘carbon leakage’ argument, that corporations would seek to mine in countries with less stringent climate law, on the basis that Australia has to uphold its international obligations under the Paris agreement.
113 Royal Forest & Bird Protection Society of New Zealand Incorporated v Buller Coal Limited [2012] NZHC2156 at [52].
114 At [55].
115 At [54].
116 Gloucester Resources Ltd v Minister for Planning, above n at [525].
117 At [514].
118 At [532].
Elias CJ recognised that “tangibility” is not a concept derived from the RMA, and “...at most [it could be] an aspect of the remoteness arguments.”119 However, in Buller Coal, the majority considered the “tangibility” of climate change effects from the end use of coal, to be a significantreason to exclude the effects on climate change.120 considerations:
In reaching this conclusion, they relied on two
Firstly: 121
[122] (a)...there is scope for doubt as to whether New Zealand’s coal output would make any appreciable difference to the worldwide use of coal...
The first statement is an example of the “market substitution” argument, the suggestion that if the proponent does not mine and sell coal, someone else will. In the New South Wales Land and Environment Court (NSWLEC), Preston CJ dealt with this issue very differently in Gloucester Resources v Minister for Planning, 122 stating that: 123
There is also a logical flaw in the market substitution assumption. If a development will cause an environmental impact that is found to be unacceptable, the environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact.
Therefore, Preston CJ rejected this argument, and additionally he found that there was no certainty that overseas mines would substitute the emissions for the proposed Rocky Hill mine. This rebuts the majority’s proposition in Buller Coal that “since steel manufacturers will, whatever happens in New Zealand, burn whatever coal is required for their purposes, the emissions of CO2 which result from their operations [may] not properly be seen as a consequence or effect of the mining of coal in New Zealand...”124 Indeed, the Supreme Court of the Netherlands noted that “It is an established
119 West Coast ENT Inc v Buller Coal Limited, above n[89].
120 At 5 at [89].
121 At [121] (a).
122 Gloucester Resources Ltd v Minister for Planning, above n 5.
123 At [545].
124 West Coast ENT Inc v Buller Coal Limited, above n 5 at [121].
fact that climate change is a global problem and therefore requires global accountability.”125 Hence, New Zealand ought to uphold its obligations under the Paris agreement, by considering the climate change effects of the end use of coal, within consent authority decision-making for non-discharge consents.
Secondly, the majority in Buller Coal relied on the de minimis consideration to bolster their argument that “climate change effects” were too intangible to be considered by consent authorities:126
(b) In any event, it would be difficult, and probably impossible, to show that the burning of coal would have any perceptible effect on climate change.
New Zealand cases recognise that “effects that are so small or so remote as to de minimis can be disregarded.”127 The Court of Appeal in Genesis Power Ltd v Greenpeace New Zealand Inc addressed this argument:128
... given New Zealand’s comparatively low contribution to worldwide GHG emissions and the infinitesimal contribution which any particular project could make, there could be no demonstrable linkage between GHG emissions associated with any particular project and climate change generally.
However in Environmental Defence Society Inc v Taranaki Regional Council, the Environment Court held that due to the global impact and outreach of greenhouse gas emissions, “while it cannot be measured scientifically, the effect of the proposed plant will nevertheless be more than “de minimis” or “vanishingly small”.129 Accordingly, the greenhouse gas emissions from the proposed activity were not held to be de minimis, despite equating to “one millionth of the total annual global emissions”, and they were relevant despite not being able to “identify any definable effects
125 Urgenda Foundation v Kingdom of the Netherlands 19/00135, 20 December 2019 at [4.79]
126 West Coast ENT Inc v Buller Coal Limited, above n 5 at [121] (b).
127 Protect Aotea v Auckland Council, above n 6 at [46]; and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 6 at [61].
128 West Coast ENT Inc v Buller Coal Limited, above n 5 at [123]; and Genesis Power Ltd v Greenpeace New Zealand Inc [2007] NZCA 569, [2008] 1 NZLR 803 at [17].
129 West Coast ENT Inc v Buller Coal Limited, above n 5 at [125]; and Environmental Defence Society Inc v Taranaki Regional Council EnvC Auckland A/184/2002, 6 September 2002 at [24].
attributable from the application site, locally, regionally or globally.”130 Therefore, New Zealand case-law is varied on the application of the ‘de minimis’ argument to greenhouse gas emissions.
In relation to climate change, this de minimis argument (that the specific contribution of individual polluters is so small that causation cannot be proved)131 has fallen out of favour in overseas jurisdictions. The Supreme Court of the Netherlands recently rejected this argument in Urgenda, stating that:132
...a country cannot escape its own share of the responsibility to take measures by arguing that compared to the rest of the world, its own emissions are relatively limited in scope.
In that case, a ‘sufficient causal link’ was found between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate.133 Therefore, the majority in Buller Coal’s arguments relating to the “tangibility” of climate change effects deriving from the end use of coal, are incongruous with overseas jurisdictions that have rejected the market substitution and de minimis arguments in relation to climate change.
Hence, Australia circumvents the arguments the Supreme Court made in Buller Coal regarding the indirectness, extra-territorial element and tangibility of climate change effects from the end use of coal. New Zealand could follow in adopting the “sufficient causal link” approach, to uphold their international obligations and provide for intergenerational equity under the United Nations Framework Convention on Climate Change.134 Although there is dispute whether the regulation of climate change effects lies with central government or local authorities, Ross notes that “The CCRA was intended to be the central pillar of climate change policy, but not the whole edifice.”135 Hence, there is arguable scope to consider climate change effects under s 104(1)(a), and adopt the
130 West Coast ENT Inc v Buller Coal Limited, above n 5 at [125]; and Environmental Defence Society Inc v Taranaki Regional Council, above n 99 at [19].
131 Susan Glazebrook "The Role of Judges in Climate Governance and Discourse" [2020] WkoLawRw 2; (2020) 28 Wai L Rev 3 at 21.
132 Susan Glazebrook, "The Role of Judges in Climate Governance and Discourse" [2020] WkoLawRw 2; (2020) 28 Wai L Rev 3, above n22, citing
Urgenda Foundation v Kingdom of the Netherlands, above n 95 at [5.6.1]-[5.8].
133 At [4.90]
134 United Nations Framework Convention on Climate Change (opened for signature 4 June 1992, entered into force 21 March 1994), art 3.1
135 Ross, above n 94 at 1130.
NSWLEC’s approach, especially given that the focus of the RMA is on mitigating the adverse effects of activities, rather than the activities themselves.136
136 Resource Management Act 1991, above n 3 at s 5.
IV. The “End Use” of Water
The relevance of end use and consequential effects on the environment, is considered in a series of cases involving water bottling consents. Namely, whether consent authorities ought to consider the end use (export and use of plastic water bottles) and their consequential effects on the environment, when determining an application for a water bottling plant.
The leading decision137 is Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, which involved a proposal to expand an existing spring water extraction and bottling operation near Otakiri.138 The High Court dismissed appeals against the Environment Court’s granting of consents for the taking of groundwater and the varying of land use consent conditions. In the Environment Court decision,139 Judge Kirkpatrick noted that:
[34] The issue is whether, and if so to what extent, a consent authority or, on appeal, the Court, should or may consider matters beyond the particular activity for which consent is sought and take into consideration the end use of whatever may be produced by that activity or the effects of other activities for which consent is not required.
The Environment Court considered many of the criteria discussed in Buller Coal, and preceding case law, including whether the end-use effects were covered by other regulations, and tangibility - the market substitution and de minimis arguments. Judge Kirkpatrick acknowledged that “such end uses are foreseeable” and the adverse effects on the environment of using plastic bottles may well be adverse.”140 However, given the clear scientific evidence regarding the ubiquitous plastic pollution, the end use effects of the water bottles are arguably more than foreseeable, but inevitable. Indeed, Judge Kirkpatrick even went so far as to say that “we accept that the water would not be taken if it could not be bottled, and the proposed volume would not be taken if it could
137 As of when this dissertation is submitted 7 October 2022.
138 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 6 at [1]. [2020] NZHC 3388.
139 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 6 at [34].
140 At [64]
not be exported.”141 Hence, he is conflating the doctrines of risk and end use, by saying that theeffects of plastic pollution are foreseeable, when they are in fact intended and inevitable.
The Environment Court held that
[66] ...the end uses of putting the water in plastic bottles and exporting the bottled water are matters which go beyond the scope of consideration of an application for resource consent to take water from the aquifer under s 104(1)(a) RMA.
In reaching this decision they acknowledged that they did not have the scope to “effectively prohibit either using plastic bottles or exporting bottled water. Such controls would require direct legislative intervention at a national level.”142 However, considering the end use effects of the plastic bottles, would not prohibit the use of bottles nationwide. The application of end use should not be a factual consideration, but a mandatory legal consideration or framework, which the facts are assessed against. Hence, I respectfully posit that the Environment Court erred, by saying that considering end use effects would prohibit the use of plastic bottles. This consideration of end use effects would merely inform the decision, and the output of the water bottling plant could then be adjusted.
The High Court upheld this decision that the end use effects on the environment of using plastic bottles were “beyond the scope of consideration” for determining the consent application to take water.”143 However Gault J noted that he is not saying that “as a matter of law the effects of plastic bottle or other plastic disposal will always be too remote to warrant consideration (nor suggesting that councils cannot address such effects in their planning documents).”144
Te Rūnanga is significant in its consideration of end use legal principles.145 The High Court accepted the Environment Court’s elucidation of the terms of nexus and remoteness as being:146
141 At [65].
142 At [65].
143 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 6 at [157].
144 At [157].
145 At [56] -[82].
146 At 1 at [81], citing Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21
ELRNZ 539 at [61].
[61] Nexus here refers to the degree of connection between the activity and the effect, while remoteness refers to the proximity of such connection, both being considered in terms of causal legal relationships rather than simply in physical terms. Experience indicates that these assessments are likely to be in terms of factors of degree rather than of absolute criteria and so be matters of weight rather than intrinsically dispositive of any decision.
Gault J held that “remoteness is an issue of fact and degree and I do not consider it is capable of such a statement of law in the abstract.” 147 Hence he is refuting the Environment Court’s sweeping claim that the effects of exporting water are too remote to be considered under s 104(1)(a).
Additionally his Honour held there was “a nexus between the water take and the export of bottled water in this case.”148 (at [140]). Thus, the Court did not accept that the effects of exporting bottled water were “too remote from, or insufficiently connected to, the activity of extracting it from the ground – at least when those effects are cultural effects occurring in New Zealand.”149 (at [141]).
However regarding the extra-territorial nature of this case, Gault J held that given the effects of discarding the bottles would occur overseas, they were too remote and outside the scope of the RMA to consider. However, as in my analysis of Buller Coal, the ‘sufficient causal link’ test utilised in Australia can have application here.
Additionally, although the High Court acknowledges that it is not inevitable that every plastic bottle would be properly discarded, there is arguably more than a risk of unintended consequences, but these effects are intended by the proper exercise of the activity. Hence, they are end use effects and should be considered.
In Pukenamu Estates Ltd v Kapiti Environmental Action Inc, the High Court held that under s 104(1)(a) the consent authority was required to consider the actual and potential effects of the environment of allowing the activity.150 In this case, the effect of earthworks (road and building platforms) were relevant to decision-making regarding a subdivision consent. Ronald Young J held that to interpret s 104(1)(a) only as considering some actual effects of the subdivision would
147 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 1 at [142].
