Moon-walking with due legal process to a very hot place – Neil Armstrong, coal mining & global warming

by Mr February on August 30, 2012

EarthApollo8.jpg

On the same day as the death of Neil Armstrong, the first astronaut to step onto the Moon, became public, the NZ High Court moonwalked its way to an off-the-world moment. It decided that greenhouse gas emissions and global warming are off-limits in the planning for an open cast coal mine. That’s as just as ‘out of this world’ as denying that the Moon landings ever happened, argues Simon Johnson.

On Saturday, two bits of news struck home to me very strongly. The first was the death of moon-landing astronaut Neil Armstrong. The second was the High Court decision that open-cast coal mines and global warming are legally and jurisdictionally unrelated in the Resource Management Act.

The moon landing in 1969 I remember very well. As a seven year old, I listened attentively to the ‘one small step’ broadcast. The whole class was silent under the spell of our teacher’s scratchy transistor radio. It’s one of my most strongly held memories of those days. I guess that reflects quite well on that class of seven year olds. They stopped playing bullrush, sniffing with colds, and fighting over lunches to listen attentively to the unfolding of one of humanity’s most historic moments.

While I was still fondly remembering the Moon landing, the next news item struck.

It was the High Court decision barring discussion of carbon dioxide emissions when coal mines seek Resource Management Act consents (see Radio NZ, NBR and TV3 and the Otago Daily Times).

Of course this is about the Perth coal company Bathurst Resources and their Escarpment Mine Project.

Bryan has posted that this project represents New Zealand doing a Pontius Pilate and washing its hands of the emissions. I posted that the decisions by councils and the Environment Court to date reflect the zombie ETS infecting the Resource Management Act with climate madness.

My Saturday morning reverie of the Moon landing was rudely stopped and I sort of grumbled to myself;

Open-cast coal mines and global warming are unrelated! Thats about as sensible as saying the Moon landings were faked by NASA. Neil Armstrong would just have smacked someone in the face!

From small half-asleep reactions, blog posts do grow. With the wee footnote that it was actually Buzz Aldrin who punched the Moon landing denier.

I could do a review of the legal issues, but that would be just more legal-climate yadda yadda. I will just note that back in the early 1990s, the Bolger National Government considered the Resource Management Act to be one of the main tools to deal with global warming.

As for the science of it, I will point to a couple James Hansen charts from his The Case for Young People paper. The first is cumulative emissions of carbon dioxide. Approving new coal mines adds to cumulative global emissions of carbon dioxide.

f5bcumco2scenariosJEH.png

f6bcumtempscenariosJEH.png

The second chart shows likely scenarios for temperature. The more carbon dioxide accumulates, the higher the likely temperature.

The facts are that each time a new coal mine is approved, we are just adding to the temperature overshoot above two degrees.

Why is it that the High Court can’t apply this simple logic? Why are we even in a position where the High Court can sever the undeniable link between new coal mines, the volumes of carbon dioxide accumulating globally, and the inevitable temperature rise? What has has happened to our legal and planning systems to make this sort of decision possible?

To me this outcome — where the global effects of more GHG emissions are legally severed from approval of a new coal mine — is just as ‘out of this world’ as denying that the Moon landings ever happened.

{ 29 comments… read them below or add one }

Thomas August 30, 2012 at 9:03 pm

Perhaps the matter is with the RAM act, not with the particular court. The Courts do not write the law, they simply assure that it is adhered to.
In this case it may be so that our RAM act does not allow the court to make a ruling as Forest & Bird had hoped for because of the very specific provisions in the RAM telling the court what it can and can not do.

A good analysis of the current RAM and its rather “interesting” provisions to dealing with the GW issue is found here: CLIMATE CHANGE AND THE RMA by judge Laurie Newhook from the Auckland Environment Court.

What we need is an RMA that recognizes our obligations to the future of humanity and this planet. Fat chance to get this under the current government!

Thomas August 30, 2012 at 9:15 pm

To cite the remarkable clause in the 2004 Amendment to the NZ RMA:

….the 2004 Amendment Act:
(b) To require local authorities⎯
(i) to plan for the effects of climate change; but
(ii) not to consider the effects on climate change of discharges into air of greenhouse gases.

…like a law telling the local copper to consider the effects of drink driving in the community BUT NOT to consider breath testing drivers seen staggering out of the pub on Friday night….

Yea Right!

We do live in the age of silly… Q.E.D.

Mr February August 30, 2012 at 10:36 pm

Thanks for the link Thomas!
Funnily enough Judge Newhook was the judge in the Environment Court declaration.

