Summary/Abstract
In 2004, the New Zealand Parliament enacted amendments to the Resource Management Act 1991. Among other things, these amendments introduced a suite of provisions that prohibited local government from considering the effects of activities on climate change when deciding resource consent applications. Some uncertainty exists as to whether this prohibition could act as a barrier to the deployment in New Zealand of a relatively novel climate change mitigation technology called carbon capture and storage (CCS). CCS involves the capture of carbon dioxide emissions prior to emission to the atmosphere, and the compression and injection of the gas into subsurface storage formations. The courts have taken a strongly purposive approach to the 2004 amendments, restricting the jurisdiction of local government over climate change to a greater extent than is provided in the express provisions of the Resource Management Act. In the context of CCS, where the positive effects of the activity are almost wholly related to the climate, this may in practice result in consent being declined in all cases.
This article contends that while the prohibition in the 2004 amendments could at present hamper efforts to develop CCS projects in New Zealand, a solution can be found within the Resource Management Act itself, without the need for wholesale legislative amendment. In short, national environmental standards and national policy statements should be developed to direct or enable consent authorities to have regard to the positive aspects of CCS. This will enable CCS to occur in contexts where it truly promotes sustainable management, and allow market signals under the emissions trading scheme to determine, without inappropriate regulatory interference, when the technology should be implemented. However, alternative options involving more far-reaching legislative reform are possible, and may be preferable for reasons outside the scope of this article.