148 At [140].
149 At [141].
150 Clutha District Council v Otago Regional Council, above n 6 at [46] citing Pukenamu Estates Ltd v Kapiti Environmental Action Inc HC Wellington AP106/02, 18 June 2003 at [45].
significantly downgrade the provision, and prevent authorities from looking holistically at the activity requiring resource consent.
When determining remoteness - it has often been posited that it is beyond the scope of local authorities to determine end use effects where they are beyond their control or in the hands of third parties. However, the Environment Court in Cayford v Waikato Regional Council held that the relevance of effects on the environment of a proposed activity is not dependent on whether effects can be the subject of controls.151 So long as the direct effects of exercising that resource consent are inevitable or reasonably foreseeable, and not independent of the activity then regard ought to be had to them and to effects of other activities which would inevitably flow from granting the consent.152
In Te Rūnanga, Gault J held that the environmental and cultural effects for Māori arising out of the use of plastic bottles, and the discarding of plastic bottles overseas were too remote for the consent authority to consider when determining an application to expand a spring water extraction and bottling operation.153 Consistent with Aotearoa Water Action Inc v Canterbury Regional Council, the adverse end use effects on the environment of consumers discarding plastic bottles were held to be too indirect or remote for a water resource consent, and outside the scope of what consent authorities could consider.154 However, this raises questions - what constitutes a sufficient nexus, when arguably the water would not have been extracted if it could not ultimately be bottled and exported. Is this test unduly stringent to facilitate decision-making that adequately protects the environment from these consequential effects?
The NZHC in Te Rūnanga determined the relevance of the export of bottled water by considering adverse metaphysical effects resulting from the loss of te mauri o te wai from the water that is bottled and exported, and the ability of mana whenua to be kaitiaki.155 The Environment court held that there is:156
151 At [47] citing Cayford v Waikato Regional Council, above n 4.
152 At [10].
153 Clutha District Council v Otago Regional Council, above n 6 at [45].
154 At [45]. Ibid.
155 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 6 at [1].
156 At 84, citing Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, above n 86 at [156].
no loss of mauri from the water as the water remains within the broad global concept of the water cycle and is returned to Papatūānuku irrespective of where it is used.
However does this adequately abate Māori concerns - given that “the RMA dictates that the relationship of Māori with their taonga, including their spiritual beliefs, must be taken into account by decision-makers in resource management proceedings” ?157
In July 2021, the Court of Appeal granted leave for appeal,158 and amended the first question of law to encompass end use:159
Did the High Court err in finding that the Environment Court was correct to conclude that the effects on the environment of end use (i.e. export and use of plastic bottles) were beyond the scope of consideration in relation to the second respondent's application for consents to take water, and those relating to land use activities?
This appeal was heard in March 2022. Currently, the judgment has not been released however it will likely delineate this topic and resolve the current ambiguities around end use.
Although not specifically on the issue of end use effects,160 this Court of Appeal case is interesting regarding whether a water take and use need to be considered together. The Court considered whether a historical resource consent granted to take and use water for freezing works, could now be utilised for the purpose of bottling water and selling it. The Court held that there was a direct linkage between the take and the use, as the activity has to be assessed to see whether it is reasonable for the proposed use. Hence, it was considered necessary to consider the water take and use together.161 This case is interesting and has potential implications for the relevance of end use, as the Court of Appeal considered it necessary to consider water take and use together.
157 Warnock, above n 24 at 583; Resource Management Act 1991, ss 5(2), 6(e), 7(a) and 8.
158 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 354
159 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 452
160 Aotearoa Water Action v Canterbury Regional Council [2022] NZCA 325 at [134].
161 At [132].
V. 2022 High Court Decisions:
This year, two High Court decisions have reopened the debate of the relevance of end use and consequential effects, after the Supreme Court and Court of Appeal respectively in Buller Coal and Te Rūngana had seemingly dismissed their application within consent authority decisions.
Clutha District Council v Otago Regional Council 162
This High Court decision involved the application to renew a consent to take water from the Clutha River for a community water scheme.163 The issue was whether the end use of the water (for a dairy wash) was relevant to the consent authority’s assessment under s 104(1)(a). The Environment Court held it was, and the High Court upheld this decision, deciding that:164
[43]...the Court was able to have regard to the consequential effects of the end use of the resource that is the subject of the resource consent application, but with limits of nexus and remoteness.
...
[51] Provided there was a sufficient nexus between consequential effects and they were not too remote, they had to be considered by the Environment Court for the purpose of promoting the sustainable management of natural and physical resources.
The District Council appealed the Environment Court decision on the ground that considering the end use effects was beyond the scope of the Regional Council, and too remote because the end use was by third parties whose activities were not controlled by the consent. However the court held considering these effects facilitated the purpose of “achieving integrated management under the RMA” and the purpose of promoting “sustainable management.”165
Although this case considered end use effects to be relevant under s 104(1)(a), it is currently unclear how far this precedent may extend to future cases. Despite there being a strong nexus and no issue of remoteness, the use of water (end use effect: dairy wash) was “more than inevitable or foreseeable. It was already happening.”166 Does this mean that end use effects have to already be
162 Clutha District Council v Otago Regional Council, above n 6.
163 At [1].
164 At [43].
165 Resource Management Act 1991, above n 3, ss 30(1)(a) and s 5.
happening to be relevant under the s 104(1)(a) assessment? Nation J acknowledges that the use of water for the dairy shed wash was “physically much more connected to the initial take than the case of potential discarding of water bottles produced in the water bottling cases, or the burning of coal."167 Although these effects were more direct in nature (in terms of how far down the supply chain), they were still all inevitable so I beg to differ.
Must end use effects be physically connected to the proposed activity to satisfy the required nexus? Additionally, is this decision only relevant to cases considering the duration of consents? (i.e. does the end use have to already be happening?) It is unclear how far into the future - end use and consequential effects can encompass. This element of temporality can be considered in the criteria to assess nexus and remoteness.
Remoteness
Furthermore, once the end use of the resource is in the hands of third parties whose activities are not controlled by the consent, is it considered to be too remote? (Or is it acceptable, so long as it is within New Zealand? - and does not have to jump the extra-territorial hurdle?)
Therefore, although this case is of great importance by recognising the end use and consequential effects again, many ambiguities and questions are still unanswered.
Protect Aotea v Auckland Council
Presided over by Gault J (who determined Te Rūnanga), this recent High Court decision (17/06/22) was an appeal by Protect Aotea against the Environment Court decision which granted a dredging consent to Ports of Auckland Limited (POAL) under the RMA. The issue was the relevance of the (end use) effects of dumping dredged material outside the territorial sea of NZ, in accordance with a marine dumping consent under the Exclusive Economic Zone and Continental Shelf Act (EEZ Act) 2012.168
This case dealt with the extra-territorial issue, and the existence of another regulatory regime over the end use /consequential effects. The end use (dumping of dredged material) would occur outside the CMA/Coastal Marine Area, and thus beyond the jurisdiction of the RMA, but not beyond (the EEZ Act which applies beyond the CMA). Hence, the question was whether the effects of dumping
dredged material outside the CMA, but within New Zealand’s EEZ are a relevant consideration in the assessment and determination of resource consents?169
POAL argued that because the end use effects were dealt with under the EEZ regime, they should not be considered under the RMA. The Environment Court held that consequential effects may not be relevant under s 104(1)(a) if they are too remote or unrelated. 170 (Effects are subject to the limitations of causation: nexus and remoteness). The High Court also added that “effects that are so small or so remote as to de minimis can be disregarded.” 171 Incontrovertibly there is a clear causal relationship between the proposed activity (dredging) and the end use (dumping of dredged material).172 Put simply, “dredged material needs to be dumped.”173 Hence, the consequential effects of allowing the dredging activity included the effects of dumping the dredged material.
Additionally, the Court held that “environment” is not limited by the scope of the RMA, and extends beyond the CMA.174 The High Court also affirmed that the “environment” may be considered not only in its existing state but also its future state.175
The Environment Court held that consideration of end use must be consistent with other relevant legislation where there is another regulatory regime in place. 176 In this case, there were substantial similarities or at least consistent treatment between the two regimes, given that the EEZ Act is founded on a similar purpose of “sustainable management of resources.”177 Additionally there is nothing explicit in either Act excluding consideration under the RMA of effects that are subject to a marine dumping consent under the EEZ Act.178 Gault J acknowledges that “nexus and remoteness involve factual assessment.”179 He cites Buller Coal - that consequential effects are taken into
169 At [18]
170 At [19].
171 At [46].
172 At [79].
173 At [6].
174 At [23].
175 At [48].
176 At [24].
177 Ibid.
account by consent authorities sometimes, particularly when they are not directly the subject of control under the RMA. However, he notes that in Te Rūnanga - the lack of other regulatory controls was not determinative. 180 Hence, the High Court held that the existence of a comparable regime does not preclude consideration of the end use effects. 181 Additionally, treating the marine dumping consent as part of the existing environment has advantages over treating the EEZ Act regime as breaking the nexus.182
Ultimately, the High Court held that the Environment Court did not err in deciding that the dumping and its effects are relevant to the proposed dredging activities, being connected and proximate to them.183 Hence, given that the tests of nexus and remoteness were satisfied, the end use effects are relevant considerations under s 104(1)(a).
Hence, the existence of another regulatory regime does not prevent consideration. This is an important consideration for ascertaining the “nexus-remoteness” test.
180 At [84].
181 At [88].
CHAPTER THREE
Where does this leave us? The end of end use?
I. Inconsistencies in end use jurisprudence
Clearly, there are inconsistencies within the law pertaining to the consideration of end use effects.
Firstly, there is scant legislative guidance within the RMA on the application of end use effects. End use effects are not explicitly mentioned in the RMA, and despite the broad definition of effects in s 3, it is unclear whether this applies to s 104(1)(a), or whether Parliament only envisages “actual and potential” effects to be considered.184 Additionally, the 2004 Climate Change Amendments are vague regarding the “prohibition” on consent authorities considering climate change effects in applications for non-discharge resource consents. Buller Coal interpreted these as precluding this consideration, however there is no explicit exclusion in the statute.185
Schedule 4 of the RMA, which stipulates the information required for a resource consent application (and the AEE - Assessment of Environmental Effects),186 is also incredibly vague.187 Although the application requires a description of the activity188 and “any other activities that are part of the proposal to which the activity relates”189 end use is not specified and it is unclear how far these related activities extend temporally, geographically and down the supply chain. (Are additional consents required for related activities or do related activities encompass the end use of an activity or the downstream consequential effects on the environment?) Without legislative guidance on the application of end use, there are too many leeways for developers/resource consent applicants to evade providing information on the end use of activities. For example, sch 4 cl 2 (3)(c) stipulates that an AEE must include “such detail as corresponds with the scale and significance of
184 Dye v Auckland Regional Council [2001] NZCA 330; [2002] 1 NZLR 337.
185 Sarah Baillie “The Consideration and Regulation of Climate Change Effects under the Resource Management Act 1991” (LLB(Hons) Dissertation, University of Otago, 2012), above n 61 at 43.
186 Warnock and Baker-Galloway, above n 75 at 193.
187 Resource Management Act 1991, above n 3, sch 4.
the effects that the activity may have on the environment.”190 Without legislative imperative and instruction to include information on end use effects - (effects that are intended to result from the activity), developers can skirt their obligations to provide information on the full scale and significance of the intended activity and its effects. Hence it is necessary to include explicit legislative requirements for end use, so applicants will not have discretion to choose the “scale of the effects” (to be less down the pipe-line than the intended effects) by omitting the end use.
