Showing posts with label coal. Show all posts
Showing posts with label coal. Show all posts

25 September 2012

Pro-coal Minister of Everything Steven Joyce goes feral; attempts to influence the Environment Court and the Court of Appeal

Today I was absolutely gobsmacked by a statement by Steven Joyce, the Minister of Economic Development, in an official New Zealand Government press release.

Joyce explicitly took the side of and promoted the cause of Aussie coal miners, Bathhurst Resources, in two up-coming court cases.

Joyce said:

"The Escarpment Mine is an open cast mining project that is ready to go and would provide 225 jobs and incomes for workers and their families on the West Coast straight away. The developer is being held up from opening the Escarpment Mine by on-going litigation that has gone through the Environment Court, the High Court and the Court of Appeal. These on-going objections are to resource consents which were granted more than a year ago. The whole consenting process for this development has now taken a staggering seven years. I call on those objectors to the mine to reconsider their appeals and consider the economic future of the West Coast and its people."

I know Joyce is very pro-development, Joyce even has his own archive of posts on Hot Topic, where Joyce's preference for fossil fuel developments is obvious.

But this time he has crossed a line. Joyce is using his position as a Minister of the Crown to explicitly influence decisions yet to be made by the Environment Court and the Court of Appeal on the resource consents sought by Bathurst.

Joyce is breaching the Sub judice rule.

Let me back up and start at the beginning. The resource consents for the Escarpment mine proposal were applied for in August 2010. Not seven years earlier as alleged by Joyce. Bathurst took over the project from L and M Coal Ltd.

As Hot Topic noted, in August 2011, the hearing commissioners acting for the regional and district council considered with some anguish that resource consents could be approved. This was in spite of the many adverse effects on native species habitat, water quality and the coal-measure limestone landforms within the Mt Rochfort Conservation Area. It was also after the commissioners refused to factor in climate change effects from the eventual release of carbon dioxide from the coal. In other words, it was a pretty marginal decision.

However, the resource consents are not legally granted, as Forest and Bird and the West Coast Environmental Network immediately lodged appeals with the Environment Court. This is Joyce's second factual error; in an appeal of a resource consent, the council's decision ceases to exist. The Environment Court starts from a blank piece of paper, examines the facts and makes it's own decision. It considers consent appeals on a 'de novo' basis.

Then Bathurst started the cycle of litigation - by applying to the Environment Court, separately from the consent appeal, to have the effects of climate change barred from the consent appeal Bathurst succeeded. So Forest and Bird and the West Coast Environmental Network appealed that decision to the High Court.Bathurst won that appeal. However, Forest and Bird and the West Coast Environmental Network appealed the High Court decision to the Court of Appeal.

So there are two court hearings yet to happen.

1. The Environment Court is yet to decide on the facts; if the resource consents 'promote sustainable managemnent' of resources and may be granted.

2. The Court of Appeal is yet to decide on the law; whether it permits or stops the Environment Court considering the greenhouse effects of the carbon dioxide emissions from the downstream combustion of the coal.

Now Steven Joyce, a Minister within the Executive branch of Government, is expressing an opinion on what the outcome of the Court's process should be.

This is contrary to the 'sub judice' rule; which is "Don't comment on undecided Court cases". Or as set out in Parliament's Standing Order 112.

"112 Matters subject to judicial decision
(1) Matters awaiting or under adjudication in, or suppressed by an order of, any New Zealand court may not be referred to in any motion, debate, or question, including a supplementary question, subject always to the discretion of the Speaker and to the right of the House to legislate on any matter or to consider delegated legislation. (2) To enable the exercise of the Speakers discretion under paragraph (1), a member who intends to refer to such a matter must give written notice to the Speaker of this intention."

Or as set out in the Office of the Clerk of the House of Representatives document "Sub judice rule". Chapter 16 in 'Parliamentary Practice in New Zealand'. New Zealand Parliament (14 October 2010).

