Greenpeace's Anadarko challenge fails on technical grounds

The Greenpeace sponsored yacht SV Vega at the Anadarko drill site, over 100 nautical miles off the west coast of NZ.

The High Court has brushed aside a Greenpeace challenge to the way the Environmental Protection Authority treated Texan oil company Anadarko's application to drill exploration wells in deep water off Taranaki and South Canterbury.

But Justice Alan Mackenzie describes the decision as being made on narrow grounds. Anadarko would have faced greater public and regulatory scrutiny but for the fact that it gained its drilling consents under a transitional regime applying to deep-sea drilling, which expires next June.

Delivered this afternoon, the judgment draws on precedents in which decisions of environmental regulators were expected by law to be no more than "wholly administrative in nature" and "essentially mechanical".

Such decisions were "not readily susceptible to the sort of error which may justify judicial review," the judge said.

EPA chief executive Rob Forlong welcomed the result, the first such challenge to decision-making under a new legal regime relating to economic activity in New Zealand's vast Exclusive Economic Zone, which extends out to 200 kilometres from shore and the limits of the country's undersea continental shelf. Activity in the EEZ has previously been unregulated.

"Under the transitional provisions applying in this instance, our role is to ensure industry meets its obligation to provide information in accordance with the legal requirements," said Forlong. "The EPA was satisfied that Anadarko provided sufficient information in its impact assessment on the measures that it intended to take to avoid, remedy or mitigate any adverse effects on the environment."

When the transitional regulatory regime expires after June 28 next year, such applications will require a full marine resource consent process.

"This will enable the EPA to take into account information from other sources, and consider the nature and effect of the roles of other regulators in deciding whether to allow activities such as oil exploration and production to take place. In doing this the EPA will base its decisions on the best available information," said Forlong.

A key issue for the court was whether the EPA had taken sufficient account of a discharge management plan for dealing with a catastrophic oil spill from an exploration well - an extremely unlikely event.

Justice Mackenzie found that, under the transitional EEZ regime, the EPA's job is "essentially administrative." The EPA could reject an environmental impact assessment and associated application documents on the grounds that it was incomplete.

But its role "does not involve any assessment of the merits of the content of the impact assessment."

"Its role is limited to assessing whether the application contains information about the required matters," said Justice Mackenzie. "The purpose of that preliminary evaluation of the content is to ensure that when (in a case when the Act is fully operational), the next stage of public notification and consideration of the application by EPA is reached, the public and EPA will have sufficient information to ensure meaningful participation in the hearing and evaluation processes."

The judgment also outlines how engineering firm SKM recommended to the EPA twice against the plan's acceptance as complete. The EPA accepted that advice on the first occasion, in July, but determined on the second occasion, in September, that the information provided was complete and met its legislative requirements.

Among Greenpeace's claims was that the EPA should both have vetted and published the whole of the oil spill "discharge management plan" submitted to Maritime New Zealand, the government agency with responsibility for cleaning up major oil spills.

However, Justice Mackenzie found that it would be "a triumph of form over substance to direct that the impact assessment be resubmitted in a form which duplicates the material which has been supplied to Maritime NZ in the discharge management plan."

"Because the case is within the transitional provisions and will not proceed to a consent application, the duplication of the annexes is not necessary to ensure that persons who may become part of the consent process have the necessary material available to them," the judgment says.

The EPA published Anadarko's 150 page environmental impact assessment along with title pages for the oil spill management plans, on its website, but none of its detail.
Maritime NZ released that detail, running to several hundred pages, late last week, after receiving numerous requests for it under the Official Information Act.