Given the “inherent problem with AEEs,”191 that the applicant provides the information consent authorities rule on, clear legislation is essential to guard against the “risk that an AEE may be used to justify or advocate for consent rather than to objectively set out all the effects.”192 Hence there must be more stringent requirements for AEEs, creating a higher bar and threshold for developers/ applicants for resource consents to meet, which entails a full disclosure of the end use of an activity and the consequential effects on the environment.
The second inconsistency in end use jurisprudence is the erratic judicial treatment in the caselaw. This is partly attributable to the excessive discretion conferred on consent authorities and judges given the vague legislation. Another explanation for the inconsistent caselaw is the judiciary’s failure to clearly delineate between risk and end use, which has resulted in the conflation of these two doctrines. As previously distinguished, “risk-effects” are the unintended consequences which result from if the activity goes wrong/there is an accident (e.g. Aquamarine). This entails complex precautionary reasoning. By contrast, “end use effects” are the intended effects from the proper exercise of an activity (occurring as planned). These doctrines can and should develop separately, however their current conflation is contributing to the plethora of varying precedents on end use. Additionally, there needs to be a clear legal framework from which to consider the facts. The current “factual test” is inadequate.
II. Are these inconsistencies problematic?
These inconsistencies within end use jurisprudence are problematic. Firstly for the parties, who have to ascertain what is required for a resource consent application, and what effects the consent authority has scope to consider. Secondly for the decision-maker - the consent authorities or judges
190 At sch 4, cl 2(3)(c)
on appeal. Their job is complicated by the vast ambiguities in the legislation and precedents. Finally, the inconsistencies within end use jurisprudence is not doing the environment any favours either. There are inadequate ecological protections in place given that end use and consequential effects are not part of the consideration of effects under s 104(1)(a).
Patently, there is the need to find a balance between the flexibility required for regulating environmental problems, and the clarity and certainty required within law (as legal formalism prescribes). This tension permeates through the issue of end use, and remains to be resolved. Furthermore, our institutional structure does not help this, with a discretionary flexible specialist Environment Court, before cases on appeal are considered by legally formalistic generalist courts which strive for certainty and clarity. This does not always result in environmentally conscious outcomes, as is evident in Buller Coal and Te Rūnanga. Australia’s different institutional structure allows cases to remain within an environmentally conscious arena, and the NSWLEC, which has superior court status and inherent jurisdiction, can incorporate environmental law principles in its legal reasoning. Hence, clearly steps must be taken to address the lacuna within the legislation and caselaw regarding the mandatory consideration of end use.
III. Possible solutions?
I need to preface this by saying that I am not an authoritative expert on environmental law regulation and what is advantageous to best protect the environment within New Zealand, as compared to overseas jurisdictions. There are bound to be a myriad of possible solutions, however regardless of which (or the feasibility of any of these as plausible options) it is manifest that change is required, to fully incorporate end use effects within consent authority decision-making. Whether there is a “silver bullet” or not, environmental degradation necessitates some form of action and a solution, because the current legal tests do not suffice. Hence, I do not espouse one of these solutions, but I proffer them all as ideas.
Firstly, one solution is an explicit definition of end use within legislation.193 End use/consequential effects could be defined as the intended effects from an activity coming to fruition or going to plan. This could be contrasted with a legislative definition of risk - effects that are the unintended
consequences of an activity. Explicit definitions of end use would abate concerns regarding the application of end use within the vague s 3 definition of effects, and ensure that these two doctrines are separately delineated.
Legislative clarity around the application of end use to consent authority decision-making would further mitigate the law’s ambivalence and resultant irregular decisions. This could be done with a specific amendment to s 104(1)(a) explicitly clarifying that end use effects are relevant considerations for consent authorities. Parliament could also clarify the position on climate change effects. The Randerson Report recognised the “urgent need to reduce carbon emissions and adapt to climate change” so perhaps this will be addressed in the reforms.194 Alternatively, legislative clarity could occur through the regulation of AEEs and (what is currently Schedule 4 - the information required for resource consents). In NSW, Australia, Environmental Impact Statements (EIS) for the mining sector must “comprehensively forecast and assess the greenhouse gas emissions, including downstream or scope 3 emissions, such as from burning exported coal.”195 However the Environmental Defenders Office NSW196 acknowledges that the Planning Act should explicitly set “clear obligations for greenhouse gas emissions and climate change impacts as part of the EIA process.”197
The jurisprudence should be clear in recognising the difference between intended and unintended consequences. A clear legal delineation between these two doctrines may mean the “nexus and remoteness” test is less necessary. However, an explicit list of criteria to take into account when considering nexus and remoteness should be stipulated, either in legislation, or a Court practice note. These mandatory criteria for the decision-maker to consider, could include: geographical distance (extra-territoriality), temporal distance, the existence of another regulatory regime (which is not determinative), and where on the supply chain the end use is.
194 Resource Management Review Panel New Directions for Resource Management in New Zealand: Summary and Key Recommendations (Resource Management Review Panel, Report, June 2020) at 1.
195 Climate-ready planning laws for NSW – Rocky Hill and Beyond (The Environmental Defenders Office, March 2019) at 38. This is after the 2015 NSW Government released the Indicative Secretary’s Environmental Assessment Requirements for state significant mining proposals.
196 The leading public interest environmental law organisation in Australia.
Australia has evidenced the possibility of considering extra-territorial end use effects in mining consent decisions, where there is a “sufficient causal link” between the proposed activity (coalmine) and the downstream Scope 3 emissions.198 This is incongruous with the NZSC majority
decision in Buller Coal, which held that extra-territorial climate change effects were outside the jurisdiction of a local authority.199 However, Preston CJ (of the NSWLEC) advocated for the consideration of extra-territorial end use effects by stating that “consideration of the impacts of the Project on the environment and the public interest justify considering... Scope 3 emissions.”200 This “sufficient causal link” test for ascertaining end use effects (which has been applied in Australia and the Netherlands) could be applied in New Zealand, and even confirmed in legislation if need-be.
