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Resource Consents but Their Submissions Are Optional for the Local Authority Or Consent Decision-Maker to Follow

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Resource Consents but Their Submissions Are Optional for the Local Authority Or Consent Decision-Maker to Follow SYMONE KRIMOWA OBSTACLES AND OBLIGATIONS: WIND ENERGY AND MIGRATORY BIRD PROTECTION IN NEW ZEALAND DISSERTATION LAWS 592 FACULTY OF LAW 2011 ii Table of Contents Abstract.............................................. ................................................................................ iii I INTRODUCTION .............................................................................................................. 1 II ECOLOGICAL IMPACT OF WIND FARMS ON MIGRATORY BIRDS .................... 3 A Indirect Impacts: Disturbance Leading to Displacement ................................................. 4 B Direct Impacts .................................................................................................................... 4 C Pre-Construction and Post-Construction Monitoring ...................................................... 8 D Mitigation of Impacts ......................................................................................................... 9 E Offshore Wind Farms ........................................................................................................ 9 III INTERNATIONAL PROTECTION OF MIGRATORY BIRDS .................................. 10 A Convention on Migratory Species.................................................................................... 10 B Convention on Biological Diversity ................................................................................. 13 C Ramsar Convention ......................................................................................................... 16 D Environmental Impact Assessment under International Law ........................................ 18 IV NEW ZEALAND’S PROTECTION OF MIGRATORY BIRDS ................................... 22 A Resource Management Act 1991...................................................................................... 22 B Wildlife Act ...................................................................................................................... 40 C Policy Statements and Plans ............................................................................................ 41 D The Precautionary Approach .......................................................................................... 44 V COMPARATIVE LAW: MIGRATORY BIRD PROTECTION ABROAD ................. 45 A Migratory Bird Protection in the United States of America ........................................... 45 B Migratory Bird Protection in the United Kingdom......................................................... 55 C Council of Europe ............................................................................................................ 56 D European Union ............................................................................................................... 61 VI ASSESSMENT AND COMPARISON ............................................................................ 70 A Summary of Key International Obligations and National Legislation ........................... 70 B Inadequate identification of effects on migratory birds .................................................. 71 C Inadequate Standard for Consent: Balancing Factors.................................................... 75 D Application of Comparative Law .................................................................................... 76 VII CONCLUSION ................................................................................................................ 79 Bibliography............................................. .......................................................................... 80 iii Abstract.............................................. Wind farms create unique risks to birds because of the danger of the turbine blades, which can be up to 150 meters tall. Placement of wind farms in the wrong areas can have a detrimental impact on bird species. New Zealand’s commitment to renewable energy is shared with its obligations to protect biodiversity, which are reflected in the ratification of international conventions such as the Convention on Migratory Species and the Biodiversity Convention. Domestic legislation, such as the Resource Management Act 1991, seeks to enhance the development of alternative sources of energy with the intention of reducing the effects of climate change on the environment and conserving indigenous biodiversity. Migratory bird protection in the wind farm context in New Zealand relies upon environmental impact assessment under Schedule 4 of the Resource Management Act 1991. International obligations include protecting or endeavouring to protect 37 migratory bird species along their complete flight paths. The Resource Management Act 1991 does not meet international obligations to protect migratory birds in the wind farm consent process because (1) the assessment of environmental effects process fails to adequately identify effects on migratory birds; and (2) even if the assessment of environmental effects process adequately identifies effects on migratory birds, the RMA fails to give priority weight to effects on birds when it balances those effects with other factors in deciding to approve the wind farm application. Other countries provide guidance on the next steps for New Zealand to take to comply with its international obligations to migratory birds. iv Word length The text of this paper (excluding abstract, table of contents, footnotes, bibliography and appendices) comprises approximately 33,000 words. Subjects and Topics Environmental law Resource Management Act 1991 Renewable energy 1 I INTRODUCTION Wind power in New Zealand is quickly gaining momentum as the search for environmentally friendly energy sources are pursued. Wind energy is an alternative energy source that generates little or no pollution and it does not emit greenhouse gases into the atmosphere. It is the world’s most rapidly growing source of energy.1 New Zealand is one of the best countries in the world for the production of wind energy because of its consistently high wind speeds throughout the year.2 As a result, wind farms are expected to supply 20 per cent of New Zealand’s electricity by 2030.3 New Zealand has twelve operating wind farms and there are at least 23 more wind farms in the planning stages.4 Wind farms create unique risks to birds because of the danger of the turbine blades, which can be up to 150 meters tall. Placement of wind farms in the wrong areas can have a detrimental impact on bird species. The most widely known example is the Altamont Pass Wind Farm in California which results in a high number of collision fatalities per year because of its placement in the flight path of raptors. Migratory birds are especially at risk to the effects of poor wind turbine placement because of the likelihood they may be overlooked in the assessment process due to their seasonal variation of presence, variation in flight altitude, and the under-evaluation of the effects on migratory bird populations. New Zealand’s commitment to renewable energy is shared with its obligations to protect biodiversity, which are reflected in the ratification of international conventions such as the Convention on Migratory Species and the Biodiversity Convention. Domestic legislation, such as the Resource Management Act 1991, seeks to enhance the development of alternative sources of energy with the intention of reducing the effects of climate change on the environment and conserving indigenous biodiversity. Placement of turbines in areas where migratory birds may be harmed is detrimental to the wind industry. The reputation and growth of wind as a renewable energy source is hindered by the negative impacts of some wind farms, such as Altamont Pass. Yet it is necessary to consider the beneficial effects of renewable energy on mitigating the effects of climate change on migratory birds. Therefore, it is important to have procedures in place that prevent harm to migratory birds from wind farms. The primary method that is used to implement migratory bird protection in New Zealand is environmental impact assessment under the Resource Management Act 1991. The purpose of this paper is to determine if there are adequate mechanisms of protection in place for migratory birds in New Zealand’s wind farm consent process. Firstly, New 1 MB Lilley and Jeremy Firestone “Wind Power, Wildlife, and the Migratory Bird Treaty Act: A Way Forward” (2008) 38 Envtl L 1167 at 1169. 2 Mark Ashby Winds Up: Planning the Future Now (Connel Wagner, Wellington, 2004) at 9. 3 Ministry of Economic Development “New Zealand Energy Quarterly: Issue 12” (press release, 15 December 2010). 4 “NZ Wind Farms” (2011) New Zealand Wind Energy Association <www.windenergy.org.nz>. 2 Zealand’s international obligations to migratory birds will be evaluated. Then, an analysis is made of how New Zealand actually protects migratory birds in the wind farm context. An argument is next presented to show that New Zealand’s migratory bird protection measures are inadequate to meet international obligations. A comparison with other countries is then used to illustrate ways New Zealand could meet its obligations. 3 II ECOLOGICAL IMPACT OF WIND FARMS ON MIGRATORY BIRDS Wind energy is known as an effective method for creating environmentally friendly electricity but it can also create risks to avian wildlife. Most wind farms do not cause harm to migratory birds. However, wind farms that have been placed in migratory flight paths have caused significant impacts to migrants. The location of the wind farm is
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