ECan’s appeal of the ALIL consent case
Tom Ackroyd, Aerial view of the Ashburton River North Branch, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons.
Environment Canterbury (ECan) and ALIL are appealing ELI's recent High Court win which overturned the granting of a major pollution discharge consent to Ashburton Lyndhurst Irrigation Limited (ALIL) (an irrigation scheme operating between the Rakaia and Hakatere Rivers).
ECan have also signalled that they intend to approach the government to change the RMA because the High Court decision challenges their longstanding approach to freshwater management.
"We are disappointed that ECan is appealing this clear High Court judgment. Canterbury has a major nitrogen pollution problem and ECan will not fix it by allowing the pollution to continue. By both appealing and seeking to change the law in favour of big polluters, ECan is continuing to bury its head in the sand" said Matt Hall, Director, Research and Legal at ELI.
“ECan has emphasised its gradual approach to water management and addressing environmental impact. However, on the Council’s own information, the ALIL consent would only result in very small estimated reduction in nitrogen concentration (2 percent) by the end of the consent. With this approach, ECan is kicking the can down the road on freshwater pollution.” said Hall.
ECan is also wrong on its interpretation of the law.
"The RMA has generally prohibited discharge consents likely to give rise to significant adverse effects on aquatic life since 1991. This law pre-dates the National Policy Statement for Freshwater Management (NPSFM) by decades and is higher than the NPSFM in the planning hierarchy. For ECan to admit that avoiding significant adverse effects ‘is difficult to achieve’ is an admission that the Council has allowed and continues to allow such effects to occur. This is contrary to the purpose of the RMA and the duty in s17 to avoid, remedy, mitigate adverse effects.’ added Hall.
Thousands of discharge consents around the country will have been assessed according to these requirements.
The RMA has also clearly required integrated management, where coastal policy needs to be considered when there are effects on the coast. The High Court found that ECan didn’t properly consider coastal policy, including the NZ Coastal Policy Statement (NZCPS) and the Regional Coastal Environment Plan (RCEP), despite the pollution resulting from the consent affecting the coast. Some of these policies require adverse effects on certain species and environments to be avoided altogether.