Hence, via this test there is scope for climate change effects to be taken into account. Additionally New Zealand can fulfil its global responsibility under the Paris Agreement201 to “take mitigation measures to reduce GHG emissions”202 , by considering end use effects.
Should the “sufficient causal link” test not suffice, another way to ensure that end use effects are always considered, could be to extrapolate the test of causation confirmed in Waitakere City Council v Estate Homes Ltd 203 for attaching conditions to resource consents. In Waitakere, the New Zealand Supreme Court held that a condition must be “logically connected” to the development.204 This iteration of the Newbury DC v Secretary of State for the Environment205 test that conditions must “fairly and reasonably” relate to the permitted development,206 does not require a direct causal link
198 Gloucester Resources Ltd v Minister for Planning, above n 5 at [525]. See discussion in Chapter 2. III.
199 West Coast ENT Inc v Buller Coal Limited, above n 5 at [111] citingRoyal Forest & Bird Protection Society of New Zealand Incorporated v Buller Coal Limited, above n at [51]-[53].
200 Gloucester Resources Ltd v Minister for Planning, above n 5 at 513.
201 United Nations Conference of Parties’ Paris Agreement in 2015 (COP21): Paris Agreement (opened for signature 16 February 2016, entered into force 4 November 2016)
202 Gloucester Resources Ltd v Minister for Planning, above n 5 at 539.
203 Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149
204 At [66].
205 Newbury DC v Secretary of State for Environment [1981] AC 78 (UK HL). Often referred to as the “Newbury test”.
206 At 618.
between the condition and the effects stemming from the proposed activity,207 rather, a logical connection is sufficient. This test could be applied to end use, given that the Waitakere test involves similar environmental law concepts. Whether an end use effect is “logically connected” to a proposed activity may have more success at ensuring the inclusion of end use effects, than the more arduous requirements of nexus and remoteness. Indeed, it is almost inconceivable that the end use of coal and the consequential climate change effects are not “logically connected” to the proposed activity of a coal mine.
Additionally, resource consent conditions could require the mitigation of end use effects. Discount Brands Ltd v Westfield (New Zealand) Ltd demonstrates that conditions can be creative.208 In that case, the consent authority imposed a condition on a consent to open a shopping centre, that the goods sold at the outlet mall had to be sold at 35 per cent under normal retail price.209 Hence, consent authorities could impose conditions to ensure developers help mitigate climate change effects and the end use of their proposed activity.
The awaited Court of Appeal judgment of Te Rūnanga may well settle the extra-territorial issue and apply either of these tests, to consider the end use (the export and use of plastic bottles).
The reform of the RMA is the perfect opportunity to ensure end use effects are mandatory considerations for consent authorities. However perhaps more transformative change is required than legislative specification, in order to adequately safeguard the environment. As previously elucidated, New Zealand’s institutional structure with the Environment Court as a specialist “inferior court of record” appealing to generalist courts, increases the tension between flexibility and certainty, resulting in inconsistent precedents.210 By contrast, the NSWLEC as a “superior court of record” has a “comprehensive jurisdiction” and is “able to exercise jurisdiction formerly exercised by the Supreme Court of New South Wales in relation to environmental matters.”211 Its
207 Warnock and Baker-Galloway, above n at 243.
208 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17; [2005] 2 NZLR 597.
209 At [4].
210 Brian J. Preston “Characteristics of Successful Environmental Court and Tribunals” (2014) 26 J. ENVTL. L. 365 at
366. When analysing environmental courts and tribunals, Preston distinguishes between the NSWLEC as a “superior court of record” and the Environment Court of New Zealand as an “inferior court of record.”
211 At 374.
approach to statutory interpretation enables a “free-er” use of environmental law principles, than the NZEnvC which acts conservatively as an inferior/tribunal court. Hence, implementing institutional change, with the establishment of a more authoritative Environment Court with broader powers could enable the consideration of end use. Additionally Preston notes that the:212
...establishment of the NSWLEC as a superior court of record with comprehensive jurisdiction in environmental matters represented a public acknowledgement of the importance of environmental issues and a public pronouncement of the Court and its decisions.
Therefore this could be a viable option to safeguard the environment and include end use effects.
More importantly however, we need to rethink how we conceive of the environment and our place in it. John Dryzek’s concept of environmental discourses could be a normative lens to conceive of end use with, when determining the future regulation of end use effects under the RMA reform. He notes that a “discourse is a shared way of apprehending the world.”213 214
Embedded in language, it enables those who subscribe to it to interpret bits of information and put them together into coherent stories or accounts. Discourses construct meanings and relationships, helping to define common sense and legitimate knowledge. Each discourse rests on assumptions, judgments, and contentions that provide the basic terms for analysis, debates, agreements and disagreements.
Arguably, the current environmental discourse is “sustainable management”, the overarching purpose to the RMA.215 However, Upton notes that:216
212 At 367.
213 Dryzek’s concept of discourse owes much to the efforts of Michael Foucault, who defines discourse as "a structure of power relations that manifests in the social order as a result of a combination of attitudes, ideas and institutions.” Peter Burdon, “Wild Law: A Proposal for Radical Social Change” (2015) 13 NZJPIL 157 at 167.
214 Dryzek, above n 13 at 9.
215 Resource Management Act 1991, above n , s 5.
216 Simon Upton, “RMA Reform, coming full circle” (Address to Resource Management Law Association: Salmon Lecture, 2020) at 4, citing Simon Upton “Purpose and Principle in the Resource Management Act” [1995] WkoLawRw 2; (1995) 3 Waikato Law Review 17.
