Adjudicating Sustainability

New Zealand's Environment Court and the Resource Management Act

Prepared by Bret Birdsong | October 1998

With funding from the sponsors of the Ian Axford (New Zealand) Fellowships in Public Policy

Bret Birdsong is an Associate Professor of law at the University of Nevada, Las Vegas. "During my Ian Axford Fellowship, I studied the role of New Zealand's Environment Court in the development of the law of sustainability under the Resource Management Act (RMA) while placed at the Office of Parliamentary Commissioner for the Environment. Focusing on three substantive legal areas – the meaning of sustainability, the practice of effects-based management, and the promotion of public participation in environmental decisionmaking – my report offered thoughts on the unique position of the Environment Court as a specialized tribunal with powers of de novo review of local government decisions. As part of my research, I traveled the country widely, talking with resource management practitioners, lawyers, academics, and Environment Court judges about the functions and decisions of the court. Before returning home, I presented my report to the Ministry for the Environment, which was conducting a comprehensive review of the RMA and several other organizations. In the United States, I presented my report to the Environmental Law Institute and facilitated meetings between the New Zealand Parliamentary Commissioner for the Environment and the U.S. Assistant Attorney General for the Environment and Natural Resources Division. I also expect to publish an article on the Environment Court in an American law journal, focusing on lessons the U.S. courts can draw from New Zealand's system of reviewing environmental decisions. Overall, my experience as an Ian Axford Fellow has immeasurably broadened my horizons and enabled me to see things that were previously obscured."

Preface

Adjudicating Sustainability: The Environment Court and New Zealand's Resource Management Act is the final report of my Ian Axford Fellowship programme. It reflects my interest, as an environmental litigator, in the legal framework and institutions under the RMA. I chose to focus on the Environment Court for two primary reasons. First, the environment Court is an institution quite unlike any in the United States and is therefore one from which lessons might be drawn. Second, as the primary adjudicator of legal and factual issues that arise under the RMA, it is well place to guide, through its decisions, a grand tour of the RMA and its mechanisms. Although this report is more a review than a critique of the RMA and the Environment Court, I hope this report--particularly the final chapter--will provide some useful cross-national insight into the nature of environmental adjudication in New Zealand.

In the closing weeks of my fellowship programme, my choice of topics proved to be somewhat fortuitous, if not prescient. The Minister for the Environment publicly announced that he intends to pursue significant changes to the Environment Court as part of a package of amendments to improve the implementation of the RMA. Having completed a study tour of the RMA through the eyes of the Environment Court, I share some thoughts about the Minister's proposals from my customary vantage point in the trenches of American environmental litigation. These views are contained in the concluding chapter.

All the views expressed in this report reflect my own work and opinions. They do not represent the views or positions of the Ian Axford (New Zealand) Fellowship in Public Policy or its public or private sponsors, the Parliamentary Commissioner for the Environment (my New Zealand host institution), or the United States Department of Justice (my employer).

Table of contents

Preface

I. Introduction

II. An Overview of the Resource Management Act

The Old World View- Environmental Management in NZ before 1991
Emerging Global Concepts of Sustainability
The Making of the RMA and the RMLR process
The RMA Framework: Some Themes of Sustainability

Sustainable Management
Effects Based Management
Promotion of Public Participation

The RMA Framework: Institutions and Instruments

National Institutions and Instruments
Regional and Territorial Authorities and Instruments
Resource Consents
Appeals and References

III. The Structure of Environment Court Litigation under the RMA

A brief history of the Environment Court

The powers and functions of the Environment cart under the RMA

The Power to Make Declarations
The Power to Decide References and Appeals
The Power to Issue Enforcement Orders

The Nature of Environment Court Adjudication

The Structure of the Environment Court De Novo Standard of Review
The Public Law Nature of Environment Court Proceedings
Appeal from Environment Court Decisions

Summary and Conclusion

IV. The Substance of Sustainability: Environment Court Treatment of Fundamental RMA themes

Interpreting Sustainability: Defining Sustainable Management

The Priority of Part II
The Meaning of Sustainable Management

Effects Based Management

Plans as Effects Based Instruments
Resource Consents and Environmental Impact Assessment
The Duty to Avoid, Remedy, or Mitigate Adverse Effects
The Precautionary Principle and Proof of Environmental Effects

Promoting Public Participation

Standing
Notification
Awarding of Costs against Unsuccessful Litigants

V. Some thoughts on Environmental Adjudication in New Zealand

Observations on the Substantive Themes of Sustainability

The Meaning of Sustainable Management
The Meaning of Effects Based Management Promoting Public Participation

Observations on the Role of the Environment Court

De Novo Review of Environmental Decisions
The Use of a Specialist, Expert Tribunal

The Minister's Proposals for the Environment Court

The Minister's Proposed Changes
Judicial Review of Federal Action in the United States
A Hybrid Approach for New Zealand's Environment Court

Acknowledgement

Adjudicating Sustainability:

birdsongb.pdf (219k)