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TARANAKI ENERGY WATCH INCORPORATED Appellant

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TARANAKI ENERGY WATCH INCORPORATED Appellant IN THE ENVIRONMENT COURT ENV-2019-WELLINGTON- AT WELLINGTON IN THE MATTER OF of the Resource Management Act 1991 AND IN THE MATTER OF an appeal to the Environment Court under clause 14(1) of the First Schedule of the Act to the Proposed Taranaki Regional Coastal Plan BETWEEN TARANAKI ENERGY WATCH INCORPORATED Appellant AND TARANAKI REGIONAL COUNCIL Respondent NOTICE OF APPEAL ON BEHALF OF TARANAKI ENERGY WATCH INCORPORATED Dated 18 November 2019 Rob Enright/Ruby Haazen Magdalene Chambers Tāmaki Makaurau & Wānaka E: [email protected] M: +64 21 276 5787 Auckland offices: Generator, Level 1, 28 Customs St, Auckland To: The Registrar Environment Court WELLINGTON INTRODUCTION 1. Taranaki Energy Watch Incorporated (Energy Watch) appeals against parts of the decisions of the Taranaki Regional Council (Council) on the Proposed Taranaki Regional Council Coastal Plan (Proposed Plan). 2. Energy Watch made a submission and a further submission on the Proposed Plan. 3. Energy Watch is not a trade competitor for the purposes of section 308D of the Resource Management Act 1991 (RMA). 4. Energy Watch received notice of the decisions on 5 October 2019. 5. The decision was made by the Respondent. 6. The parts of the decision that this appeal relates to are Rules 27, 29 and 31. REASONS FOR APPEAL General Reasons 7. Energy Watch says that the proposed plan fails: (a) to address part 2 RMA by inadequately addressing the adverse effects of the oil and gas industry within the coastal marine area. Notably the plan: i. Does not promote sustainable management of natural and physical resources under s5 RMA. 2 ii. Does not adequately recognise and provide for matters of national importance under s6 RMA, in particular s6(a), s6(b), s6 (c), s6 (f) and s6 (h). iii. Does not have adequate regard to the matters in s7 RMA, in particular s7(c), s7(d) s7(f) and s7(i). (b) Represents a failure of the Respondent to fulfil its functions under s31 (b)(iii) RMA; the maintenance of indigenous biological diversity. (c) Does not give effect to the New Zealand Coastal Policy Statement in particular; i. The precautionary principle in Policy 3; ii. Policy 6(1)(j): where appropriate, buffer areas and sites of significant indigenous biological diversity, or historic heritage value; iii. Policy 11 (a) and (b); iv. Policy 13 and 15 natural character and landscape; and v. Policy 23 discharge of contaminants. (d) Does not give effect to objectives and policies of the Taranaki Regional Policy Statement, section 8: Coastal Environment. (e) Does not provide a rule framework which gives effect to the policies and objectives of the Proposed Plan, notable policies: 1, 3, 5, 9, 10, 15, 16, 18, 21, 23 and 24. (f) Does not represent best resource management practise. 3 PARTICULAR REASONS FOR APPEAL 8. Petroleum facilities create risk both potential and actual. These risks must be adequately managed in accordance with sensitivity of the environment in which they operate. The proposed plan includes rules which: (a) inadequately manage the risk of oil and gas activities in relation to the sensitivity of the receiving environment; and (b) do not reflect avoidance policies in the Proposed Plan, Regional Policy Statement and NZCPS for sites of outstanding values indigenous biodiversity, heritage and other values. 9. Effects from oil and gas exploration and production activities include: sediment, noise and light pollution, risk of toxicity caused by flaring, fugitive emissions, discharges and worst case scenarios such as well- blowouts, oil spills or loss of control of wellheads. 10. Both exploration and production activities are equally as risky in different ways with some reports finding that exploration activities create a greater risk from loss of control1. Both exploration and production should be at minimum a discretionary activity. 11. Risk criteria should be applied to all oil and gas exploration and production applications to address such effects. Risk criteria must address both probability and consequence. 12. The Regional Council has the responsibility to grant consent for an activity to be located in a particular site. Other regulations relating to safety and operation of a facility come into force only after a resource consent is granted. Therefore, the suitability of the location in relation to other activities and the environment is the responsibility of Regional Council. 1 http://www.transport.govt.nz/assets/Uploads/Sea/Documents/Invitation-to-comment-draft-marine- Protection-Rules-Part-102-certificates-of-insurance-amendment.pdf 4 13. Applying spatial management and utilising methods such as separation distances means adequate management can be achieved whereby areas of heightened sensitivity, areas of high values (including biological, habitat, natural character and features and landscapes etc…) are avoided or effects are adequately mitigated. 