West Coast Ent Inc v Buller Coal Limited

The Supreme Court has recently released its decision West Coast ENT Inc v Buller Coal Limited [2013] NZSC 87, upholding the earlier findings of the Environment Court and the High Court that the effects of coal combustion on climate change are irrelevant to the resource consent process.

The decision signifies an end to the lengthy declaratory proceedings, and removes a significant obstacle to Buller Coal Limited in its pursuit to obtain the necessary resource consents to develop its coal mine on the Denniston Plateau.

Background
Buller Coal Limited and Solid Energy NZ Limited applied to the West Coast Regional Council and the Buller District Council for resource consents to permit coal mining.  Once mined, the coal would be exported to, and burnt in, various countries. 

West Coast ENT Inc and Forest & Bird opposed the applications on various grounds.  One particular argument they sought to advance was that climate change effects associated with the burning of the coal were material to the assessment of the resource consents. 

Buller Coal Limited and Solid Energy successfully applied to the Environment Court for declarations under Section 310 of the RMA that, when considering the consents, it was not permissible to have regard to the effects on climate change of the discharge of gases from the end use of the coal. 

These declarations were upheld by the High Court on an appeal brought by West Coast ENT and Forest & Bird.  Subsequently, West Coast ENT and Forest & Bird obtained leave to appeal to the Supreme Court.

Supreme Court Decision
At issue in the appeal was whether climate change effects associated with the burning of the coal were material to the assessment of the resource consent application to mine the coal.
The question for determination turned on the correct interpretation of section 104 of the RMA.  In particular, the words "actual or potential effects on the environment".

West Coast ENT's case rested on a literal interpretation to the relevant provisions of the RMA.  In particular, it argued that the regulation of activities must take into account their climate change effects and that this is so even where the activities do not themselves involve the direct discharge of gases.

However, the majority of the Court did not accept this argument (Elias CJ dissenting).
The majority held that when the words of the statute were interpreted in a purposive fashion in the context of the statute as a whole, a literal approach could not be sustained.  A purposive interpretation of the words contained in section 104(1)(a) precluded consent authorities from taking into account the effects on climate change resulting from the end use of the coal when considering applications for resource consents for the mining related activities. 

In reaching this conclusion, the majority was influenced by the purpose of the 2004 Amendment Act to the RMA, which removed the consideration of climate change effects in respect of consents or discharges to air of greenhouse gases.  The majority considered such purpose would be subverted if climate change considerations were relevant to the assessment of resource consents because the end use of the mineral obtained under the consents would result in a release of greenhouse gases.  The majority also noted that in this instance this limitation was consistent with the clear legislative policy that addressing effects of activities on climate change lay outside the functions of regional councils and territorial authorities.

Finally, the Court also reasoned that the effects of burning coal, in the context of the argument advanced by West Coast ENT, were too intangible.  It was recognised that Buller Coal Limited and Solid Energy NZ Limited seek to mine coal to meet international demand.  Therefore, irrespective of what occurs on the Denniston Plateau, the consumers will obtain the coal resource and consequently emit greenhouse gases.  In these circumstances, the majority noted that there were inherent difficulties in proving a demonstrable linkage between the burning of coal mined from the West Coast of New Zealand and any noticeable effect on global climate change.