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Environmental Land-Use Planning

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While the pursuit of a…. global agreement is admirable, it ignores [the reality] that national interest in competitive economic development will serve as an incentive for poor implementation of [greenhouse gas] reduction policies. [By contrast, Environmental Impact Assessment] helps to achieve international goals in the context of local participation and decision-making, as well as ensures that population growth and development do not erode or completely contradict ongoing and future strategies to address climate change.

Caleb Christopher1

I. Introduction

With the common law put to one side, the role that environmental planning statutes have in regulating greenhouse gas emissions has been obscured by the prominence given to emissions trading schemes. In New Zealand, discharges of greenhouse gas emissions are not to be considered under the RMA 1991. Nonetheless, indirect greenhouse gas emissions are ostensibly not prohibited from evaluation and territorial authorities could in theory employ land use planning to regulate greenhouse gas emissions. In the mining context, nonetheless, existing mining privileges mean that the RMA 1991 is precluded from considering land use at all even though an interpretation is viable which would allow such privileges to be read consistently with the RMA 1991. With current mining permits, two arguments aim to divorce environmental planning from sustainable management of the atmosphere. The first argument is that there will be that emissions trading schemes supplant environmental planning completely. The second argument is that the activities engaged in will have little effect on the global greenhouse gas concentration. This chapter submits that the cumulative effects of greenhouse gas reductions should not be disregarded and emissions trading schemes should be read consistently with environmental planning legislation. This can be seen especially in case law which recognises the benefits of greenhouse gas reductions in high density urban planning. It is argued, therefore, that environmental planning statutes form the appreciable base upon which emissions trading schemes are able to function.

II. Resource Management Act 1991

In terms of greenhouse gas emissions, the RMA 1991 would seem particularly suitable to regulate such emissions. Its purpose is sustainable management to sustain “the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations.”2Section 15(2) prohibits discharging any “contaminant into air… from (a) any place; or (b) any other source, whether moveable or not.”3Section 17 provides a broad unenforceable duty to “avoid, remedy, or mitigate any adverse effect on the environment.”4The definition of contaminant includes any substance or energy or heat which when discharged “changes or is likely to change the physical, chemical, or biological condition of the land or air onto or into which it is discharged.”5Environment is defined expansively which would include the atmosphere under “ecosystems and their constituent parts” as well as a “natural and physical” resource.6Likewise, the definition of effect includes “any positive or adverse effect”, “any temporary or permanent effect”, “any past, present, future effect”, “any cumulative effect which arises over time or in combination with other effects”, “any potential effect of high probability”, and “any potential effect of low probability which has a high potential impact.”7 Hence, greenhouse gas emissions would seem to be prima facie caught by the RMA 1991 unless otherwise authorised.   Prior to 2004, the RMA 1991 was to regulate greenhouse gas emissions. For instance, the Huntly gas/coal fired power station resource consent involves periodic reviews of the “best practicable option” for reducing emissions.8The council recorded that the government would be better to promulgate a consistent national policy.9Similarly, the Stratford gas fired power station was conditioned to “take such steps as are necessary and effective to avoid, or remedy or mitigate the effects of the additional amount of carbon dioxide being discharged as a result of” the project.10Additionally, the Southdown combined cycle power station had a best practicable option condition attached to its resource consent.11   Twice in 2002, this ad hoc approach to greenhouse gas mitigation came to a head. In Environmental Defence Society v Auckland Regional Council, the Environment Court found that the “greenhouse effect and the possibility of climate change [were] a matter of serious concern.”12 Nevertheless, no conditions on the resource consent were imposed as the RMA 1991 would risk “inconsistent treatment” through “implementing and managing requirements for different regions.”13It accepted that “cumulative anthropogenic emissions of carbon dioxide on a global basis contribute to climate change.”14Although unquantifiable, “the prognosis is sufficiently serious… to find that the proposed emissions from [the project] will result, in a cumulative way, in an adverse effect of some consequence.”15Nonetheless, the court had “considerable disquiet about the efficacy, appropriateness and reasonableness of a condition [requiring mitigation].”16This was “engendered by [the need to treat] greenhouse gas emission[s] as an international issue” as well as ensuring that at a “national level… consistency of approach… guarantee[d] an efficiency compatible with achieving best social, environmental and economic outcome.”17 Comparable comments in Environmental Defence Society v Taranaki Regional Council reiterated that greenhouse gas emissions remained applicable as a cumulative effect under the RMA 1991.18The court “manifest[ed] a need for caution to ensure a consistency of approach at the very least nationally.”19To “disregard such a portent [would] be foolhardy.”20The court cautiously refused to add a carbon offsetting condition to the resource consent because to do so would involve a “quintessential policy” decision.21

It was difficult “to identify any definable effects attributable to the carbon dioxide discharge from the application site, locally[,] regionally or globally” as the emissions “emitted annually by the development is about 1 millionth of the total annual global emissions.”22Nevertheless, the court was sympathetic to the contention that “every small contribution makes a difference.”23].))It would have surely accepted the subsequent statement by Judge Thompson in Todd Energy v Taranaki Regional Council that “[t]here is an obvious danger in blindly adopting the view that… a little more won’t make much difference”24This is because the “accumulation of individually insignificant increments can [potentially] become significant.”25

                  The Resource Management (Energy and Climate Change) Amendment Act 2004 guided a national approach. This introduced a definition of climate change 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 periods.”26Additionally, this Act defines renewable energy as “energy produced from solar, wind, hydro, geothermal, biomass, tidal, wave and ocean current sources.”27 It set out to give greater weight to the value of energy efficiency regardless of source, to consider the effects of climate change such as an increase in sea level rise, to remove climate change as a factor to be taken into account for industrial discharges of greenhouse gases, as well to look to the benefits to be derived from the use and development of renewable energy.28”.)) These were inserted in ss 7(ba), (i) and (j) of the RMA 1991 respectively. Thus, there was to be national direction as to “legally relevant guidance to take climate change effects in the benefits of renewable energy into consideration.”29

Sections 70A, 70B, 104E, and 104F of the RMA 1991 were introduced to clarify how regional councils were to manage greenhouse gas emissions. Section 70A prescribes that a regional council when making a rule to control an air discharge of greenhouse gases “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.”30

Section 70B provides that if a national environmental standard is made to control the effects of such discharges on climate change that a regional council can make appropriate rules. Section 104E states that when considering a discharge of greenhouse gases, a consent authority must not consider the discharge except in relation to the benefits accrued for renewable energy. Section 104F provides the process by which a national environmental standard on greenhouse gases is to be considered in an application.

