Supreme Court: Climate Change Regulation to Stay National - International Law Office

Facts
Majority Judgment
Minority Judgment


In December 2008 the long-awaited Supreme Court decision on Greenpeace New Zealand Inc v Genesis Power Ltd (NZSC 112) was released. A four-to-one majority of the court reaffirmed the Court of Appeal decision that consent authorities must not have regard to the effect of greenhouse gas discharges on climate change when considering granting discharge permits for non-renewable energy proposals. The decision of the court effectively prohibits the consideration of discharge effects for non-renewable proposals, as effects on climate change are to be dealt with at national level, rather than local. Effects can be considered in relation to renewable energy projects, but only the beneficial effects of reduced discharges through proposed renewable energy can be considered.

Facts

Genesis Power Ltd applied to Auckland Regional Council for a resource consent to permit the discharge of greenhouse gases from a proposed large-scale thermal power plant in the Rodney District, north of Auckland City. Litigation centred on the scope of the application of Section 104E of the Resource Management Act 1991. In the Court of Appeal the unanimous decision found that for applications for discharges from proposed non-renewable energy sources, the consent authority must not take into consideration the effect these discharges would have upon climate change. Greenpeace appealed this decision.

Greenpeace argued that Section 104E allowed the consent authority to consider the effects of greenhouse gas discharges on climate change for applications of both non-renewable and renewable energy use. Genesis Energy argued that the consideration of the effects on climate change were limited to applications that propose the use of renewable energy.

Majority Judgment

The majority of the Supreme Court - four justices - concurred with the Court of Appeal that when a consent authority is considering an application for discharge for a non-renewable energy project, it must not have regard to the effects of such discharge on climate change. However, if the application is for a renewable energy project, the consent authority can have regard to the beneficial effects of reduced discharges through the use of renewable energy.

The court noted that the legislature had amended the act, through the Resource Management Amendment Act 2004, to require consent authorities to "plan for the effects of climate change", but not "to consider the effects on climate change of discharges into the air of greenhouse gases". The amendment operated to limit the power of local consent authorities to consider climate change. The court stated that the underlying policy of the amendment was to require the negative effects of climate change to be addressed on a national basis, through the imposition of a carbon tax (later replaced by the Emissions Trading Scheme). This policy was best promoted by construing Section 104E to allow the beneficial effects of the use of renewable energy in the context of applications based on the use and development of renewable energy.

Minority Judgment

Chief Justice Sian Elias dissented from the majority judgment, stating that application of Section 104E should not be limited only to renewable energy projects, but should apply to applications which propose the use of renewable or non-renewable energy. She noted that the majority's limited application of Section 104E is inconsistent with the purpose of the act itself under Section 7, and highlighted that under Section 7, all persons operating under the act should have "particular regard" to both the effects of climate change and the benefits derived from the use and development of renewable energy. Thus, in limiting Section 104E to apply only to renewable energy, the majority effectively "undermines the scope of the provision".

For further information on this topic please contact Paul Majurey or Allison Arthur-Young at Russell McVeagh by telephone (+64 9 367 8000) or by fax (+64 9 367 8163) or by email (paul.majurey@russellmcveagh.com or allison.arthur-young@russellmcveagh.com).