"The Standing Orders prohibit reference in any debate to any matters awaiting or under adjudication in a court from the time the case has been set down for trial or otherwise brought before the court, if it appears to the Speaker that there is a real and substantial danger of prejudice to the trial of the case...This is the implicit acknowledgment by the legislature that the proper forum in which to resolve legal disputes is the courts and that the legislature, above all other institutions, should take extreme care not to undermine confidence in the judicial resolution of disputes by intruding its views in individual cases...The House's sub judice rule takes effect in criminal cases from the moment a charge is made and in other cases from the time proceedings are initiated by filing the appropriate document in the registry or office of the court. The restraint ceases when the verdict and sentence are announced or when judgment is given. If notice of appeal is given, the restraint reapplies from the time of the notice until the appeal has been decided."

Or as set out by the Speaker, Margaret Wilson, on 16 October 2007, in "Speaker's Rulings Sub Judice Rule Operation.

"It seems to me that it is important in any consideration of it to emphasise the high constitutional nature of the rule. It stands as an expression of the relationship between the different branches of government; the legislative branch and the judicial branch. This House determines what the law should be, but it is for the courts to determine in each particular case how the law is to be applied. In criminal matters, it is not for this House to decide guilt or innocence. That is a matter for a court of law. Standing Order 112 defines quite precisely when this constitutional principle is engaged."

Obviously, Joyce and the rest of National just don't give a stuff about anything of a high constitutional nature or the rule of law, or Joyce driving his Bagger 2000 coal excavator through the sub judice rule. Clearly such things are just the concerns of those pesky people who obstruct progress when government tries to remove roadblocks in the way of business development.

Even not-so-bright Minister of Energy Phil Heatley knew better than to comment on the Environment Court case when he was asked about it on a Q and A interview.

"Phil. Well, you appreciate, Shane, this is before the courts. I'm a bit limited about how much I can discuss this. But the reality is Denniston, like any other application, has to go through a process, and there is a balance between the economic benefits and the- what impact it'll have on the environment."

Kevin Hackwell of Forest and Bird has responded promptly to Joyce's call and raised the issue of how independent other decision making may be, such as the decision to grant access for mining on the Mt Rochfort conservation area, which is also yet to be made by the Minister of Conservation, Kate Wilkinson.

"There would be a serious question, given his public advocacy, about whether such a decision has been influenced by government policy."

That's an important point. Especially since the Government wants to make stop the Minister of Conservation deciding mine access to conservation areas on the basis of conservation purposes. The Government has just introduced amendments to the Crown Minerals Act which add the Minister of Energy as joint decision-maker and add economic matters to the mandatory conservation purposes the Minister of Conservation must consider.

We will have to see how this 'sub judice' breach plays out for Joyce, given his party and Prime Minister have no problem with John Banks and his unknowingly non-anonymous donations.

I could not think of a better reason to reject having a joint Energy/Conservation Ministers and joint economics/conservation goals decision over mines on conservation land than Steven Joyce's attempted interference in the Environment Court and the Court of Appeal cases concerning the Escarpment mine.

Solid Energy and the declining price of coal; neither unforeseen or dramatic or a crash

On Monday Don Elder the Chief Executive of New Zealand's Solid Energy confirmed that a major restructuring of the NZ coal miner would require closure of the Spring Creek underground mine and the loss of 460 jobs over the company.

This move had been signaled in advance, but it is still making most news broadcasts today. Elder attributes the need to downsize to trends in international coal prices. For example Elder told Radio New Zealand;

an unforeseen, and dramatic, global price crash had rocked the industry.
"In the second week of July the markets tanked, demand fell through the floor," he said. In up to six weeks the price plummeted 40 to 50 percent and did not show any sign of bouncing back anytime soon."
The new chair of the board of directors, Mark Ford, said in a press release;
“The price for Spring Creek’s semi-soft coking coal would need to be somewhere from NZ$180-200 a tonne for the operation to deliver a profit and pay off the investment made in it,” Mr Ford said. “International semi-soft contracts are now being made at around NZ$120 a tonne.”

New Zealand PM John Key seems to have accepted the Elder view that prices are to blame.

"The issue isn't that we're not on their side, the issue is that international coal prices aren't on their side."

"In the case of Solid Energy it's a victim of falling commodity prices."

The NZ media seem to have uncritically accepted the price explanation. In one story, Fairfax reported the reason for the mine closure and job losses as being due to a severe downturn in global coal prices

Not so, "Chalkie", of the Fairfax NZ business section. "Chalkie" took Solid Energy to task for blaming their troubles entirely on the international coal price. Chalkie also satirised Elder's cornucopian Think Big style lignite and coal-gas proposals.

Chalkie says he doesn't believe Elder has credibility when he says current coal prices in NZ$ are 20% lower than at the bottom of the 2008 global financial crisis. Chalkie points out that Elder's quoting of a coal price of $330 USD per tonne, as the top of the price mountain that the price has now fallen off, is just unrealistic.

In June 2011, a record price of $US330 a tonne for Australian hard coking coal, was reached because of supply shortages following the January 2011 Queensland floods which drowned most of Queensland's coal mines.

Chalkie also notes that a coking coal price of $USD126 a tonne is still well above the norm before the GFC. I have complied some prices for Australian hard coking coal. Data at Google Docs. Coking or metallurgical coal is used in steel making, and usually trades at a premium price above 'thermal' coal supplied to power stations. I prepared a chart of prices per tonne in $USD from 2006 to 2012. Spring Creek Mine coal is 'semi-soft' coking coal, which I think means its price is not quite the same as coking coal, but still more than thermal coal.

The post Queensland flood price of $USD330 a tonne sticks out as a spike or outlier as does the 2008 high of $USD250 tonne, which also followed a La Nina mine flooding event. Coal producers might not want to know about global warming, but global warming certainly knows about Queensland's coal mines.

And here is a chart of 2012 monthly hard coking prices in $USD. The data.

The price for Aussie had coking coal has fallen consistently in 2012. However,there is no cliff the price has fallen off in July 2012. The hard coking coal price did not plummet 40 to 50 percent in 6 weeks as Dr Elder says. The price trend is neither "unforeseen" nor "dramatic" and nor is it a "crash".

It's not hard to find reasons for the decline in the price. of coal. Reuters reports a number of reasons. Demand for coal is down in China. While the floods stopped the Aussie supply, steel makers looked to substitute other suppliers. Mongolia is increasingly eating into Australia's share of coal exports to China.

Chalkie also notes that the Huntly East underground mine has had some safety issues. Work to install a $NZ40 million ventilation tunnel, the sort of thing Dr Elder criticised Pike River Coal for not having, stopped in August 2012. Could it be that Solid Energy is using the international coal price as an excuse to avoid spending the money needed to make its underground mines as safe as the public now expect in a post-Pike River Coal disaster world?

Chalkie also notes a "field of dreams" approach to the Taupo wood pellet plant, (later written down in value by $NZ30 million) and delays in the Mataura lignite briquette plant. Given the execution of these smaller projects, Chalkie questions Solid Energy's ability to deliver on the grander lignite conversion plans.

I will leave the last word to Chalkie.

Every day at 8.30am sharp, management at Solid Energy would gather for morning prayers at the company shrine.
The small room was dominated by a huge gleaming slab of coking coal, etched with phrases from an early foreign exchange hedge contract. The dozens of executives stood facing it, arms by their sides, palms turned towards the slab in unison.
It was always a brief, uplifting affair. The CEO would begin with a chant: "Every day in every way, we expect coal prices to rise."
The executives would respond: "And rise they shall."
CEO: "With wood pellets and lignite we will rule."
Response: "Nothing bad will happen."
CEO: "Our big ideas are worth squillions."
Response: "Yes, probably more."
CEO: "Gentlemen, make it so."
And with that they would shuffle out shiny-cheeked into the morn
.

28 August 2012

Neil Armstrong coal mines carbon dioxide and global warming the High Court moon walks us to a very hot place

On the same day as the death of Neil Armstrong, the first astronaut to step onto the Moon, became public, the New Zealand High Court moon-walked its way to it's own off-the-world moment. It decided that greenhouse gas emissions and global warming are off-limits in the planning for an open cast coal mine. That's as just as 'out of this world' as denying that the Moon landings ever happened.