These sections have subsequently come under extensive purposive and textual analysis.31On appeal from the Environment Court in Greenpeace New Zealand v Northland Regional Council,32Greenpeace in the High Courtargued that s104E:33

applies to all resource consent applications that would otherwise [constitute a discharge] regardless of whether such applications are made in respect of renewable or non-renewable energy projects [as] there [was] no basis in the exception to s 104E justifying it to applications for renewable energy projects.

Section 7(j) which requires the consideration of the benefits of renewable energy “remained in full force and decision-makers must consider all benefits of renewable energy” including a comparison with non-renewable energy.34InGenesis Power v Greenpeace New Zealand, the Court of Appeal found that greenhouse gases “should be subject to national, and not regional, regulation and control.”35As such, Greenpeace’s approach involved a “duplication of effort between national and regional government which the legislature has sought to eliminate.”36The consequence of the alternative interpretation would “allow the exception to swallow the prohibition.”37Moreover, no “demonstrative linkage [existed] between [greenhouse gas] emissions associated with any particular project and climate change generally.”38

The majority in the Supreme Court accepted the Court of Appeal’s approach. Wilson J accepted that the “language of the sections [demonstrates] a clear implicit premise that the exception is confined” to renewable energy projects.39His Honour argued that “the prohibition and the exception must be given practical effect [to only apply to renewable energy projects because otherwise] a proposal which came within the prohibition would in all probability also come within the exception.”40Hence, “the exception within [s104E] applies only to applications involving the use and development of renewable energy.”41In the minority, Elias CJ argued that such reading was “not consistent with the wider statutory context.”42Her Honour saw that in “the absence of national environmental standards… the consent authority must consider applications relating to the discharge of greenhouse gases.”43Placing emphasis on s 7(j), the disadvantages of non-renewable energy needed to be considered as “the reverse side of the same coin.”44

Although the outcome of the majority is persuasive, the reasoning is too broad. Wilson J stated that “any application being considered must necessarily involve a renewable source; if it does not, there is no possibility of reducing the discharge of greenhouse gases either absolutely or relatively.”45

Such reasoning is problematic. Section 104E requires that there be an application for a discharge permit. With many renewable resources such as a wind farm, applications to develop renewable energy do not directly discharge greenhouse gases. Therefore, non-greenhouse gas emitting renewable energy projects should be solely considered in terms of s 7(j). The statement made by Wilson J also ignores ss 7(b) and (ba) as to efficiency of resources. The conversion from a highly inefficient coal plant to a more modern efficient gas plant is an exemplar. Greenhouse gas emissions of non-renewable resources can be reduced absolutely (carbon sequestration) or relatively (change in technology for greater efficiency). With this reasoning, s 104E must apply to the narrow band of geothermal or biomass plants which discharge greenhouse gases but are renewable in nature rather than deriving from a non-renewable resource.

III Indirect Greenhouse Gas Emissions and Mining

The 2004 Amendment Act leaves the question open as to the extent to which territorial authorities control greenhouse gas emissions through land use changes. Thus, local authorities are required to “plan for the effects of climate change” but “not to consider the effects on climate change of discharges into air of greenhouse gases.”46 Rive has found a legal gap where “the potential effects on climate change of land use proposals (not involving applications relating to the discharge of [greenhouse gas] emissions to air)” could be considered.47Taken to its logical conclusion, the obvious intersection of land use and greenhouse gas emissions is the prospecting, exploration and mining of fossil fuels. Litigating greenhouse gases at the coal mine, petroleum or gas field has seen light discussion in New Zealand48despite extended discussion in the Australia,49 Canada,50and the United States.51

The source of all fossil fuel greenhouse emissions would seem the ultimate place for an extended discussion of an assessment of environment effects of greenhouse gas emissions.

 

Mining in New Zealand is governed by the Crown Minerals Act 1991 (CMA 1991) and existing privileges. The CMA 1991 is to “provide a neutral regime which neither promotes nor discourages mining relative to other activities.”52The Act’s purpose is to “restate and reform the law relating to the management of Crown-owned minerals.”53When legal ownership of a mineral is vested in the Crown,54the CMA 1991 regulates the prospecting, exploration, or mining of such minerals. The Act creates a system where a Crown Minister has the function of preparing minerals programmes which provide for a management framework and system of allocation.55 These provide for “(a) [t]he efficient allocation of rights in respect of Crown owned minerals; and (b) [t]he obtaining by the Crown of a fair financial return from its minerals.”56The three types of mineral permits are for prospecting, exploration and mining. The mining permit allows the holder to “take, win, or extract, by whatever means a mineral existing in its natural state in land, or a chemical substance from that mineral, for the purpose of obtaining the mineral or chemical substance.”57

While access to land is discussed at length in the Act, there is also protected land included in schedule 4 of the CMA 1991.

A          Existing Mining Privileges

Within the CMA 1991, there is a major exemption for existing privileges. Section 9 of the CMA 1991 provides that “[c]ompliance with this Act does not remove the need to comply with all other applicable Acts, regulations, bylaws, and rules of law.”58This section has been read down because s 107 of the CMA 1991 means that “every existing privilege shall continue to have effect after the date of commencement of this Act” so that “the holder of the privilege continue[s] to have the same statutory rights as the holder would have had if this Act and the [RMA 1991] had not been enacted” and “the holder of the privilege continue[s] to have the same statutory obligations as the holder would have had if this Act had not been enacted.”59This means that “where any consent in respect of any such existing privilege which, but for this section, would be required and would need to be sought under the [RMA 1991], then the [RMA 1991] shall apply.”60The Parliamentary Commissioner for the Environment (PCE) has called the associated environmental conditions of these existing mining licences as “weak, outdated, contradictory, unenforceable, or absent altogether.”61 As at October 2009, there were 111 licences granted under the old legislation – 58 under the Coal Mines Act 1979 – the last of which is to expire in 2062 for an opencast lignite pit at New Vale in Southland.62

