Consider a hypothetical winery that seeks resource consents (including a water take permit) to set up a vineyard, cellar door and restaurant.
For the RMA decision maker assessing the environmental effects of this proposal, noise, traffic and the effects from the water take on stream water levels are clearly relevant considerations.
But what about more remote effects, such as fuel (including greenhouse gas) emissions associated with importing glass bottles and exporting wine? Is the carbon footprint of the winery something that should be taken into account during consenting? Can it?
Nexus and remoteness
It is well established in RMA case law that consequential effects of granting resource consents are relevant considerations for the decision maker, subject to a case specific assessment of nexus ("the degree of connection between the activity and the effect"1) and remoteness ("the proximity of such connection"2).
Beadle3, one of the leading cases on consequential effects, concerned a resource consent application for earthworks and streamworks required to establish a corrections facility. The Environment Court was asked to consider whether the purpose for which those consents were being sought (the corrections facility) and the consequential effects of that purpose (including "the effects of the stigma of Ngawha Springs as a prison town, and risks of harm from escaping detainees"4), were relevant to its decision on consent. The appeal was dismissed, however in its deliberations the Court observed "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".5
A changing landscape: Buller Coal, Te Korowai and climate change
More than 20 years have passed since Beadle was decided. In that time, the urgency surrounding the global climate change crisis has heightened, leading to legislative, policy, and societal changes. The courts, too, have been grappling with these issues, including the question of how far the boundaries of consequential, or 'end use', effects under the RMA can (and should) extend when dealing with a climate change issues.
The 2012-2013 Buller Coal6 decisions examined whether effects of burning coal on climate change were a relevant consideration for RMA decision makers in consenting decisions. In Buller Coal, the resource consent applications being sought were for land use (and associated activities), disturbances of water ways and discharges of contaminants in connection with a proposed open cast coal mine.
At the time the Buller Coal decisions came out section 104E was in force, expressly preventing consent authorities from having "regard to the effects of a [discharge into air of greenhouse gases] on climate change" when considering discharge permit or coastal permit applications.7 Section 104E had been enacted through the Resource Management (Energy and Climate Change) Amendment Act 2004 together with sections 70A and 70B which, in a similar vein to section 104E, restricted the ability of regional councils to have regard to the effect of greenhouse gas emissions on climate change when making rules controlling such emissions.8
The legislative background to these provisions is important.9 At the time the 2004 amendments were being enacted Parliament was seeking to enable better "national co-ordination of controls on greenhouse gas emissions" and it was thought that such co-ordination could be better achieved by removing the power of individual regional councils to consider the effects of such emissions on climate change when making plans or determining consents.10 As cited in Buller Coal, Parliament's view was that it was "most appropriate to specifically address industrial air discharges at the national level."11
However, as well as analysing those amendments, the Supreme Court majority in Buller Coal also took a 'first principles' approach and considered the legislative position as it was prior to the 2004 enactment of section 104E, when the Court was not statutorily prevented from considering effects on climate change. Even in the 'pre 2004' scenario, the Supreme Court considered the climate change effects were "direct consequences of burning coal, rather than mining it"12, and because those effects would only arise as a result of activities "ancillary" (coal burning) to the activities for which consent was sought (land use, disturbance of water ways and discharges for the purpose of a coal mining operation), they were not "actual or potential effects on the environment of allowing the activity" for the purpose of a resource consent assessment.13 In other words, even if it was not barred from considering effects on climate change, the Supreme Court majority would not have – in those circumstances – considered them to be effects of the activity.
That conclusion took on a new significance from 30 November 2022 when the Resource Management Amendment Act 2020 came into force. Sections 70A, 70B, 104E and 104F were repealed, reflecting the evolution in climate change policy (which has since included 2022's Emissions Reduction Plan and National Adaptation Plan) and the Government's goal of transitioning to net zero carbon emissions by 2050.14
Nexus and remoteness have also been considered in other contexts, including water bottling15 and renewable energy. In the 2022 Environment Court decision Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd16, which involved the proposed Kapuni Green Hydrogen Project, the 'end use' issues stemmed from electricity produced from proposed wind turbines, which in turn would be used to power an ammonia-urea manufacturing plant producing fertilizer. At issue was the eventual use of that fertilizer for pasture and the related greenhouse gas emissions from grazing sheep and cattle.