For gluttons for punishment, here is the full High Court decision Royal Forest and Bird Protection Society of New Zealand Incorporated v Buller Coal Limited

Another resource is something Auckland planner Joel Cayford has written about the RMA and climate change caselaw.

password1 September 3, 2012 at 2:51 pm

Yawn. I guess you didn’t read his first point, being that the judiciary aren’t to blame for not including ghg emissions considerations in resource consent disputes. It is explicit in the RMA. This means your entire blog post is wrong.

I personally think the RMA shoud not require councils to manage point sources of emissions, because of potential inconsistency in treatment between regions, because of double-up in controls with central government policies, because there are no local effects from any single source of emissions, and because central govt should carry the policy can as they signed up to the international agreements, not local govt. There are similarities with ozone depleting substances policies.

Local controls on emissions are environmentally ineffective and economically damaging, but presumably morally ‘right’.

Macro September 3, 2012 at 3:38 pm

“Yawn. I guess you didn’t read his first point, being that the judiciary aren’t to blame for not including ghg emissions considerations in resource consent disputes. It is explicit in the RMA. This means your entire blog post is wrong.”

And that is where you and the Judge got it wrong – because as has been pointed out – one of the original intentions of the Act was to limit GHGs.

From the wiki link:

“The RMA as originally enacted classified greenhouse gases as contaminants and it allowed consent authorities to consider the effects of global warming caused by discharges of greenhouse gases.[35] In 1994, the Fourth National Government regarded the RMA as one of its policies to mitigate climate change.[36] A number of decisions were made on that basis.
[edit] Stratford gas thermal power station

In 1993, the Electricity Corporation of New Zealand (ECNZ) proposed to build the Stratford Power Station, a 400 megawatt gas-fired power station in Stratford, Taranaki. ECNZ applied for a resource consent to discharge contaminants including carbon dioxide to the atmosphere. The Environment Minister Simon Upton established a board of inquiry under the Resource Management Act to hear and advise him on the proposal.[37]

In February 1995, the board of inquiry Report of the Board of Inquiry, Proposed Taranaki Power Station – Air Discharge Effects (February 1995)[38] concluded that the power station’s operation would significantly increase New Zealand’s emissions of carbon dioxide and make it more difficult for the Government to meet its obligation to reduce the emission of greenhouse gases to their 1990 levels as committed to under the United Nations Framework Convention on Climate Change. The board of inquiry recommended that ECNZ must establish a carbon sink “sufficient to eventually store in perpetuity the equivalent quantity of carbon emitted from the site over the term of the permit”.[39]

In March 1995, Environment Minister Simon Upton in Decision of Hon Simon Upton, Minister for the Environment, Air Discharge Permit Taranaki Combined Cycle Power Station (Wellington, Ministry for the Environment, March 1995)[38] accepted the bulk of the board’s report and approved the resource consents. Upton made the conditions requiring carbon sequestration more flexible. The offsetting condition would only apply when electricity sector CO2 emissions exceeded the volume emitted when the plant was commissioned. The offsetting condition allowed either forests to create a carbon sink or greater efficiency elsewhere.[40][36]

The decisions of the Minister and the board of inquiry set the precedent that under the RMA consent authorities can consider global warming to be a relevant effect and can impose conditions on companies that limit their discharges of greenhouse gases or require mitigation through offsetting or sequestration in forest sinks.[41] The N.Z. Forestry periodical noted that planting forests to mitigate CO2 emissions was a temporary solution for about 40 years that did not take into account CO2 emissions from the later harvesting stage.[42] In 2001, Minister for the Environment Marian Hobbs informed Parliament that ECNZ had never planted any forest for sequestration of the Stratford Power Station CO2 emissions.[43]”
[edit]

There are precedents..

andyS September 3, 2012 at 3:44 pm

This is great.
If this ever goes through, I will be objecting to every single piece of industrial activity that is proposed in NZ.

I will take great pleasure in this.

password1 September 3, 2012 at 4:36 pm

I’m not wrong and neither is the judge. The precedents are irrelevant because the RMA was amended in 2004 (after the above circus), with new section 70A inserted to make it clear that the climate change effects of ghg emissions were not the concern of councils. That’s 8 years Mr Feb has had to understand this.

http://www.legislation.govt.nz/act/public/1991/0069/latest/DLM233656.html

Thomas September 3, 2012 at 5:48 pm

Yes that is how it is Password1. But, this of cause is a problem. If the local authorities are charged with allowing or not allowing a locally occurring activity BUT must refrain from looking at the global effects of that local activity THEN we will obviously allow local activities that can be very harmful for the global situation. Obviously this is nonsense and must change.

andyS August 31, 2012 at 8:18 am

The coal on the West Coast that is proposed to be mined by Bathurst is coking coal used for steel production.

If you wish to stop this on environmental grounds then you should stop using all steel products.

Kiwiiano September 1, 2012 at 8:09 am

They used to make steel with charcoal, a renewable resource, before they discovered coal. Not on the same scale of course and the quantity of trees needed to supply the modern coking furnaces would occupy vast areas of land that are going to be needed for food production. Still, if we reduced our consumption of steel, as in no cars over 250cc, $1 refund on returned, clean baked beans cans, only wooden buildings, etc, etc, it may be feasible. We would have to find out eventually, when the coal runs out but only if Watts, Koch et al are right and we haven’t knackered the biosphere.

viv k September 1, 2012 at 9:59 pm

No andyS,
It is not necessary to remove yourself from the system before commenting on the system.
As kiwiiano says, steel can be recycled.
There is also no sense in mining coking coal to make steel to pour kilometres deep underground to line oil & gas wells (fracking or otherwise) to extract more fossil fuels.

andyS September 2, 2012 at 7:17 am

How do you recycle steel without fossil fuels?

Tom Bennion August 31, 2012 at 12:41 pm

AndyS

Your comment is reminiscent of Energy Minister John Luxton’s statement in Parliament in 1991:

“Mining is an important industry. I ask those people, who think that NZ should not have mining, to think again what the country would be like without it – probably there would be mud huts and plenty of trees.”

If we are in to hyperbole, I could equally reply, if we dont stop using coal we will all end up dwelling in caves, and spending our evenings dancing round a fire smeared in woad yelling ‘here piggy’.

But where does that get us?

So, are there alternatives to steel in some circumstances so we can radically reduce use of coal etc. That is a more productive discussion surely?

andyS August 31, 2012 at 1:26 pm

I am sure we could have more productive discussions, which is why I try to promote things like Thorium which could provide us with a lot of energy that could displace coal

The problem I have is that the environmentalist response is always saying no without providing alternatives, other than de-industralising our economy and returning to an era of labour intensive work.

Beaker August 31, 2012 at 10:47 pm

“…and the Bristol Channel where they are propsing that Atlantic Array I am about ot object to on environmental grounds…”
http://hot-topic.co.nz/offshore-wind-a-huge-resource/#comment-34035

noelfuller August 31, 2012 at 8:21 pm

andyS

The view (not yours perhaps) that environmentalists are demanding instant cessation of current practice is false. Your concern that they don’t come up with alternatives is often untrue and always a misrepresentation of the situation.

Evidently an environmentalist worried, say, at the pollution of a river by a factory is supposed to come up with an industrial solution for that factory or the protest can be disregarded. At best the environmentalist is a micro-biologist or something in the natural sciences, more usually he or she is someone who can’t stand that poisoned black river flowing through or by their property and occasionally flooding it.

I am thinking of the Tarawera river which flows through the factory town of Kawerau. The papermill dumps all its waste into that clear mountain river so that from there on it is known as the Black river. For decades environmentalists have protested this pollution which kills all life in the river and the associated coastal wetlands. The last time the factory’s water rights came up for renewal the factory argued for 25 years to solve the problem – the environmentalists argued for 5 years. The factory got its way as always, In 25 years the facrory could go out of business – demand for newsprint may be decreasing – or ownership could change as it has before, or pigs could fly. They have no incentive to solve the problem.

This example is special to me because I have worked at that factory. The first time a tank full of bleach went wrong on me I was shocked to discover that it got discharged directly into the river with no kind of treatment. That was 1960!

So the purpose of some kind of tax on carbon or on pollution or whatever, is to motivate the selfish to tackle the problems they create. Our ETS scheme pretends to do something about that but does not and cannot. Were the government to create a climate where industry and science focussed on the problems we would have far better chances of finding those alternatives and implementing them.

Instead they are dismissed one way or another so little gets done. Taking CO2 emmissions from coal into account with coking coal is a problem that conservatives locked into past thoughts cannot see an answer to but were it addressed we would probably wind up with work being done on finding alternatives or some change to the economics to favour some alternative.

Another instance is the just announced shedding by Solid Energy of their biofuel and wood pellet subsidiaries because they are not performing – they would for certain be better performing if the parent company were primarily interested in seeing them perform rather than concentrate as it is on getting as much out of coal as it does, a management that is not interested in alternatives succeeding – how could they perform? Of course one also has to ask what the criteria is for performance – is it competing with coal on the bottom line perhaps? We see the same thing with oil companies, buying into alternative energy programs then after a while closing them saying they are not performing.

Noel

Thomas September 2, 2012 at 8:46 am

Meanwhile in the glorious USA the presidential hopeful Mitt Romney spouted out “Obama wants to help the Planet… I however want to help AMERICAN FAMILIES!!!” To a standing ovation and huge applause by his dumbwitted fellowship of evolution denying, climate change denying walking caricatures of the genus homo sapiens….

bill September 2, 2012 at 12:15 pm

…all of whom are in the thrall of plutocrats and Zombie Economics.