This dual system of regulation means the applicability of the RMA 1991 is thwarted. Fortunately, the Privy Council has found that the term of an existing mining licence was not a condition of the licence for the purposes of a variation under s103D(3) of the Mining Act 1971 so that a change in the term of an existing mining licence requires a new mining permit altogether under the CMA 1991 with RMA 1991 controls.63Despite this, a corpus of law has developed where some enforcement provisions of the RMA 1991 remain inapplicable because the CMA 1991 has been interpreted so that the holder of an existing privilege does not require RMA 1991 land use consent. This principle has been held to apply in the Environment Court in Opoutere Ratepayers v Heritage Mining (the effect of s 107 of the CMA 1991 declared),64Otago Heritage Protection Group v Macraes Mining (an unsuccessful attempt to obtain an enforcement order to prevent mining of old mine workings of heritage value),65 Terry v West Coast Regional Council (a regional council unable to obtain an enforcement order relating to gold mining)66as well as accepted by the High Court in Powelliphanta Ausgustus v Solid Energy (s 17 of the RMA 1991 did not apply to the protection of snails under an existing licence).67 This premise is based on Stewart v Grey County Council, which was decided in 1978.68Stewart v Grey County Council held that the rights of a gold-dredging company were not affected by the Town and Country Planning Act 1953.The gold-dredging company wished to mine Mr Stewart’s land. An Order in Council declared the land to be open for mining as if it were Crown land and the gold-dredging company obtained a mining licence. The mining privilege granted gave the company “the exclusive right to occupy the appellant’s freehold land for a ten years for the purposes of mining gold and silver” under the Mining Act 1971.69Richardson J held:70

[I]t would be surprising if the Minister, having determined… that it was in the national interest for land to be declared open for mining as if it were Crown land… the Town Planning legislation could then be invoked to negate that decision… [T]he Mining Act 1971 was intended to be an exclusive code in respect of the use of land for mining purposes under mining licences granted under that Act.

Thus, the Mining Act 1971 provided “a clear and detailed statutory code determining and controlling… the use and development of land for mining purposes.”71 It “pre-empted the field [of land use].”72Richardson J declined to accept the submission of the applicability of Australian case law because there was an “express statutory provision making Crown land subject to the [Australian] planning legislation.”73On the facts,it was found to “be inconsistent with the scheme of the [1971] Act to allow territorial authorities, in instituting and implementing land use controls, to derogate from the rights and obligations in that respect provided for in the [1971] Act.”74An amendment to the 1971 Act in 1981 codified the decision in Stewart v Grey County Council.75

There are several reasons for criticising this expanded use of Stewart v Grey County Council. The facts in Stewart involved access to private land rather than use of Crown land.Stewartalso reads down s 9 of the CMA 1991 which provides that other Acts are not affected by the CMA 1991. In addition, an interpretation of s 107 of the CMA 1991 which states that the RMA 1991 as well as the CMA 1991 do not apply to existing statutory rights but that only the CMA 1991 does not impose statutory obligations should be given effect. This would mean that the RMA 1991 still applies to statutory obligations. Section 107(3) of the CMA 1991 is a mere acknowledgement that any consent required under previous legislation is still required to get consent under the RMA 1991.Moreover, Stewart itself was based on “material differences between the [New South Wales] legislation… and the New Zealand legislation.”76 The CMA 1991 could not have intended that existing privileges would hold a free rein over those who were subject to RMA 1991 controls. Existing privileges were to be integrated with RMA 1991 controls. The CMA 1991 itself creates a code which needs realisation. Lastly, s 108 of the CMA 1991 refers to s 31 of the RMA 1991 which allows territorial authorities to establish, implement, and review the “methods to achieve integrated management of the effects of the use, development, or protection of land.”77

If the existing privileges enabled by the CMA 1991 were not to apply to land use it would be superfluous to include such a provision in s 108.Despite these observations, the Courts adhere toStewart. In Powelliphanta Augustus v Solid Energy numerous declarations and enforcement orders were sought under s 17 of the RMA 1991 against Solid Energy to prevent the mining of the Mt Augustus ridgeline(part of the Stockton open cast coal mine) pursuant to a coal mining licence under the Coal Mines Act 1979 in order to protect the endangered Powelliphanta Augustus snail.78 Section 17 provides a broad unenforceable duty where “[e]very person has a duty to avoid, remedy, or mitigate any adverse effect on the environment… whether or not the activity is in accordance with” the RMA 1991’s subsidiary regulations. Panckhurst J reasoned that existing mining privileges were not subject to RMA 1991 land use requirements.79 His Honour held that “s 17 casts a duty within the context of the RMA. Where an activity is not regulated and controlled under the RMA, s 17 has no part to play.”80Such reasoning is inconsistent with Zdrahal v Wellington City Council where an abatement notice was issued because of swastikas painted on the outside wall of a house.81

If s 17 is construed narrowly to only those activities strictly involving RMA 1991 regulation, such a land use would not strictly breach the RMA 1991. Section 17 is to be a broad duty and to narrow it renders s 17 redundant. Hence, the awkward position is left that Solid Energy is entitled to use s 17 of the RMA 1991 to halt a mass protest on adjacent land to the Stockton mine but Save Happy Valley Coalition is unable to use s 17 because the mining licence granted exists under the Coal Mines Act 1979.

Little mention in these decisions concerns s 10 of the RMA 1991 that protects certain existing uses in land even though seemingly directly applicable. The reason that an imprudent interpretation of s 107 of the CMA 1991 is facilitated is because s 10 means that if an activity has been discontinued for more than 12 months then any existing privilege is abandoned. With existing privileges existing up until the next 50 years, it is conceivable that a 12 month period break from land use activities could have occurred jeopardising the existing mining privilege. For the PCE, the existing mining privilege regulatory regime “is complex, obscure and out of date.”82 Such licences have lengthy terms and “public opinion on what is environmentally acceptable has changed significantly.”83 There is a fear that “not updating environmental conditions in a mining licence may expose the Crown the risk of the site being abandoned in a poor state.”84 Any“ensuing clean-up [will be] done at taxpayer and ratepayer expense.”85 For instance, the Tui mine abandonment in Waikato will cost over $18 million to fix.86

B          Modern Mining Permits

In direct contrast with existing mining privileges, the CMA 1991 and the RMA 1991 work collaboratively to regulate modern mining permits. In Gebbie v Banks Peninsula District Council, Mr Gebbie sought to reopen a quarry for stonemasonry purposes and argued that the right to mine minerals is a common law right not abrogated by the RMA 1991.87 Panckhurst J reasoned that excluding minerals from s 5 RMA 1991 was recognition that “minerals being a finite resource cannot be sustained for future generations.”88 For Panckhurst J, “the very process of mining minerals must be carried out in a sustainable way, that is the disturbance of soil, the creation of dust and noise, the use of water [etcetera].”89 Conceptually, therefore, although the rate of mineral extraction is uncontrolled, there is still to be sustainable management of the atmosphere. Elsewhere it has been argued that the question involves “the side effects which the combustion of those minerals cause on a global and regional basis, therefore the exclusion of minerals in [s 5(2)(b) of the RMA 1991] has no bearing on the issues.”90Panckhurst J declined to apply Stewart v Grey County Council because as the “minerals were privately owned and a privilege was not required, then normal land use planning considerations [remain] relevant.”91 Section 9 of the CMA 1991 was read prospectively so that “the modern position is that those who hold permits to mine Crown-owned minerals are bound by the [RMA 1991] and must, for example, obtain consents for the use of land and water in order to exercise their right to mine.”92