On Saturday, two bits of news struck home to me very strongly. The first was the death of moon-landing astronaut Neil Armstrong. The second was the decision of the New Zealand High Court that for new open-cast coal mines, their carbon dioxide emissions and global warming are legally and jurisdictionally unrelated in the Resource Management Act.

The moon landing. I remember very well as a seven year old listening attentively to the 'one small step' broadcast in 1969. The whole class was silent under the spell of our teacher's scratchy transistor radio.

It's one of my most strongly held memories of my childhood. I guess that reflects well on that class of seven-year olds. They stopped playing bullrush, sniffing with colds, and fighting over play-lunchs to listen attentively to the unfolding of one of humanity's most historic moments.

While I was still fondly remembering the Moon landing, the next news item struck.

It was the New Zealand High Court decision barring discussion of carbon dioxide emissions when coal mines seek Resource Management Act consents (see Radio NZ, NBR and TV3 and the Otago Daily Times).

Of course this is about the Perth coal company Bathurst Resources and their Escarpment Mine Project.

Bryan Walker of Hot Topic has posted that this project represents New Zealand doing a Pontius Pilate and washing its hands of the emissions.

I have previously posted that the decisions by councils and the Environment Court to date reflect the zombie ETS infecting the Resource Management Act with climate madness.

My Saturday morning reverie of the Moon landing was rudely stopped and I sort of grumbled to myself;

"Open-cast coal mines and global warming are unrelated!! Thats about as sensible as saying the Moon landings were faked by NASA. Neil Armstrong would just have smacked someone in the face!"

From small half-asleep reactions, blog posts do grow. With the wee footnote that it was actually Buzz Aldrin who punched the Moon landing denier.

I could do a review of the legal issues, but that would be just more legal-climate yadda yadda. I will just note that back in the early 1990s, the Bolger National Government not only considered that greenhouse gas emissions were an adverse effect under the Resource Management Act; they also considered the RMA to be one of the main tools to deal with global warming.

As for the science of it, I will just point to a couple James Hansen charts from his The Case for Young People paper.

The first is cumulative emissions of carbon dioxide. Approving new coal mines adds to cumulative global emissions of carbon dioxide. The second chart shows likely scenarios for temperature. The more carbon dioxide accumulates, the higher the likely temperature.

The facts are that each time a new coal mine is approved, we are just adding to the temperature overshoot above two degrees.

Why is it that the High Court can't apply this simple logic? Why are we even in a position where the High Court can sever the undeniable link between new coal mines, the volumes of carbon dioxide accumulating globally, and the inevitable temperature rise? What has has happened to our legal and planning systems to make this sort of decision possible?

To me this outcome - where the global effects of more GHG emissions are legally severed from approval of a new coal mine - is just as 'out of this world' as denying that the Moon landings even happened.

06 May 2012

The zombie ETS infects the RMA with climate insanity

The Environment Court won't consider James Hansen evidence on coal and climate change in the appeal against the Escarpment opencast coal mine consents

The New Zealand Emissions Trading Scheme ("NZETS") has become living-dead "zombie" legislation that infects other statutes with its own virulent climate change insanity. The example is a recent decision by the Environment Court that it can't consider climate change impacts of coal mining as described by James Hansen in the Forest and Bird appeal of the resource consents for the opencast 'Escarpment' coal mine.

The other week I saw the zombie genre film 28 Weeks Later on tv. The turning point in the film was when British actor Robert Carlyle kissed his wife and was instantly infected with the 'Rage Virus', which of course meant he had to turn into a homicidal-virus spreading-living-dead zombie who would then infect the rest of the surviving population of post-Rage Virus London. A great zombie movie movement!

For me, another much less amusing zombie moment, was last week's news from TVNZ, Radio NZ, the Otago Daily Times, and the Dominion Post, that the Environment Court had declared that climate change effects from coal mining will not be considered in Forest and Bird's appeal of the consents for the opencast coal mine the Escarpment_Mine_Project.

