Greenpeace takes climate fight to Supreme Court
Genesis Energy and Greenpeace will face off in the Supreme Court tomorrow, in a case that could have major implications for climate change in New Zealand.
Last December, a Court of Appeal ruling removed a crucial legal control on polluters’ greenhouse gas emissions in New Zealand. The court ruled in favour of Genesis Energy (a State Owned Enterprise which runs several thermal power stations, and wants to build a new one at Rodney, in John Key’s constituency of Helensville),and declared that the impact of greenhouse gases on climate change should not be a consideration under the Resource Management Act (RMA), where the greenhouse gases are from non-renewable energy sources.
This means that the climate impact of coal, gas or oil-based energy production can no longer be considered by local authorities.
Greenpeace has appealed the decision to the Supreme Court, which will hear the case tomorrow.
The Court of Appeal said the RMA provides local authorities with the power to take into account the likely effects of climate change, but not to give consideration to the causes of climate change. This has helped pave the way for Genesis’ proposed gas-fired power station at Rodney.
“The State Owned Enterprise (SOE) - whose shareholders are government ministers – used public money to remove the only existing legal protection for the climate in New Zealand and to have the effects of the greenhouse gases it discharges deemed irrelevant under the law,” said Greenpeace climate campaigner Susannah Bailey.
“The law as it now stands could allow millions of tonnes of greenhouse gases to be emitted without any regulatory consideration of their impact on climate change, we are in the Supreme Court to try and ensure there are no legal loopholes in terms of climate protection.”
Ms Bailey said New Zealanders cannot rely solely on the Government’s proposed climate policy package to protect the climate.
“In recent weeks, we’ve seen the Government’s flagship climate policy, the emissions trading scheme, watered down on the back of business pressure. The National Party has withdrawn its support for the scheme. The future of the proposed moratorium on new fossil fuel generation is also unknown. And it only applies for ten years, includes caveats which could allow new polluting thermal plants to continue to be built, and does not cover other forms of greenhouse gas discharge such as emissions from industrial processors.
“We are continually seeing protection of the climate under attack and weakened by big polluters.”
Neither Labour nor National have yet developed policies that will actually prevent climate-polluting projects like the Rodney gas-fired power station from proceeding.
“It is ironic that at a time when the Government says it’s serious about dealing with climate change and about to play host to the ‘kick the carbon habit’ themed World Environment Day, its own SOE is fighting to prevent local authorities from considering the climate change effects of polluting projects.” Notes to Editor
(1) The Court of Appeal ruling states that ‘In considering the application by Genesis Power for a discharge permit relating to the discharge into the air of greenhouse gases associated with the proposed Rodney power station, the Auckland Regional Council must not have regard to the effects of that discharge on climate change.’
(2) The original High Court ruling, the effect of which Genesis wants reversed, involved fellow SOE Mighty River Power’s plans to convert the Marsden B power station in Northland to run on coal.
The High Court ruled in favour of Greenpeace and against Mighty River Power by declaring that regional councils must take climate change into account for applications for discharge of greenhouse gases.
Mighty River Power filed an appeal of that decision to the Court of Appeal (which Genesis tried to join) but it was dropped when Mighty River Power abandoned the Marsden B proposal earlier this year, after a three year campaign against the project by Greenpeace and community groups.
Genesis then filed separate proceedings, and sought a declaration which would in effect reverse the High Court decision, saying such a declaration would help it gain resource consents for its Rodney power station. Genesis also runs Huntly power station, which is New Zealand’s biggest single source of greenhouse gas emissions.
What exactly did Genesis seek?
Genesis asked the Court of Appeal to declare that, when a permit to discharge greenhouse gases is sought and the project doesn’t involve renewable energy, 1) authorities do not have to consider the effects of the greenhouse gas emissions on climate change 2) the benefits of renewable energy and climate protection are not relevant considerations, and 3) regional councils may not make rules that have regard to climate change.
How do Genesis’ actions tie in with the RMA?
The Resource Management Act (RMA) was amended in 2004 to affect regional councils’ ability to directly manage and regulate greenhouse emissions. But Greenpeace argued in the High Court that the RMA still provides for climate change to be considered through the benefits of renewable energy development in reducing climate change emissions. The High Court decision confirmed that it does.
Timeline:
October 2004 – Mighty River Power lodged an application with Northland Regional Council for resource consent to refire Marsden B power station on coal.
October 2005 - Greenpeace and other community groups lodged an appeal to the Environment Court.
February 2006 - Mighty River Power submitted to the Environment Court that climate change could not be considered in the overall appeal.
July 2006 - The Environment Court made its decision regarding the relevance of climate change to the overall appeal, finding that climate change is not a relevant consideration that can and must be taken into account when approving Marsden B.
August 2006 - Greenpeace appealed the decision on climate change to the High Court.
October 2006 -The High Court overturned the Environment Court decision and said that climate change does need to be considered.
November 2006 - Mighty River Power challenged the High Court decision to the Court of Appeal. Genesis Energy indicated their interest in joining the appeal on Mighty River’s side, and after failing in an attempt to join in the High Court, applied in the Court of Appeal to join as a party to the proceedings, but their application was never heard.
March 2007 - Mighty River Power abandoned its coal plans at Marsden B and withdrew its resource consent application and its appeal to the Court of Appeal.
May 2007 – Genesis Energy filed new legal proceedings against Greenpeace in an attempt to have the effect of the High Court ruling protecting the climate reversed.
September 2007 – Auckland Regional Council (ARC) join the appeal, stating that national standards need to be developed to provide guidance on how consent authorities should deal with climate change issues. Such national standards would help regional councils apply the RMA in cases involving greenhouse gases.
October 2007 – Genesis, ARC and Greenpeace appeared in the Court of Appeal
December 2007 – The Court of Appeal ruled in favour of Genesis Energy.
February 2008 – Greenpeace granted leave to appeal the Court of Appeal decision at the Supreme Court
28 May 2008 – Genesis and Greenpeace appear in the Supreme Court