C         Overseas Authority

In Australia, there is a requirement to consider greenhouse gas emissions from the coal mine. For the Hazelwood coal mine and the Newlands coal mine, such a criterion proved so controversial that the Crown intervened to enable the operation of the coal mines in question.93 In Gray v Minster for Planning, the applicant argued that there had been an inadequate greenhouse gas assessment of the Anvil Hill coal mine.94 The Director-General, so it was argued, failed to account for the greenhouse gases arising from the inevitable burning of the coal by third parties. The proposal’s environmental assessment had only factored in greenhouse gases under the mine’s direct control. Applying ecological sustainable development, Pain J held that the Director-General needed to consider that “climate change/global warming is a global environmental issue to which the coal won from the project will contribute.”95 This required an analysis of the intergenerational and precautionary principles.96 This decision can be contrasted with Dowsett J in Wildlife Preservation Society of Queensland Proserpine v Minister for the Environment and Heritage, who was:97

far from satisfied that the burning of coal at some unidentified place in the world, the production of greenhouse gases from such combustion, its contribution towards global warming and the impact of global warming upon [coral reefs] can be so described [as a significant impact]… The applicant’s case is really based upon the assertion that greenhouse gas emission is bad, and that the Australian government should do whatever it can to stop it including, one assumes, banning new coal mines in Australia.

In Canada, Pembina Institute v Canada (Attorney-General) involved a judicial review application of a joint review panel that assessed the environmental impacts of the Kearl oil sands project under the Canadian Environmental Assessment Act 1992.98 Oil sands comprise some 140,000 square kilometres in north-eastern Alberta and produce over 1 million barrels of oil every day.99 In addition, the tailing ponds which contain residual sand, bitumen, and related contaminants threaten groundwater, biodiversity, soil and surface water such as rivers. The joint review panel concluded that the particular Kearl oil sands project was not likely to cause significant adverse environmental effects. Tremblay-Lamer J held that the panel had erred through an insufficient explanation as to how the projected greenhouse gas emissions were insignificant. There needed to be “cogent articulation of the rationale basis for conclusions reached.”100  The panel had short circuited the decision making process. It “erred in law by failing to provide reasoned basis for its conclusion.”101 The panel went on to reaffirm its decision. However, as Chalifour observes “it remains difficult to see how… the release of 3.7 million tonnes of greenhouse gases per year [were rendered] insignificant.”102

D         Analysis

There is an argument that the 2004 amendment only regulated direct discharges of greenhouse gases and therefore did not displace the consideration of indirect discharges. In this light, s 7(i) of the RMA 1991 which requires particular regard to be had to “the effects of climate change” is potentially ambiguous.103 Is there to be sustainable management of “the effects of climate change” or are “the effects of climate change” to be sustainably managed? The former concerns mitigation and adaptation whereas the latter focuses solely on adaptation to the exclusion of mitigation.  As Manning and Reisinger suggest the “effects of climate change can and need to be managed by a dual strategy: by adapting to [inevitable] impacts [and] reducing emissions” to avoid severe impacts.104 Rive postulates that the legislature has seen mitigation (effects on climate change)105 and the (effects of climate change)106 as opposing objectives. This appears to have been the intention of the 2004 amendment107 as interpreted by the Ministry of the Environment.108 It is not the approach always taken by the judiciary.109 In Genesis Power v Franklin District Council, double counting occurs when the court recognised “the importance of the use and development of renewable energy and the need to address climate change, both of which are key elements in the proposed wind farm.”110 This can be contrasted with Wilson J in Genesis Power v Greenpeacewhofound the 2004 amendments “require[d] the negative effects of greenhouse gases causing climate change to be addressed not on a local but on a national basis.”111

Even if a broad interpretation of sustainable management of the effects of climate change is adopted, the question still remains as to whether indirect greenhouse gas emissions

are to be factored in by mineral extractors. For land use a territorial authority is left like regional councils before the 2004 amendments with a lack of national guidance. This would beget an ad hoc approach to greenhouse gas mitigation. Nevertheless, while the CMA 1991 allows for the rate of mineral extraction to be controlled, there needs to be sustainable management of the atmosphere in land use planning. Itcan be argued, consequently, that any mining land use resource consent should offset its greenhouse gas emissions from its activities where a third party combusts the mineral. Carbon offsets in the form of carbon sequestration could be a required planting of trees. Such a resource consent condition may be rendered unenforceable because of the requirement for monitoring. A better resource consent condition would just require payment of money to reduce the greenhouse gas emissions in other areas of the economy to be paid to the Ministry for the Environment for distribution. Abest practicable option condition is another alternative.

Despite these comments, the better view is that indirect greenhouse emissions are excluded altogether when considering the environmental effects of land use in the extraction of minerals. The primary reason for exclusion is the Climate Change Response Act 2002 (CCRA 2002). The purpose, as described in the first chapter, is to encourage “global efforts to reduce greenhouse gas emissions by… reducing New Zealand’s net emissions below business-as-usual levels.”112 Section 204 of the CCRA 2002 specifies that those who carry out mining for coal or natural gas under a permit are deemed to carry out the activity of releasing greenhouse gas emissions before third parties who buy that product release greenhouse gases on its combustion. Section 63 of the CCRA 2002 states that “a participant is liable to surrender [one] unit for each whole tonne of emissions from each activity” regulated by the Act which creates greenhouse gas emissions.113

From the CCRA 2002, it is obvious that there would be a double counting of greenhouse gas emissions if a mine were to take account of its emissions under the RMA 1991 as well as under the CCRA 2002. While overseas authority has taken indirect greenhouse gas emissions into account from mineral extraction, the CCRA 2002 would seem to provide a bar to such actions in New Zealand.

IV Indirect Greenhouse Gas Emissions and Other Land Uses

There still, of course, remains doubt as to the extent to which territorial authorities can readily evaluate the mitigation of greenhouse gases in other land use controls.114  A simple land use example is low suburban development with high urban residential density means less distance to travel in vehicles and greater availability of public transport which reduces greenhouse gas emissions. As Trisolini and Zasloff describe “[t]aken cumulatively, local governments’ land use decisions – their determinations of which categories of activities go where – have a substantial impact on greenhouse gas production.”115 For Irvine, high residential density “avoids long, counterproductive commutes and prevents the congestion of the mass exodus from the city centre to the suburbs [at night].”116 The Regional Policy Statement in Minister for the Environment v Auckland Regional Council rings true:117

Auckland’s low-density urban form has led to inefficient travel patterns and use of energy. People have to travel further to get to the services they require and to get to and from work… [I]t has led to greater reliance on private vehicles and less effective use of public transport. More travel means greater use of non-renewable fuel, more emissions to the environment from vehicles, a greater contribution of greenhouse gases to the atmosphere, and a greater impact on the quality of air and water in the Region.