For background to the Escarpment Mine Project, including James Hansen's videotaped climate change evidence given to Jeanette Fitzsimons, and the conservation and biodiversity issues, see Claire Brownings Pundit post. And there is wildlife photographer Rod Morris' view that the mine proposal is simply ecological destruction on a massive scale. Botanist Alan Mark reminds us that the coal measure landscape of the Denniston Plateau is the only one left as Solid Energy have destroyed the other one - the Stockton Plateau.

According to the Dominion Post, Judge Newhook's decision was "that regulatory activity on the important topic of climate change is taken firmly away from regional government and made the subject of appropriate attention from time to time by central government by way of activity at a national level".

If we are at all unclear what that means, coal apologist and Stratera boss Chris Baker explains that this means the NZETS; "We have an emissions trading scheme, we are well ahead of our obligation internationally...".

The utter ill-logic of the "we have an ETS, more coal mining and exporting is okay" argument is that although the NZETS applies to all coal mined within New Zealand, all coal exported is exempted. Bathhurst Resources intends to export all the coal from the Escarpment Mine. So the application of the zombie NZETS to coal mining means that there will be no carbon price on the coal from the Escarpment Mine.

And this zombie effect of the NZETS in making coal "alive but dead" to a carbon price, then infects the application of our great sustainability-promoting externality-internalising Resource Management Act. The coal exports are "regulated" (in reality protected) by the NZETS. Therefore the RMA doesn't apply.

The consequence will be that the Environment Court will not be considering the effects of the Escarpment Mine on a level playing field. They will attempt to reach a broad overall judgement of what is sustainable. They will balance the economic effects of more export dollars and jobs on the West Coast against the many adverse environmental impacts on a unique coal measure ecosystem full of rare and endangered endemic species. But the scales of justice won't be fairly weighted, as the adverse impact and the externality of the greenhouse effect of the coal have already been taken off the adverse effects side of the ledger.

The NZETS is truly a ZOMBIE.

04 May 2012

The Ministry has fallen

Is the Environment Court a bulwark against emissions-intensive projects such as open-cast coal mines that will provide the coal that will exacerbate climate change? You would think it would be wouldn't you?

You would think that our great history-making sustainability-promoting Resource Management Act would give a fair shake of the stick to the idea of considering climate change as some of the possible adverse effects of a proposal.

Especially if the proposal is an opencast export-oriented coal mine on protected conservation land, where adverse effects on biodiversity and on rare natural landforms would obviously be an issue.

Apparently not.

Bathhurst Resources Limited are a relatively new coal mining company in New Zealand. Bathhurst Resources would like to construct an open cast mine on an area of 200 hectares of conservation land on the southern Denniston Plateau, on the West Coast near Westport. Bathhurst would extract and export between one and four million tonnes of coal a year. Bathhurst call it the Buller Coal Project. Wikipedia calls it the Escarpment Mine Project. The Royal Forest and Bird Protection Society calls it the wipe out of the ecology of the Denniston Plateau. Bathhurst Resources and Solid Energy have successfully made a pre-emptive strike against the appeals of the council decisions to grant resource consents to Bathhurst Resources for their proposed open cast coal mine in the Mt Rochfort Conservation Area on the West Coast's Denniston Plateau - the Escarpment Mine Project.

Bathhurst Resources and Solid Energy have successfully obtained a declaration from the Environment Court that climate change effects from the combustion of the coal cannot be considered in the appeal of the resource consents.

Dominion Post - Miner eyes fast-track option for Denniston

TVNZ Climate change ruling irresponsible

Forest and Bird - Court decision ignores serious threats of climate change

Otago Daily Times - Court will not consider climate change.

I am left wondering if the judge concerned bothered to attend one of James Hansen's talks last year.

It seems that the Environment Court is a bit like the Ministry of Magic in the Harry Potter novels. It denied that Voldemort had returned. It then weakly opposed him and then "The Ministry has fallen" under control of the Deatheaters.