Students lose climate case against energy minister

The High Court found that Energy Minister Megan Woods made a legal decision in granting permits for companies to search for new fossil fuels in Taranaki.

The students, whose future will be increasingly affected by extreme weather and rising sea levels, sued the minister over the decision. They argued that the Minister was obliged to consider the implications of the decision on climate change, but that this analysis was “superficial” and inadequate.

Under the Treaty of Waitangi, the Minister had to give importance to the impact of global warming on Maori, Students for Climate Solutions told the High Court.

Judge Francis Cooke agreed that, at least under Te Tiriti, climate impacts “may become relevant”. But it would be illegal to attach substantial importance to climate change, he concluded. Because these matters are dealt with by other means, Cooke denied the judicial review.

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* COP26: Students sue Megan Woods for oil and gas exploration
* Government gives green light to companies to search for new fossil fuels in Taranaki – and could do so again in 2022

In June last year, the minister granted two permits that would allow oil and gas companies to search for fossil fuel reserves in Taranaki, until 2031. Although the government has banned offshore oil and gas exploration , it continued to offer permits for land-based activities.

Woods did not approve the permits herself, but delegated her authority to Phillippa Fox, chief executive of the Department for Business, Innovation and Jobs.

The government had previously declared a climate emergency.

In the weeks before the permits were approved, the International Energy Agency’s global expert body concluded that global oil and gas exploration should stop immediately if countries are to reach zero. net by 2050 and keep global temperatures 1.5°C above pre-industrial levels, which would limit the rise of severe heat waves and storms.

“There is no need to invest in new fossil fuel supplies” as part of an achievable path to reaching 1.5C, according to the agency’s report.

At 1.2°C warming, the world is already experiencing deadlier heat waves, economy-threatening droughts and record-breaking storms.

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Representing Students for Climate Solutions at last month’s hearing, lawyer Michard Heard argued that the government was legally bound to consider how permits could contribute to the climate crisis.

The government should have calculated the tonnes of emissions that could be released if oil and gas were discovered and considered how that might make it harder for the country and the world to meet climate goals, Heard said.

Instead, officials told Fox the country has set a national goal for 2050 and is working on a plan to meet that goal. Officials also noted that the 2050 goal was net-zero, rather than zero, emissions, indicating that some ongoing emissions might be appropriate if there was a method to absorb them.

Representing the minister at the hearing, attorney Aedeen Boadita-Cormican argued that Fox was not obligated to consider the environmental impact of fossil fuels. However, she chose to consider it, ultimately believing climate change had “insufficient leverage” to deny the permits.

The Crown Minerals Act outlines how permits are granted in Section 25, which prohibits fossil fuel exploration anywhere except Taranaki. Section 29 lists guidelines on how a minister should consider applications.

These sections do not mention climate change. If lawmakers wanted the issue considered, “guidance would be needed, or at least expected,” Cooke wrote.

In 2018, Prime Minister Jacinda Ardern announced that offshore oil and gas exploration would be banned.

Kevin Stent / Stuff

In 2018, Prime Minister Jacinda Ardern announced that offshore oil and gas exploration would be banned.

When the government curbed offshore fossil fuel exploration, it changed the law. Therefore, climate change is not a relevant issue worth considering, he concluded.

“The argument that not enough is being done to combat climate change and that there should be no more mining for fossil fuels is an argument that the Crown Minerals Act requires further amendments by Parliament.”

Cooke went further in his judgment, stating that if Fox had “substantially taken [climate change] account, it would have acted illegally”.

Rulings must be consistent with the purpose of a law, Cooke said. Its purpose is “to promote the prospecting, exploration and exploitation of Crown minerals for the benefit of New Zealand”.

Heard argued that “for the benefit of New Zealand” should act as a limitation, that mining that would negatively affect the environment and communities should not be permitted.

But Cooke decided that, had Parliament intended that meaning, it would have written ‘if’ or ‘when’ rather than ‘for’.

Cooke also dismissed the argument that a section of the zero carbon law allows or requires a minister to consider Aotearoa’s climate goals when making decisions about other legislation.

It states: “A person or body may, in the exercise or performance of any public function, power or duty conferred on such person or body by or under the law, take into account: the 2050 target, or an emissions budget, or an emissions reduction plan.

Cooke thought Parliament should “more specifically” amend the Crown Minerals Act itself.

The audience also debated the legal requirement for a minister to consider te Tiriti. Climate change will disproportionately affect tangata whenua.

Heard argued that the department should have carried out an exercise considering the impact of fossil fuel extraction specifically on Maori, but failed to do so.

Before permits were granted, officials engaged iwi – although the intention was to identify areas of significant cultural and environmental importance and exclude them from the map of eligible blocks. This work, Boadita-Cormican argued, met the minister’s obligations.

In its submission to this process, the local iwi Ngāruahine expressed “serious concerns” about the environmental and climate effects of fossil fuel extraction.

But it was a larger issue that Fox didn’t need to consider, Boadita-Cormican told the court.

The oil and gas permits granted allow holders to explore for fossil fuels in Taranaki until 2031.

Andy Jackson / Stuff

The oil and gas permits granted allow holders to explore for fossil fuels in Taranaki until 2031.

In addition to his conclusions on Articles 25 and 29, Cooke found that climate change “may become” relevant to a proper consideration of the Treaty.

“If the Maori whose traditional lands are subject to the decision object to the granting of the permit because of a concern about climate change, this should be dealt with by the decision-maker… This would not, however, impose a particular outcome,” the judgment said. said.

“The potential wider impacts of climate change on Māori and the potential effects of measures taken to limit the effects of climate change involve balancing considerations that have been addressed by other means and by other processes. The decision maker [Fox]…was not required to readdress them.

Based on this, Cooke was satisfied that Fox’s decision to grant the permits was “legally made” and dismissed the case.

After the work done by Students for Climate Solutions – “late nights, panicked phone calls” – the result was very disappointing, said member Lachlan Craig. The members had received “hate online” as a result of the affair, he added.

“We really went out of our way to do this stuff.”

Craig believed the law failed if the biggest problem humanity had ever faced could be ignored in permitting decisions.

As part of the judicial review process, judgments can be appealed. Personally, Craig was open to the idea. However, the group had to assess its time and funds before making a decision, he said.

Minister Woods’ office declined to comment.