It is submitted that “local and regional policy [should continue] to play a central role in efforts to forestall and adapt to climate change [as] neglecting it would represent a failure [of integrated policy].”118 There should, in theory, be no policy reason why only adaptation and not mitigation ought to have “a distinct local focus.”119 A purely nationalistic top-down approach has limits120 and ignores the beneficial flexibility inherent in a bottom-up approach. The preferable approach is that:121

[e]xplicitly empowering or directing local government to take some responsibility for the management of greenhouse gases provides opportunities for [climate change] to be addressed through all levels of society.

A          Urban Planning

In Canterbury Regional Council v Waimakiriri District Council, greenhouse gas emissions in transport planning were discussed.122 In this case, rural land was rezoned for the 1800 household Pegasus Bay development. The plan change was challenged because there was a need to encourage “transport patterns which would increase the efficiency of fuel use; the reduction of motor vehicle emissions; and the coming into being of alternative modes of transport.”123 The court held that “[t]he question of… global emissions is not a matter for a Regional Council to address because it has no direct regional effect.”124 Regional policy statements were for regional resource management issues and national policy statements were for national matters. The court noted that “the overall potential reduction due to localised urban strategies is very small” comparative to methane emissions from agriculture.125 Therefore, “the alleged increases in all vehicle emissions are not of such significance regionally as to warrant interference with otherwise acceptable land activities on land suitable for that purpose.”126

A different result was reached in AMI Ltd v Christchurch City Council. In that case, AMI Ltd wished to relocate its main Christchurch office to Clearwater Resort north of Christchurch.127 AMI sought a plan change to make the residential area partially commercial. The city plan promoted “patterns of land use that promote and reinforce a close proximity and good accessibility between living, business and other employment areas.”128 This involved “reduced air emissions from transport through a strategy of consolidating urban form” allowing for the “retain[ing of] a viable public transport” system and to lessen “dependence on motor vehicle use.”129 Although “Council[s] ha[ve] limited powers to control [greenhouse gas emissions] it can [influence] land use and growth policies” for a sustainable transport system.130 AMI Ltd argued that the transport objectives could be overcome through “a workplace transport management plan” which would adhere to “ISO 14064-1 Greenhouse Gas Part 4 and the Greenhouse Gas Protocol from the World Resources Institute.”131 Nonetheless, the court determined that “the likely increase in the use of the private motorcar for AMI employees travelling to work” would fail to achieve the plans objectives.132 This was because “94 [per cent] of all trips to the new location for AMI offices would be made by private car.”133 The court found it difficult to assess the work transport management plan and doubted whether “an effective [work transport management plan] could be achieved.”134

B          Overseas Authority

Indirect greenhouse gas land use decisions have also seen extensive litigation overseas. Litigation has surrounded oil pipelines;135 natural gas pipelines;136 transmission lines for electricity derived from fossil-fuels;137 railway lines for coal transport;138 deforestation;139 expansion of airports;140 approval of an expansive WalMart;141 transportation to cargo facilities;142  and expansion of motor highways.143 Clearly, land use decisions which contribute indirectly to greenhouse gas emissions are becoming well recognised.  London Borough of Hillingdon v Secretary of State for Transport is a good example of the “increasing importance of climate change as a factor directing planning policies.”144 A third runway at London’s Heathrow airport had been under discussion since 2003. In 2009, the Secretary of State was satisfied that the documents indicated that greenhouse gas emissions “in 2050 w[ere] not [to] exceed 2005 levels”145 ” and that total air traffic movements “in the UK should not increase by more than 55 [per cent] between 2005 and 2050.”146  Hence, environmental and local groups argued that the Secretary of State had failed in the “major decisions on increases in airport capacity [to take account of] the wider context of aviation’s climate impacts.”147 The court concluded that “common sense demanded that a policy established in 2003” before important developments in climate change policy in “the Climate Change Act 2008, should be subject to review in the light of those developments.”148  There was nothing in law entitling the Secretary of State to “limit the scope of the permissible debate” over the third runway at Heathrow airport.149 A slightly different scenario existed Barbone and Ross (on behalf of Stop Stansted Expansion) v Secretary of State for Transport where claimants wished to quash the grant of planning permission to increase the number of annual air traffic movements of Stansted airport.150 The claimants argued that “the impact of aircraft emissions…. would be highly damaging” and “to manage the impact of aviation through concerted international action under an emissions trading scheme [is] unrealistic and uncertain.”151 The argument followed that “the Secretaries of State had to choose between the competing policies of (i) expanding air traffic and (ii) addressing climate change.”152 The court reasoned that “the reduction in greenhouse gas emissions across the economy does not mean that every sector is expected to follow the same path” and “the best way of ensuring that aviation contributes towards the goal of climate stabilisation will be through a well-designed emissions trading regime, operating on an international basis.”153 The Court agreed that the conclusion was one “entitled to [be] reach[ed] on the evidence” as such matters involved policy.154 Sir Thayne Forbes was “satisfied that… the Secretaries of State did take properly into consideration the environmental information relating to the estimated emissions from the [airport] proposal.”155

C         Analysis

These decisions provide the background to a multifaceted policy debate at the heart of mitigating greenhouse gas emissions. It is easy to declare that “no climate change effect directly linked to the proposed additional use of the [land use] could be demonstrated.”156  These decisions reveal that while greenhouse gases must be taken into account, any change to land use is unlikely to be enough to have an effect on the global atmosphere. Accordingly greenhouse gas emissions may as well be discarded. Yet, greenhouse gases are the result of a cumulative effect. The courts have focused on the forest to the exclusion of the trees. The wide definition of effect which includes cumulative effects is precisely the sort of effect that the RMA 1991 regulates. To repeat, the broad reasoning of Wilson J in Genesis  Energy v Greenpeace, the purpose of the 2004 amendment “require[d] the negative effects of greenhouse gases causing climate change to be addressed not on a local but on a national basis.”157 This prises control of reducing greenhouse gas emissions from regional and territorial government and thereby robs them of creativity.158 The Supreme Court can not have intended to take the power away from regional and territorial authorities to consider “sustainable transport” as mandated in the Land Transport Management Act 2003.159 

These decisions illustrate that it is easy to put faith in an omnipresent emissions trading scheme of the future. Such reasoning emphasises that the CCRA 2002 displaces specific regulation. It ignores, however, that transport emissions are enabled through land use planning as New Zealand is criss-crossed with roads. The argument follows that there will be double counting if the CCRA 2002 and the RMA 1991 are both used to regulate greenhouse gas emissions. But the CCRA 2002 and RMA 1991 can be complementary.160 If land use changes and greenhouse gas emissions conflict the CCRA 2002 should prevail. The argument that “there is likely to be little that the RMA tools and processes can add… to improve market functions within a least cost framework” should be rejected.161

The CCRA 2002 is not an environmental planning statute and without the RMA 1991 greenhouse gases fall into a legal abyss. It followsthat greenhouse gas emissions should be factored in to urban density land use but not for mining land use through the territorial authority, as a practical reconciliation of the RMA 1991 of the CCRA 2002. Indirect greenhouse gases should not be stuck in a dichotomy of either being considered or not. It is better for a territorial authority to evaluate critically whether a change in land use is to be regulated by the RMA 1991 or the CCRA 2002 or both.

 

V New Zealand Bill of Rights Act 1990

A final issue is that links have been made between human rights law and climate change.162  As climate change will involve health risks of foreign diseases as well as the risks of extreme weather events causing property damage and death, it is arguable that s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA 1990) which protects the right not to be deprived of life is invoked.163 Jurisprudence in developing countries has recognised the right to a healthy environment through this portal.164 Thus, the “[r]ight to live is a fundamental right… and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.”165 In New Zealand, Williams J in Lawson v Housing New Zealand has doubted a right to life extends to social and economic factors.166 The major hurdle is that any risk to life needs to be imminent with the applicant being personally affected. In the climate change scenario as seen in chapter one, causation is difficult to establish and s 9 of the NZBORA 1990 is aimed at fatality because there is no right to a certain quality of life but of life itself. If successfully invoked, the court would then consider an interpretation of provisions in legislation “consistent with the rights and freedoms contained [there]in.”167

VI Conclusion

Contrary to claims that the CCRA 2002 is New Zealand’s sole response to mitigating climate change, different forms of regulation will be required to mitigate greenhouse gas emissions and “[t]here will be repeated questions, including many legal questions, about the  relationship between the market and regulation.”168 While discharges of greenhouse gas emissions are not considered in New Zealand under the RMA 1991, there is potential scope for indirect greenhouse gas emissions to be assessed. For mining, existing mining privileges are regulated by a variety of outdated statutory mechanisms and therefore such privileges are not read consistently with the RMA 1991 as currently interpreted. When current RMA 1991 compliant mining permits are scrutinised, there will be arguments that the activities engaged in are too small to have any influence on climate change and that the CCRA 2002’s market ousts the RMA 1991. This chapter submitted that the global nature of greenhouse gases should not be a disincentive to the cumulative effects of greenhouse gas reductions. The CCRA 2002 should not displace the RMA 1991 as such an interpretation forsakes the foundation of the RMA 1991. Other land uses which involve indirect greenhouse gas emissions such as high density housing should be and are considered under the RMA 1991. Land use which reinforces the atmosphere’s sustainable management ought to be encouraged.

