West Coast ENT Inc. v. Buller Coal Ltd.

This case concerned the climate effects of offshore burning of coal mined in New Zealand. The action commenced after Buller Coal Ltd. and Solid Energy Ltd., two mining companies, each applied to earn consent from West Coast Regional Council and the Buller District Council to operate coal mines for export purposes under the Resource Management Act of 1991. West Coast ENT and Royal Forest and Bird Protection Society opposed to granting the operations, leading to this case. At issue was whether the effects of greenhouse gas emissions that Buller Coal’s offshore customers would eventually emit (scope three emissions) were relevant to Buller Coal’s consent applications for roading and other infrastructure to support a proposed coal mine. Notably, the application did not relate to the mining itself (mining was a ‘restricted discretionary activity’ and the District Plan did not include climate change effects as a relevant consideration for such activities); instead, the case was only against the consents for the ancillary aspects of the mine as they were discretionary, controlled or non-complying activities under the District Plan. The case was limited in scope: it began in the Environment Court as applications for declarations that the consent authorities could not consider the climate effects of scope three emissions. A brief statement of agreed facts accompanied the applications, but the agreed facts did not engage with matters such as the variability of demand for coal or whether the climate effects on the environment of burning the subject coal would, in fact, be intangible (refer to the High Court decision). The majority in the Supreme Court found that scope three effects were irrelevant. However, this was on the basis of 2004 amendments to the Resource Management Act 1991, which excluded scope three emissions from consideration in discharge to air applications (these exclusions have since been repealed in 2020). The majority reasoned that if those effects were excluded in discharge applications, they could not be read back in at the prior mining consenting stage. In obiter, the majority also expressed a tentative view that, regardless of the 2004 amendments, the climate effects of scope three emissions might have been irrelevant as a matter of general principle. While the majority accepted that questions of fact and degree would arise, it considered that scope three emissions were probably too indirect (depending on subsequent actions of others), too remote (particularly if burned offshore) or insufficiently tangible (since the effects of burning the coal from the subject mine would likely be imperceptible on a global scale). Further, the majority reasoned, world demand for coal was “presumably” such that if coal could not be taken from the Buller Coal mine, it would be substituted with coal from mines elsewhere in the world. Importantly, the majority in the Supreme Court did not express any concluded view on the question of whether scope three emissions engaged the general words of s 104(1)(a) of the Resource Management Act 1991. Note: For more recent discussion on consideration of indirect effects (not in a greenhouse gas context), refer to Sustainable Otakiri Incorporated v Whakatane District Council [2025] NZSC 158, where the Supreme Court differentiates from and reduces the weight on aspects of the 2013 Supreme Court decision, including the Supreme Court accepting that the science of climate change has changed since many of the obiter comments were made by the majority in Buller Coal, and in the context of climate change would not be supportable now (at [247]).