14. The reasons for the appeal and the relief sought from the Court are set out in detail below. Amendments sought by Energy Watch are underlined or struck through. Rule 27 15. Rule 27 allows for drilling of exploration or appraisal wells by an offshore installation or drilling ship as a controlled activity in the Open Coast and Port Areas. Energy Watch consider that controlled status is inappropriate and discretionary status should apply. 16. Controlled status fails to: (a) Allow for adequate public input. Matters of control listed are extensive demonstrating the complexity in decision making and varied interests affected by such oil and gas exploration activities (including effects to public access which can be only be assessed by public input). In these circumstances exclusion of the public input is contrary to principles of participation in the RMA. (b) Adequately address the extent and type of effects from drilling of exploration and appraisal wells that are more than minor: i. within the open space and port areas (including to schedule 4, 4B, 5, 6B, 7 and 8 sites and values); and ii. effects which may be felt in outstanding value and significant indigenous biota. 5 (c) The Proposed Plan recognises that not all characteristics and values are not known2 and therefore any proposed location could be in an area of unknown value. (d) Buffer zones/separation distances should be applied in appropriate cases to avoid cross boundary effects to areas of high or outstanding value and significant indigenous biota. (e) Risk criteria should be applied to assess effects from worst case scenarios such as loss of control of a well head and an oil spill in relation to the values and characteristics of the receiving environment and proximity to areas of high sensitivity. Discretionary activity status allows for such criteria to be applied and assessed on a case by case basis. Relief Sought 17. Delete Rule 27. Rule 29 and Rule 31 18. Energy Watch opposes: (i) The Non-Complying activity status of Rule 29 Drilling of an exploration or appraisal well in the Coastal Management Area of Outstanding Value. 3 (ii) The Non-Complying activity status of Rule 31 Placement or erection of petroleum production installation in the Coastal Management Area of Outstanding Value.4 2 Introduction to Schedule 6B sites of significance to Maori are still being developed. A number of new oustanding areas have been added in this version of the plan indicating that recognised areas of oustanding value change from plan to plan. 3 https://www.trc.govt.nz/assets/Documents/Plans-policies/CoastalPlan2019/PCPOct2019-clean-web.pdf at p.73. 4 https://www.trc.govt.nz/assets/Documents/Plans-policies/CoastalPlan2019/PCPOct2019-clean-web.pdf at p.75. 6 19. Prohibited status reflects policy imperatives in the Proposed Regional Coastal Plan, NZCPS and Part 2 RMA of avoiding effects to areas with outstanding values and/or significant indigenous biodiversity. 20. Coastal areas of outstanding value are afforded the highest level of protection in the Policies in the Proposed Plan (including policies 9, 15, 16, 18) but this does not follow through to the rules in the plan. Non-complying activity status anticipates that in some circumstances the activity may be appropriate. Exploration and Production activities creates effects that are more than minor and contrary to the policies and objectives of the plan. Non-complying is therefore not appropriate in any circumstance. 21. Section 8, method 2 of the Taranaki Regional Policy Statement specifically identifies prohibited status as an appropriate method in the coastal marine area to apply in areas of (a) outstanding coastal value. Applying prohibitive status gives effect to the Taranaki Regional Policy Statement. 22. Given the risk associated with oil and gas activities from a worst-case scenario, it is appropriate that a precautionary approach be adopted. Prohibited activity is appropriate in circumstances where the Council takes a precautionary approach due to insufficient information about an activity to determine what provision should be made for the activity in the local authority’s plan5. This aligns with the NZCPS and King Salmon principles6. Relief Sought (i) Prohibited status applies to exploration or appraisal well in the Coastal Management Area of Outstanding Value Rule 29. 5 Coromandel Watchdog of hauraki Inc. v Chief Executive of the Ministry of Economic Development [2008] 1 NZLR 562. 6 EDS v King Salmon [2014] NZSC 38 at [96]. 7 (iii) Prohibited status applies to Placement or erection of petroleum production installation in the Coastal Management Area of Outstanding Value Rule 31. Relief for Rule 28, 29, 30 and 31 23. Taranaki Energy Watch seek that a requirement for a risk assessment looking at probability and consequence of worst-case event of well- blow out, loss of control and/or oil spill be included in the “Standard/Terms/Conditions” column of the activity table for Rules 28, 29, 30 and 31. ATTACHMENTS 24. Energy Watch attach the following documents to this notice: (a) Copy of TEWs submission and further submission; (b) Copy of relevant Council Decisions on submissions; (c) Schedule of names and addresses of persons to be served.
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