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  2. RMA 1991, s 5. []
  3. RMA 1991, s 15(2). []
  4. RMA 1991, s 17. []
  5. RMA 1991, s 2, definition of “contaminant”. []
  6. RMA 1991, s 2, definition of “environment”. []
  7. RMA 1991, s 3. []
  8. [1] Robin Brasell “New Zealand’s Net Carbon Dioxide Emission Stabilisation Target” (1996) 3(3) Agenda 329 at 334-335 []
  9. At 335. []
  10. Environmental Defence Society v Auckland Regional Council [2002] NZRMA 492 (EnvC) at [19]. []
  11. Brasell, above n 8, at 336. []
  12. Environmental Defence Society v Auckland Regional Council [2002] NZRMA 492 (EnvC) at [65]. []
  13. [1] Environmental Defence Society v Auckland Regional Council [2002] NZRMA 492 (EnvC) at [65]. []
  14. [1] At [18]. []
  15. At [88]. []
  16. At [88]. []
  17. At [88]. []
  18. At [88]. []
  19. Environmental Defence Society v Taranaki Regional Council EnvC  New Plymouth A 184/2002, 6 September 2002 at [24]. []
  20. At [11]. []
  21. At [11]. []
  22. At [44]. []
  23. At [19]. []
  24. At [22]. []
  25. Todd Energy Ltd v Taranaki Regional Council EnvC Wellington W 101/05 7 December 2005 at [47]. []
  26. At [47]. []
  27. RMA 1991, s 2, definition of “climate change”. []
  28. RMA 1991, s 2, definition of “renewable energy”. []
  29. Vernon Rive “New Zealand Climate Change Regulation” in Alastair Cameron (ed) Climate Change Law and Policy in New Zealand (Lexis Nexis, Wellington, 2011) 165 at 181. []
  30. RMA 1991, s 70A. []
  31. Judge Bollard “Climate Change Issues from the Perspective of the Environment Court” (2008) 7(11) BRMB 127; Judge Newhook “Climate Change and the RMA” (paper presented to the Annual Resource Management Law Association of New Zealand Conference, 26 September 2008); Matt Spiro “Greenpeace New Zealand Incorporated v Genesis Power Ltd” (2009) 8(1) BRMB 11; Ed Steane “Genesis Power Ltd v Greenpeace New Zealand Inc” (2008) 7(9) BRMB 104; Ceri Warnock “Greenhouse Gases and Climate Change – Relevance to Discharge Permit Application” (2006) 6(16) BRMB 191; Edward Willis “The Interpretation of Environmental Legislation in New Zealand” (2010) 14 NZJEL 135. []
  32. Greenpeace New Zealand Incorporated v Northland Regional Council EnvC Auckland A 94/2006, 11 July 2006. []
  33. Greenpeace New Zealand Incorporated v Northland Regional Council [2007] NZRMA 87 (HC) at [3]. []
  34. At [17]. []
  35. Genesis Power Ltd v Greenpeace New Zealand Incorporated [2008] NZRMA 125 (CA) at [12]. []
  36. At [40]. []
  37. At [44]. []
  38. At [17]. []
  39. Genesis Power Ltd v Greenpeace New Zealand Incorporated [2009] 1 NZLR 730 (SC) at [52]. []
  40. At [53]. []
  41. At [65]. []
  42. At [11]. []
  43. At [24]. []
  44. At [11]. []
  45. At [53]. []
  46. Resource Management (Energy and Climate Change) Amendment Act 2004, s 3. []
  47. Rive, above n 28, at 184. []
  48. Ed Steane and Teresa Weeks “Climate Change and the RMA: Implications of Greenpeace New Zealand Inc v Genesis Power Ltd” (2009) April RMJ 1; Elisabeth Welson and Michelle van Kampen “Greenhouse Gas Discharges – A Matter of National Interest” (2009) 28 ARELJ 121. []
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  50. Pembina Institute for Appropriate Development v Canada (Attorney-General) (2008) FC 302; Nathalie Chalifour “A (Pre)Cautionary Tale about the Kearl Oil Sands Decision: The Significance of Pembina Institute for Appropriate Development et al v Canada (Attorney-General) for the Future of Environment Assessment” (2009) 5(2) McGill Int’l J Sust Dev L & Pol’y 251; Toby Kruger “Canadian Environmental Assessment Act and Global Climate Change: Rethinking Significance” (2009) 47 Alta L Rev 161. []
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  53. CMA 1991, long title. []
  54. CMA 1991, s 10. []
  55. Ministry of Economic Development “Minerals Programme for Petroleum” (1 January 2005) New Zealand Petroleum and Minerals <www.nzpam.govt.nz>; Ministry of Economic Development “Minerals Programme for Petroleum (2005) Amendment (Priority in Time) Removal Order” (25 January 2012) New Zealand Petroleum and Minerals <www.nzpam.govt.nz>; Ministry of Economic Development “Minerals Programme for Minerals (Excluding Petroleum)” (1 February 2008) New Zealand Petroleum and Minerals <www.nzpam.govt.nz>. []
  56. CMA 1991, s 12. []
  57. CMA 1991, s 2, definition of “mining”. []
  58. CMA 1991, s 9. []
  59. CMA 1991, s 107. []
  60. CMA 1991, s 107(3). []
  61. Parliamentary Commissioner for the Environment Stockton Revisited: The Mine and the Regulatory Minefield (Wellington, 2009) at 46. []
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  64. Opoutere Ratepayers and Residents Association Inc v Heritage Mining NL PT Decision Auckland A 33/95 20 April 1995 []
  65. Otago Heritage Protection Group Incorporated v Macraes Mining Company Limited EnvC Christchurch C36/98 9 April 1998. []
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  69. At 578 []
  70. At 584 []
  71. At 583. []
  72. At 584 []
  73. At 585. []
  74. At 585. []
  75. Mining Act 1971, s 4A []
  76. Stewart v Grey County Council [1978] 2 NZLR 577 (CA) at 584. []
  77. RMA 1991, s 31(1)(a). []
  78. Powelliphanta Augustus Inc v Solid Energy New Zealand Ltd (2007) 13 ELRNZ 200 (HC). []
  79. At [50]. []
  80. At [61]. []
  81. Zdrahal v Wellington City Council [1995] 1 NZLR 700 (HC). []
  82. PCE Stockton, above n 61, at 37. []
  83. At 48. []
  84. At 51. []
  85. At 51 []
  86. Waikato Regional Council “Tui Mine Remediation Project” (2011)<www.waikatoregion.govt.nz/projects/Tui-mine>. []
  87. Gebbie v Banks Peninsula District Council [2000] NZRMA 553 (HC). []
  88. At [24]. []
  89. At [25]. []
  90. Canterbury Regional Council v Waimakariri District Council [2002] NZRMA 208 (EnvC) at [125]. []
  91. Gebbie v Banks Peninsula District Council [2000] NZRMA 553 (HC) at [31]. []
  92. At [35]. []
  93. For Hazelwood: Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100 (VCAT); Berger, above n 49; Andrew Komesaroff and Fiona Rosen “Victoria Developments – Hazelwood Power Station Greenhouse Gas Reduction Deed” (2005) 24(3) ARELJ 280; For Newlands: Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd (2007) 155 LGERA 322 (QCA); Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33; Mining and Other Legislation Amendment Act 2007 (Qld). See McGrath “The Xstrata Case”, above n 49. []
  94. Gray v Minister for Planning (2006) 152 LGERA 258 (NSWLEC). []
  95. At [155]. []
  96. At [126]. []
  97. Wildlife Preservation Society of Queensland Proserpine / Whitsunday Branch Inc v Minister for Environment and Heritage (2006) 232 ALR 510 (FCA) at [72]. []
  98. Pembina Institute for Appropriate Development v Canada (Attorney-General) (2008) FC 302 []
  99. Chalifour, above n 50, at 257. []
  100. Pembina Institute for Appropriate Development v Canada (Attorney-General) (2008) FC 302 at [75]. []
  101. At [79]. []
  102. Chalifour, above n 50, at 264 []
  103. RMA 1991, s 7(i). []
  104. Martin Manning and Andy Reisinger “The Science of Climate Change, its Potential Impacts and Global Response Options” in Alastair Cameron (ed) Climate Change Law and Policy in New Zealand (Lexis Nexis, Wellington, 2011) 1 at 29 []
  105. RMA 1991, ss 70A, 70B, 104E, and 104F. []
  106. RMA 1991, s 7(i). []
  107. Rive, above n 28, at 181; Resource Management (Energy and Climate Change) Amendment Bill 2003, Explanatory Note []
  108. Ministry for the Environment “Climate Change Effects and Impacts Assessment: A Guidance Manual for Local Government in New Zealand” (2nded, May 2008) <http://www.mfe.govt.nz>. []
  109. Final Report and Decision of the Board of Inquiry into the Turitea Wind Farm Proposal (6 September 2011) at ch 19 [14]; Maniototo Environmental Society Incorporated v Central Otago District Council EnvC Christchurch C 103/2009, 6 November 2009 at [354] and [722]; Meridian Energy Ltd v Wellington City Council EnvC Wellington W 031/07 14 May 2007 at [388]-[400]; Motorimu Wind Farm Ltd v Palmerston North City Council EnvC Wellington W 67/2008, 26 September 2008 at [357];Rotokawa Joint Venture Ltd v Waikato Regional Council EnvC Auckland A 41/2007, 18 May 2007 at [430](xii)(c); Unison Networks Ltd v Hastings District Council EnvC Wellington W 058/06 17 July 2006 at [74](i)-(j); Compare: Final Report and Decision of the Board of Inquiry into the Hauauru ma Raki Wind Farm and Infrastructure Connection to Grid (13 May 2011) at [1119]; Upland Landscape Protection Society Incorporated v Clutha District Council EnvC Christchurch C 85/2008, 25 July 2008. []
  110. Genesis Power Ltd v Franklin District Council [2005] NZRMA 451 (EnvC) at [220]. []
  111. Genesis Power Ltd v Greenpeace New Zealand Incorporated [2009] 1 NZLR 730 (SC) at [55]. []
  112. CCRA 2002, s 3 []
  113. CCRA 2002, s 63 []
  114. See generally: Klaus Bosselmann, Jenny Fuller and Jim Salinger Climate Change in New Zealand: Scientific and Legal Assessments (Auckland, New Zealand Centre for Environmental Law, 2002) at 122-132 []
  115. Katherine Trisolini and Jonathan Zasloff “Cities, Land Use, and The Global Commons: Genesis and the Urban Politics of Climate Change” in William Burns and Hari Osofsky (ed) Adjudicating Climate Change: State, National, and International Approaches (Cambridge, Cambridge University Press, 2009) 72 at 73 []
  116. Jessica Irvine “A Changing Climate for Urban Design: An Examination of the New Zealand Regulatory Approach” (2008) 12 NZJEL 277 at 287 []
  117. Minister for the Environment v Auckland Regional Council EnvC Auckland A094/96 6 November 1996 at 8. []
  118. Trisolini and Zasloff, above n 115, at 98. []
  119. Vernon Rive and Teresa Weeks “Adaptation to Climate Change in New Zealand” in Alastair Cameron (ed) Climate Change Law and Policy in New Zealand (Lexis Nexis, Wellington, 2011) 345 at 358. []
  120. Bernard Robertson “The Environment and Law” [2006] NZLJ 201 at 201 []
  121. Bosselmann, Fuller and Salinger, above n 114, at 141. []
  122. Canterbury Regional Council v Waimakariri District Council [2002] NZRMA 208 (EnvC). []
  123. At [22]. []
  124. At [103]. []
  125. At [111]. []
  126. At [112]. []
  127. AMI Ltd v Christchurch City Council EnvC Christchurch C 100/08 1 September 2008 []
  128. At [32]. []
  129. At [31]. []
  130. At [39]. []
  131. At [18]. []
  132. At [46]. []
  133. At [80]. []
  134. At [86]. []
  135. Sierra Club v Clinton 689 F Supp 2d 1147 (D Minn 2010). []
  136. Amy Stein “Climate Change under the NEPA: Avoiding Cursory Consideration of Greenhouse Gases” (2010) 81(2) U Colo L Rev 473 at 506 []
  137. Border Power Plant Working Group v Department of Energy  260 F Supp 2d 997 (SD Cal 2003). []
  138. Mid States Coalition for Progress v Surface Transportation Board 345 F 3d 520 (8th Cir 2003). []
  139. Conservation NorthWest v Rey 674 F Supp 2d (WD Wash 2009). []
  140. London Borough of Hillingdon v Secretary of State for Transport [2010] EWHC 686 (Admin); Barbone (on behalf of Stop Stansted Expansion) v The Secretary of State for Transport [2009] EWHC 463 (Admin). []
  141. Center for Biological Diversity “Negotiated Resolution of Consolidated Civil Action Coalition for Environmental Integrity in Yucca Valley, Center for Biological Diversity v Town of Yucca Valley (San Bernardino County Superior Court, Case No: CIVSS 810232) Walmart Supercenter, Yucca Valley Retail Specific Plan” (4 March 2010) <www.biologicaldiversity.org>. []
  142. Patrick Autocare Pty Ltd v Minister for Infrastructure (No.2) [2005] NSWLEC 412 []
  143. Sierra Club v Federal Highway Administration 715 F Supp 2d 721 (SD Tex 2010). []
  144. London Borough of Hillingdon v Secretary of State for Transport [2010] EWHC 686 (Admin) at [3]. []
  145. At [25]. []
  146. At [25]. []
  147. At [15]. []
  148. At [52]. []
  149. At [64]. []
  150. Barbone (on behalf of Stop Stansted Expansion) v The Secretary of State for Transport [2009] EWHC 463 (Admin). []
  151. At [72 []
  152. At [73]. []
  153. At [78]. []
  154. At [77]. []
  155. At [92]. []
  156. At [69]. []
  157. Genesis Power Ltd v Greenpeace New Zealand Incorporated [2009] 1 NZLR 730 (SC) at [55]. []
  158. Klaus Bosselmann “Achieving the Goal and Missing the Target: New Zealand’s Implementation of the Kyoto Protocol” (2005) 2 Macquarie J Int’l & Comp Envtl L 75 at 101. []
  159. Land Transport Management Act 2003, ss 3(1), 3(2)(b), 14(a)(ii)(E), 15(a)(ii)(E), 18J(2)(a)(ii)(E), 19B(a)(ii)(E), 20(2)(c)(v), 20(2)(d), 48(1)(b)(v), 58(1)(b)(v), 68(a)(ii)(E), 75(a)(ii)(E), 75(a)(iv), 87(1)(a)(ii)(E), 96(1)(a)(i), 105(2)(h), and 105(3)(g). []
  160. Bosselmann, above n 158, at 101. []
  161. Ministry for the Environment Climate Change Domestic Options Policy Statement (Wellington, 1999) at 77 as cited by Bosselmann, Fuller and Salinger, above n 114, at 101. []
  162. Susan Glazebrook “Human Rights and the Environment” (2009) 40 VUWLR 293; Stephen Humphreys and Mary Robinson Human Rights and Climate Change (Cambridge, Cambridge University Press, 2010); Amy Sinden “An Emerging Human Right from Climate Change: The Case against Gas Flaring in Nigeria” in William Burns and Hari Osofsky (ed) Adjudicating Climate Change: State, National and International Approaches (Cambridge University Press, New York, 2009) 173. []
  163. Svitlana Kravchenko “Right to Carbon or Right to Life: Human Rights Approaches to Climate Change” (2008) 9 Vt J Envtl L 513. []
  164. India: Charan Lal Sahu v Union of India (1990) 1 SCC 613; Subhash Kumar v State of Bihar (1991) 1 SCC 598; MC Mehta v Union of India (1986) 2 SCC 176; Nigeria: Gbemre v Shell Petroleum Dev Co Nigeria Ltd, No FHC/B/CS/53/05 (FHC 14 November 2005). []
  165. Subhash Kumar v State of Bihar (1991) 1 SCR 5 at 13 [also cited at (1991) 1 SCC 598] as cited by Kravchenko, above n 163, at 539. []
  166. Lawson v Housing New Zealand [1997] 2 NZLR 474 (HC) at 494. []
  167. New Zealand Bill of Rights Act 1990, s 6. []
  168. Tim Bonyhady “The New Australian Climate Law” in Tim Bonyhady and Peter Christoff (ed) Climate Law in Australia (Sydney, Federation Press, 2007) 8 at 26. []