In a similar vein to Buller Coal, the High Court considered the 'end use' effects to be "well down the chain" and found "no sufficient nexus to the environmental effects complained of (…) to decline the application."17
Implications of the shift
So where does this policy and legislative shift leave Buller Coal and Te Korowai? If they were heard today, with addressing climate change essentially at the top of the global 'to do' list, could that influence the courts' analysis of whether there is a sufficient nexus between the activities required respectively for the coal mining operation and the wind turbines, and the 'end use' effects on climate change? What would that outcome mean for other developers?
Or, does the Supreme Court's 'pre 2004' analysis in Buller Coal, including its commentary on the 2004 amendments and findings on nexus and remoteness, still stand?
Parliament was silent on these questions when passing the 2020 amendments, however given the original purpose of sections 70A, 70B, 104E and 104F was to enable better national coordination (including by restricting ad hoc regulation of climate change effects on individual plans or consents), the latter scenario appears more likely. This is especially so when considering that a key reason for the repeal of those provisions was the enactment of the Climate Change (Zero Carbon) Amendment Act 2019 and its requirements for greater national climate change related direction, including through the Emissions Reduction Plan and National Adaptation Plan.18 The alternative outcome, which would require councils to assess, on an individual consenting basis, how far down the chain of effects they can or should assess, could easily lead to inconsistent and inequitable outcomes.
Nevertheless, uncertainty on the practical implications of the shift remains, and there would be great benefit in having more government guidance, and ideally national direction, on how councils and consent applicants should address and respond to these issues (including, pressingly, greenhouse gas emissions).
Until then, however, with those recent amendments we can expect:
- Submissions on consent applications (and designations) to raise climate change (greenhouse gas emission) issues relating to both embedded and operational emissions. Consent applicants will benefit from a proactive approach, thoroughly considering such matters (relevant to the scale and significance of the project) when preparing consent applications.
- A new batch of climate focused plan policies and rules being promulgated around the country (such as the Wellington Regional Policy Statement - Change 1). As this happens there will be flow on effects when RMA decision makers are assessing resource consents, and questions of nexus and remoteness will become more relevant and closely scrutinised than ever. Councils promulgating climate focused plan changes will need to keep the Supreme Court's findings in Buller Coal front of mind in relation to nexus and remoteness. Submitters on policy and plan changes will also need to navigate these complex issues and, again, consent applicants should be taking a proactive approach when preparing their applications.
Conclusion
So what does this mean for our hypothetical winery? It will likely need to navigate a broader spectrum of effects than previously required as it prepares its resource consent application. In doing so, it must keep close attention on nexus and remoteness issues and on policy and plan developments, with a particular focus on consequential greenhouse gas effects.
1 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196 at [61].
2 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196 at [61].
3 Beadle v Minister of Corrections ENC Wellington A74/02, 8 April 2002.
4 Beadle v Minister of Corrections ENC Wellington A74/02, 8 April 2002 at [74].
5 Beadle v Minister of Corrections ENC Wellington A74/02, 8 April 2002 at [88].
6 Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 2156, [2012] NZRMA 552 and West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32.
7 Except where the use and development of renewable energy were involved.
8 Other provisions brought in through the 2004 amendments included section 7(j), which introduced the benefits of renewable energy as an "other matter", and section 104F which related to the implementation of national environmental standards relating to the effects of greenhouse gas emissions on climate change.
9 This background is discussed by the Supreme Court majority in Buller Coal from [60].
10 Report of the Local Government and Environment Committee on the Resource Management (Energy and Climate Change) Amendment Bill (48-2) < https://www.parliament.nz/resource/en-NZ/47DBSCH_SCR2628_1/1db812fa0826a8eb7cec93038332d7c107b1bfd6> Retrieved 13 July 2022 at 2.
11 West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 at [61] citing Resource Management (Energy and Climate Change) Amendment Bill 2003 (48-1) (explanatory note) at 5.
12 West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 at [117] citing Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 2156, [2012] NZRMA 552 at [43]. Elias CJ, dissenting, considered the effects were not too remote and the end use effects of coal could be considered under s 104(1)(a) of the RMA.
13 West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 at [118] and [172].
14 Set by the Climate Change Response (Zero Carbon) Amendment Act 2019.
15 In particular, Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2022] NZCA 598, which is being appealed to the Supreme Court (Buddle Findlay acts for the second respondent), and Cloud Ocean Water Limited v Aotearoa Water Action Incorporated, which was heard in the Supreme Court in late March 2023 and awaits a decision.
16 Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd [2022] NZHC 2810.
17 Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd [2022] NZHC 2810 at [313] and [315].
18 Resource Management Amendment Bill 2020 (commentary) at 16.
