judgment

West Coast ENT Inc. v. Buller Coal Ltd. - judgment

Litigation

Sabin

Sabin Litigation

decision

West Coast ENT Inc. v. Buller Coal Ltd. - decision

Filing Year For Action

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excluded scope three emissions from consideration in discharge to air applications (these exclusions have since been repealed in 2020).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]).

West Coast ENT Inc. v. Buller Coal Ltd.

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.

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

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

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

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

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.

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

West Coast ENT Inc. v. Buller Coal Ltd. - judgment

Policy instrument

Fossil fuel

Greenhouse gas

Economic sector