Hiringa Energy Ltd and Ballance Agri-Nutrients Ltd, the respondents, proposed to construct a hydrogen plant in Taranaki. The hydrogen produced will initially be used as feedstock for synthetic nitrogen (urea) fertiliser, at an existing production facility (the Ballance Plant), before transitioning over a five-year period to supply hydrogen fuel for commercial and heavy transport (the Project).

A resource consent for the Project was granted under the COVID-19 Recovery (Fast-Track Consenting) Act 2020 (FTCA) by an expert consenting panel. The intended transition to supplying hydrogen fuel for commercial and heavy transport was the key reason the consent was granted, as it would help to reduce GHG emissions associated with road transport. 

The decision of the expert consenting panel was appealed to the High Court on a question of law by Te Korowai o Ngāruahine Trust (Te Korowai), supported by four hapū (Ngā Hapū), primarily contenting that in granting the consent, the Panel had failed to act in a manner consistent with Te Tiriti o Waitangi as required by the FTCA. 

Greenpeace Aotearoa was also an interested party in the High Court appeal, with its primary concern being the proposed transition from hydrogen for fertiliser to its intended use as fuel for commercial and heavy road transport. Greenpeace considered that the Panel failed to include any condition requiring the transition actually to occur, and that this was an error of law. 

In the High Court, Grice J dismissed the appeal. Greenpeace appealed this decision to the Court of Appeal. At the Court of Appeal, Greenpeace contended that the Panel failed to include any condition requiring the transition actually to occur and this was (1) an error of law, or meant that the Panel erred in assessing the environmental effects of the Project on the basis that the transition would occur; (2) meant that the issue of transition was left to be addressed by the relevant local authority (South Taranaki District Council) and that this was an unlawful abdication of that Panel’s decision-making function under the FTCA; and (3) the Panel failed to actively protect Māori interests because it left a crucial decision about the Project to be made by a decision-maker who, unlike the Panel, was not required to act consistently with the principles of the Treaty of Waitangi. 

The Court of Appeal dismissed the appeal, finding that the Project was not referred to the Panel under the FTCA because it would certainly make a successful transition to utilising the hydrogen for transportation. Instead, it was referred to the Panel in part because, if the intended transition to hydrogen fuel were successful, it would assist New Zealand’s efforts to mitigate climate change and transition to a low-emissions economy more quickly. The conditions of the consent reflected this intention, but did not require a successful transition, as that could not be assured. The conditions of the consent properly matched the justification for the Project’s referral to the Panel. The Court also found the decision to be consistent with the principles of the Treaty. 

Greenpeace Aotearoa Inc v Hiringa Energy Limited and Ballance Agri-Nutrients Limited

<p>This entry was provided by the Sabin Center for Climate Change Law. Please see the terms of use for citation and licensing of third party data.</p>

Greenpeace Aotearoa Inc v Hiringa Energy Limited and Ballance Agri-Nutrients Limited - decision

Filed

New Zealand

The Climate Litigation Database

Find climate change litigation data and indicators for {text}.

{text} litigation

Sabin Center for Climate Change Law provides Climate Litigation Database, a comprehensive database of US and Global climate change caselaw

Quickly and easily search through the complete text of thousands of climate change law and policy documents from every country.

Search the Climate Litigation Database

An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

Codes and standards are regulatory instruments that specify minimum standards to protect health and safety. This ranges from performance standards, which prescribe outcomes while allowing flexibility to achieve compliance, to the more prescriptive approach of technology-specific standards.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Actions or measures to adapt freshwater systems to climate change.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

Replacing technologies that burn fossil fuels directly with alternatives powered by electricity.

Actions to reduce emissions in energy generation and supply.

Technologies that capture and hold energy in reserve for later use.

Production of electricity and heat from solar irradiation.

Kinetic energy of airflow transformed into useful energy, mostly electrical energy.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

People with different national or cultural traditions from the dominant population

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

The activities of industries that transforms raw materials into finished goods through industrial processes.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves the wholesale and retail selling of goods.

This sector involves activities to move goods and people, alongside the storage of products.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

This sector involves the distribution, treatment, and conservation of water resources.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Greenpeace Aotearoa Inc v Hiringa Energy Limited and Ballance Agri-Nutrients Limited - decision

Policy instrument

Risk

Impacted group

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance