Coal mining companies can proceed on a much firmer basis
now that the Environment Court has declared that climate change
impacts from burning coal are outside the ambit of the Resource
Management Act (RMA) consenting process.
Buller Coal Limited (a subsidiary of Bathurst Resources) and
Solid Energy New Zealand Limited together sought the declaration as
both have resource consent applications in train for proposed coal
mines on the West Coast of the South Island.
Buller Coal was granted consent by the Buller District and West
Coast Regional Councils for the Escarpment Mine in August 2011 but
West Coast ENT and Forest & Bird have appealed that decision.
Solid Energy has an application before the councils now.
The case hinged around section 104E of the RMA. This was
inserted as part of the 2004 amendments to the Act by the National
Government and provides that, when considering an application to
discharge greenhouse gases, a consent authority "must not have
regard to the effects of such discharge on climate change" -
except to the degree that the use and development of renewable
energy would enable a reduction of greenhouse gases.
The Court dismissed arguments from West Coast ENT and Forest and
Bird that climate change effects should be considered, saying:
"I consider, as I did in Greenpeace New Zealand Inc v
Northland Regional Council, that the whole of the Amendment Act,
but particularly section 3, point strongly to a finding that
regulatory activity on the important topic of climate change is
taken firmly away from regional government and made the subject of
appropriate attention from time to time by central government by
way of activity at a national level".
Chapman Tripp comments
Chapman Tripp represented Buller Coal in these proceedings and
welcomes the Court's clear and consistent application of
the law in this area.
The decision will allow coal mining companies like Buller Coal
to proceed with their plans without the introduction into the
consenting process of irrelevant arguments and evidence about the
threat posed by climate change. If New Zealand is to develop its
mineral resource, investors need to have the confidence to
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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Industry bodies have taken an opportunity to highlight regulatory interference as a key barrier to exploration investment.
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