Tuesday, December 17, 2019

Judicially review the OMV decision

Today the Environmental Protection Authority granted consent to Austrian oil-giant OMV to drill for oil and gas in the Great South Basin. Its a decision which makes no sense, given our need to reduce emissions: we can't burn the oil and gas we already have and stay within the planet's carbon budget, so there's simply no point looking for more. But the EPA was statutorily forbidden from considering that, so they just rubberstamped it instead.

Which may have been a mistake. Because while the EPA was considering the application, Parliament passed the Zero Carbon Act. Which included a clause allowing any decision making body to take the climate change targets, budgets, and reduction plans into account in any decision. The EPA didn't do that, and they weren't required to in terms of the Act. But given the subject matter of the application, it may have been irrational for them not to do so. Because pretty obviously, if they find oil or gas, its going to pose problems for meeting our 2050 target (sadly, there's no emissions budgets or reduction plan in place yet, but it'd obviously pose a problem for them too).

What about the statutory ban on considering climate change? Well, it only forbids the EPA from considering "the effects on climate change of discharging greenhouse gases into the air". Effects on targets, budgets and reduction plans are different from that, so s5ZN CCRA consideration is not barred by s59(5)(b) of the EEZ Act.

In other words, judicial review is on the table. It would be weak, without budgets and reduction plans, and isn't the ideal test case. There will be later opportunities - for example, if they find oil, then they will need a resource consent for any extraction operation, and there should be a budget and reduction plan in place by then as well. But Parliament deliberately modified this clause to "allow the common law to develop" - that is, to encourage challenges. It might be worth doing it, simply to get a ruling on the interaction of s5ZV and the EEZ Act and RMA bans on climate change consideration, and to see the circumstances where the courts believe decision makers should consider climate change issues.