In other words, Deniers.

noelfuller September 2, 2012 at 7:19 pm

about recycling steel
alternating current electric arc furnaces seem to be best practice:
http://en.wikipedia.org/wiki/Electric_arc_furnace

The use of EAFs allows steel to be made from a 100% scrap metal feedstock. This greatly reduces the energy required to make steel when compared with primary steelmaking from ores.

Noel

Mr February September 3, 2012 at 12:07 pm

About the “If you oppose coal mines, you must want us all to live in huts made of sticks” argument.
While this is obviously a strawperson argument, based on a caricature of people concerned about climate change being luddites, it’s also completely economically irrational.
If the Excarpment Mine consents are declined, and the mine does not go ahead, what is the effect on the world coal price? It would be nothing, nada, zip. What is the effect on coal supply and demand? Again nothing nada, zip.

Also the argument is only assymetrically used: against climate change and against conservation.

Solid Energy are being pretty “anti-coal production” at the moment. Spring Creek not economically viable – Elder. Do we hear anyone saying Don Elder wants to take us all back to dancing round a fire in loincloths, smeared in woad, chanting “Here Piggy Piggy”?

andyS September 3, 2012 at 12:15 pm

Solid Energy will be basing their decisions on economic factors.

Forest and Bird are basing their decisions on the “global” problem of climate change.

If you oppose coal production in NZ on the grounds of “climate change”, then you need to oppose all coal production, anywhere.

Similarly, you need to oppose all steel production, anywhere

Gareth September 3, 2012 at 2:02 pm

Stupid argument, Andy. It’s perfectly possible to argue for greatly reduced coal burning, whilst maintaining some strategic uses. Just as it makes sense to reduce burning oil while carrying on using it as a feedstock for plastics, etc.

andyS September 3, 2012 at 2:05 pm

So which coal mines will you be permitting then?

Gareth September 3, 2012 at 7:10 pm

Up to democratic processes, not me. Policy prescriptions are where the debate should be. If you want to have that discussion, you will need to stop posting ludicrous straw men arguments.

Thomas September 3, 2012 at 2:05 pm

Another of Andys straw man….
If you want to start to tackle GW then it would be a good start to perhaps not develop new coal mines! Especially in ecologically valuable places.
We need to reduce the amount of coal we are committing to turning into CO2 and urgently so. So lets start at stopping the growth in coal use. Then lets reduce coal use where we can.
So stop throwing these silly straw man arguments around that try to equate tackling the problem of growing CO2 emissions with wanting to put us back into the stone age. All you do with this silly posting is to underline the fact that you argue like twit. Some people conclude that you therefore are a twit….. You deliver them a lot of ammunition….

John ONeill September 3, 2012 at 5:43 pm

’42% of crude steel produced is recycled material’- according to the Wiki oracle. As with aluminium, energy and carbon costs for recycling are much lower than for using ore, though the savings with iron are less. The US has a much higher rate of recycled over new steel production – I guess they don’t talk about the rust belt for nothing. In addition to electric arc furnaces, there have been proposals to use hydrogen for smelting if cheap nuclear generated hydrogen from high temperature third generation reactors becomes available. ( Hydrogen used industrially now is made using natural gas; electrolysis from water is much more expensive)

Mr February September 3, 2012 at 11:14 pm

Password 1

The 2004 amendment stops councils taking into account greenhouse gases
when they consider applications for air discharge consents.

I suggest you read the Environment Court decision and then the High Court decision.

The Environment Court said that greenhouse gases can’t be taken into
account at all in a land use consent because of the 2004 amendment.

The High Court said it is not so sure. The High Court wondered if councils might or should take greenhouse gas emissions into account in city planning for example, the redevelopment of Christchurch. It is not nearly so cut and dry.

Forest and Bird were asking ‘show us the words which say greenhouse gases cant be taken into account in *any* circumstances.”

I don’t think the High Court has answered that question.

password1 September 4, 2012 at 9:27 pm

The High Court judgement has very clear conclusions on the two queries of interpretation brought to it by the appellants and in the face of the facts of the particular case. Postulating on implications for urban form planning was interesting but essentially irrelevant to the actual land use consent application. The judgement contains all the answers you need for your questions in your blog post (as does the Environment Court judgement), suggesting to me you didn’t bother to read and understand these judgements and the policy/legislative background before penning your kneejerk story. Such analytical superficiality and distracting text reminds me of some denial blogs.

Mr February September 5, 2012 at 12:10 pm

pw1, you really have to stop reading those denial blogs. They are just bad for your health.

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