...unless it is a bottom line, sustainable management ceases to be a fixed point or pre-eminent principle and sinks back into being a mealy- mouthed manifesto whose meaning is whatever decision-makers on the day want it to be.
Evidently, the current sustainable management environmental discourse of “mitigating adverse effects” is ill-equipped to safeguard the environment when end use effects are not considered.217
“Discourses are bound up with political power.”218 Burdon notes that today the dominant discourse is neoliberal capitalism, which constructs the environment in anthropocentric terms, as a “resource that exists for human use and exploitation.”219 Viewing the outcomes of Buller Coal and Te Rūnanga through this discourse, partially explain how the government “remove[d] from local government virtually all opportunities, both negative and positive, to consider the one environmental issue that adversely affects all others.”220
By shifting the dominant discourse from neoliberal capitalism to an effective environmental discourse, meaningful change could be achieved. Dryzek posits that imaginative environmental discourses seek to “redefine the political-economic chessboard” and view environmental problems
as opportunities rather than problems.221 Hence, ensuring that new legislation is framed in an
ecological (as opposed to anthropogenic) discourse could aid the integration of end use.
217 Resource Management Act, s 5.
218 Dryzek, above n 13 at 9.
219 Peter Burdon “Wild Law: A Proposal for Radical Social Change” (2015) 13 NZJPIL 157 at 168.
220 Geoffrey Palmer "New Zealand's Defective Law on Climate Change" (2015) 13 NZJPIL 115, above n at 128 citing Ross, above n.
221 Dryzek, above n 13 at 14. C.f. imaginative environmental discourses to prosaic.
Conclusion
Patently, the consideration of “end use” effects is a relevant and crucial component to consent authority decision-making under s 104(1)(a) of the RMA. It is imperative that consent authorities consider “end use” effects in order to safeguard the environment, uphold intergenerational equity and to consider effects that are often otherwise unregulated. Given the permanent nature of resource consents, the prescient mitigation of effects will be advantageous to the adaptation of effects. This approach aligns with the sustainable management purpose of the RMA, which arguably would be “warped” should end use not be a valid consideration for consent authorities.222
Case law validates that consent authorities are permitted to consider “end use” effects on the environment, within the limits of nexus and remoteness. However, the case law is inconsistent in its application of “end use” effects within consent authority decision-making. This inconsistency is partly attributable to the inherent tension between the flexibility and discretion that environmental problems necessitate, and the central tenet of legal formalism: clarity and consistency within the law. This tension permeates “end use” jurisprudence, and is manifest in judges grappling to resolve this issue in difficult cases such as Buller Coal and Te Rūnanga. I posit that the pendulum needs to swing more in the direction of certainty, with a clear framework outlining the various considerations for determining the “nexus and remoteness” of end use effects. These considerations could include whether the effects are indirect, extra-territorial, covered by another regulatory regime,223 intangible, and their temporality both in time, distance and how far down the supply chain they are.
The varied judicial treatment of “end use” is also ascribable to the conflation of the risk of unintended consequences with the end use (intended or inevitable effects) of a proposed activity. I advance that “end use” and “risk” effects should be dealt with differently in legal reasoning, which will enable the doctrines to develop separately, and the reification of end use as a mandatory consideration. It may be that by clearly delineating between risk and end use, this will abate the need for the “nexus and remoteness” tests of causation, which are currently failing to ensure the consideration of end use effects. Cayford, Aquamarine and Beadle are examples of “risk” - where the consequential effects are potential or foreseeable, but not inevitable. By contrast, Buller Coal, Te Rūnanga, Clutha DC and Protect Aotea exemplify “end use effects”, where the effects are intended
222 Sarah Baillie “The Consideration and Regulation of Climate Change Effects under the Resource Management Act 1991” (LLB(Hons) Dissertation, University of Otago, 2012), above n 62 at 57.
223 This does not preclude the consideration of end use.
from the proper exercise of the proposed activity. This is an important distinction in a factualsetting, however despite this, the cases were decided inconsistently.224 Simply put, “risk effects”
(the unintended consequences of an activity) are mere possibilities, whereas “end use effects” are envisaged from the outset and definite.
Considering end use in environmental decision-making promotes the accountability of resource consent applicants to mitigate the consequential effects, and enables New Zealand to uphold its international obligations. Although climate change effects are now recognised as inevitable from certain activities and not a risk,225 the 2004 Amendments precluded the consideration of climate change effects in relation to discharge consents. Additionally, Buller Coal “disabled New Zealand’s key environmental statute ... from considering what is a critical issue relating to climate change.”226 Conceivably the Court of Appeal in Te Rūnanga may elucidate this issue of the consideration of “climate change effects.” It is delusory and living without consequences to only consider the direct effect of the activity (e.g. the coal being mined) and not consider the end use and consequential effects on the environment (climate change effects from the coal combustion). The consideration of end use under s 104(1)(a) would fill this lacuna in the law, and enable the whole activity to be considered.
As a result of the unclear precedents and some judges’ failure to demarcate end use and risk, there are a number of inconsistencies within the law. These inconsistencies have ramifications on the parties involved, decision-makers, and most importantly the environment. Possible solutions include expounding “end use” and “risk” legislative definitions, creating a legislative framework for the incorporation of end use effects, adopting the “sufficient causal link” or “logically connected” test to bypass extra-territorial concerns, institutional change, and framing the impending RMA reforms in an environmental discourse.
I hope this message in a bottle will reach someone, and send an “SOS to the world” about the exigencies of the situation, to ensure that end use effects are an inviolable consideration for consent authorities.
224 (In Cayford the effects were excluded, but in Aquamarine - they were included). (In Cayford the effects were excluded, but in Aquamarine - they were included).
225 (Such as coal combustion and plastic pollution)
226 Geoffrey Palmer "New Zealand's Defective Law on Climate Change" (2015) 13 NZJPIL 115, above n at 127.
Bibliography
A. Cases
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AFFCO New Zealand Ltd v Far North District Council (No 2) [1994]. Aotearoa Water Action Inc v Canterbury Regional Council [2020] NZHC 1625. Aotearoa Water Action v Canterbury Regional Council [2022] NZCA 325 Aquamarine v Southland Regional Council [1996] NZEnvC 67; (1996) 2 ELRNZ 361.
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2. Australia:
BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274.
Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7.
Gray v Minister for Planning [2006] NSWLEC 720, [2006] 152 LGERA 258.
Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment
[2021] FCA 560 [Sharma No 1].
Wollar Property Progress Association Inc v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92.
3. Netherlands:
Urgenda Foundation v Kingdom of the Netherlands 19/00135, 20 December 2019.
4. United Kingdom:
Newbury DC v Secretary of State for Environment [1981] AC 78 (UK HL).
5. United States:
Juliana v United States 947 F 3d 1159 (9th Cir 2020).
B. Legislation
1. Statutes
Climate Change Response Act 2002. Resource Management Act 1991.Resource Management (Energy and Climate Change) Amendment Act 2004. Health Act 1956.
2. Regulations
Resource Management Amendment Act 2020 Commencement Order 2021.
C. Treaties
United Nations Conference of Parties’ Paris Agreement in 2015 (COP21): Paris Agreement (opened for signature 16 February 2016, entered into force 4 November 2016).
United Nations Framework Convention on Climate Change (opened for signature 4 June 1992, entered into force 21 March 1994).
D. Books and Chapters in Books
Maree Baker-Galloway Environmental law (Continuing Legal Education, New Zealand Law Society, Wellington, 2021).
Klaus Bosselmann and others Climate change in New Zealand : scientific and legal assessments
(New Zealand Centre for Environmental Law, Auckland, 2002).
Sean Coyle and Karen Morrow The philosophical foundations of environmental law : property, rights, and nature (1st ed, Hart Publishing, Oxford Portland, Oregon, 2004).
John S. Dryzek The Politics of the Earth (Oxford University Press, Oxford New York, 2005).
Elizabeth Fisher, Bettina Lange and Eloise Scotford Environmental law : text, cases, and materials
(Second edition. ed, Oxford University Press, Oxford, United Kingdom, 2019).
Jorge E Viñuales, “Part 4: Legal Organisation of the Transition’ and ‘Conclusion: A Research Agenda” in The Organisation of the Anthropocene: In Our Hands? (Brill 2018), 56–72.
Ceri Warnock and Maree Baker-Galloway Focus on resource management law (LexisNexis NZ Ltd, Wellington, 2015).
Ceri Warnock “The Struggle to Make Legal Sense of Specialist Environment Courts.” Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy. (Oxford, Hart Publishing, 2020)
E. Journals
Sarah Baillie “RMA and Climate Change” (2013) 11 NZLJ.
Alexandra Briscoe “Of Climate Change, Quantum Physics and Causation: Is it Time for a Probabilistic Approach to Causation in Tort Law?” (2022) 53 VUWLR 159.
Peter Burdon “Wild Law: A Proposal for Radical Social Change” (2015) 13 NZJPIL 157.
Susan Glazebrook “The Role of Judges in Climate Governance and Discourse” (2020) 28 Was L Rev 3.
Neil Gunningham “Environment Law, Regulation and Governance: Shifting Architectures” (2009) 21(2) Journal of Environmental Law 179.
Julia Harker, Prue Taylor and Stephen Knight-Lenihan "Multi-level governance and climate change mitigation in New Zealand: lost opportunities" (2017) 17(4) Climate policy 485.
Geoffrey Palmer “New Zealand's Defective Law on Climate Change” (2015) 13 NZJPIL 115.
Brian J. Preston “Characteristics of Successful Environmental Court and Tribunals” (2014) 26 J. ENVTL. L. 365.
Nathan Jon Ross “Climate change and the resource management act 1991: A Critique of West Coast ENT Inc v Buller Coal Ltd” (2015) 46(4) Law review (Wellington) 1111.
Greg Severinsen “Climate change considerations under the resource management act: A barrier to carbon capture and storage deployment in new Zealand?” (2014) 22 Waikato law review : Taumauri 117.
Simon Upton “Purpose and Principle in the Resource Management Act” [1995] WkoLawRw 2; (1995) 3 Waikato Law Review 17.
Ceri Warnock “Understanding the objective: psychological effects in environmental decision- making” (2011) 24 NZULR 574.
Joseph Williams “Lex Aotearoa. An Heroic Attempt to Map the Maori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato Law Review 1.
F. Reports
Climate-ready planning laws for NSW – Rocky Hill and Beyond (The Environmental Defenders Office, March 2019).
Resource Management Review Panel New Directions for Resource Management in New Zealand: Summary and Key Recommendations (Resource Management Review Panel, Report, June 2020).
United Nations Environmental Programme Global Climate Litigation Report: 2020 Status Review (Nairobi, 2020).
G. Dissertations
Sarah Baillie “The Consideration and Regulation of Climate Change Effects under the Resource Management Act 1991” (LLB(Hons) Dissertation, University of Otago, 2012).
Annabel Burgess “Climate Change and the RMA: Consideration of Greenpeace New Zealand Incorporated v Genesis Power Ltd and West Coast ENT Inc v Buller Coal Ltd” (LLB (Hons) Dissertation, University of Otago, 2015).
H. Speech/Conference Papers
Simon Upton, “RMA Reform, coming full circle” (Address to Resource Management Law Association: Salmon Lecture, 2020).
Word count
The text of this dissertation (excluding footnotes and the bibliography) comprises approximately 14,041 words.
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URL: http://www.nzlii.org/nz/journals/UOtaLawTD/2022/25.html