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

About the author

Bret Birdsong is a Professor of Law at the University of Nevada, Las Vegas. His research and teaching focuses on federal public natural resources law, water law, and food law. Previously, he was an attorney with the United States Department of Justice, Environment and Natural Resources Division, where he handled an array of environmental and natural resources cases on behalf of the United States government. He holds an AB from Princeton University and a JD from University of California, Hastings College of the Law.

During Bret’s Ian Axford Fellowship exchange to New Zealand he was based at the the Office of Parliamentary Commissioner for the Environment in Wellington, where he reasearched the role of New Zealand’s Environment Court in the development of the law of sustainability under the Resource Management Act.

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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.

Table of contents

Preface

1. Introduction
2. An Overview of the Resource Management Act
3. The Structure of Environment Court Litigation under the RMA
4. The Substance of Sustainability: Environment Court Treatment of Fundamental RMA themes
5. Some thoughts on Environmental Adjudication in New Zealand

Acknowledgement

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