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Willis, Edward --- "The interpretation of environmental legislation in New Zealand" [2010] NZJlEnvLaw 6; (2010) 14 NZJEL 135

Last Updated: 30 January 2023

The Interpretation of Environmental Legislation in New Zealand

Edward Willis*

This article examines a recent Supreme Court case involving the interpretation of environmental protection provisions in the Resource Management Act 1991, Greenpeace New Zealand Inc v Genesis Power Ltd. It argues that despite seemingly straightforward resolution of the principal issue, the case highlights the difficulties of interpreting environmental statutes. This is manifest in the confused approach to interpretation applied by the majority, and highlighted by the strong dissenting judgment of the Chief Justice, which employs a more orthodox interpretative approach. The article suggests that a perceived inability to sensibly apply a purposive analysis and a desire to defer to other decision-makers on environmental issues are key factors that make almost all environmental statutes difficult to interpret judicially, and proposes that the courts openly adopt analysis of the socio-political context of environmental statutes to assist in resolving such issues. At the very least, this represents a move away from debate over interpretative approaches and makes more transparent the key substantive issues, such as the importance of environmental protection to the public.

1. INTRODUCTION

Environmental statutes are not like other statutes. Statutes concerned with environmental protection policies invariably raise difficult challenges that are not easily resolved through the application of orthodox legal analysis. While these challenges are not unique to environmental legislation, the nature of environmental law and policy means that these challenges are

*BA, LLM (Victoria University of Wellington); Barrister and Solicitor of the High Court of New Zealand.

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often exacerbated. As a result, when issues or disputes arise in the context of environmental statutes, ordinary statutory interpretation techniques may not provide satisfactory resolution.

Even the Supreme Court appears to have encountered this difficulty. In Greenpeace New Zealand Inc v Genesis Power Ltd (“Greenpeace”),¹ a majority of four Justices found that the Resource Management Act 1991 (“RMA”) prohibited a consent authority from considering the climate change effects of a proposed energy generation facility on the basis that it would generate non-renewable energy only. A cursory review of the majority judgment might suggest that the issue was straightforward: the majority felt able to resolve the issue primarily on the basis of a simple textual analysis of the relevant provision, even though this meant departing from a purposive approach to interpretation that would otherwise have been expected, and indeed that was purportedly applied. The majority judgment must, however, be read in the context of the strong dissenting judgment of the Chief Justice. Applying an orthodox purposive approach to statutory interpretation, the Chief Justice found that the effects of climate change must be considered regardless of whether the generation concerned renewable or non-renewable energy. Further, the Chief Justice appears to have reached the more intuitive result, especially for those unconcerned with the subtleties of statutory interpretation or unfamiliar with the ad hoc nature of environmental regulation;² after all, the RMA is a regime designed to manage, not ignore, the effects of climate change.³ The dissent suggests a second glance is warranted.

This article contends that the issue in Greenpeace is more complicated than an initial examination of the majority judgment might suggest. It is argued that environmental statutes such as the RMA present distinctive challenges that traditional statutory interpretation techniques cannot address without modification. Acknowledging and understanding these distinct challenges may assist in explaining the two contrasting judgments in Greenpeace, and may suggest ways in which seemingly intractable issues of interpreting environmental statutes can be more effectively resolved. In addition, while these challenges are characteristic of environmental statutes, they are not unique to them, and tools to address these challenges may find broader application in New Zealand statute law.

This article begins substantively in Part 2 with a more detailed analysis of

Greenpeace. In particular, it is noted that the approach to statutory interpretation

1 Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112, [2009] 1 NZLR 730. 2 See Richard J Lazarus and Claudia M Newman, “City of Chicago v Environmental Defense Fund: Searching for Plain Meaning in Unambiguous Ambiguity” (1995) 2 NYU Env LJ 1,

at 7.

3 Resource Management Act 1991 (“RMA”), s 7(i).

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adopted in the majority judgment and the description of that approach is misaligned. Part 3 argues that despite the textualist majority judgment, a purposive approach would have been expected in Greenpeace. Part 4 speculates as to why the majority adopted a textualist approach. Two key reasons are identified and discussed: a perceived inability to sensibly apply a purposive analysis, and a desire to defer to other decision-makers. Part 5 suggests placing environmental legislation in its socio-political context — for example, by identifying the relevant “interpretative community” for a legislative provision⁴

— as an important means of resolving the difficult interpretative issues found in environmental statutes. Based on this analysis it is argued that closer attention needs to be paid to the public-value component of environmental protection policy. Part 6 offers a brief conclusion.

2. TEXT, PURPOSE, RHETORIC AND SUBSTANCE: THE GREENPEACE CASE

Greenpeace is an interesting example of a statutory interpretation issue that risks complication because the relevant statute implements environmental policy. This part summarises the issue in Greenpeace, and contrasts the approach of the majority judgment with the Chief Justice’s dissent. Both approaches largely reflect attempts at applying orthodox statutory interpretation techniques, despite the very different results reached. Of particular interest is that while the majority purported to place a greater emphasis on purpose, the judicial rhetoric does not align with the substance of the reasoning set out in the majority judgment. Indeed, it would not be incorrect to characterise the majority’s approach as emphasising a textual analysis.

2.1 The Issue: Non-renewable Energy Generation and Greenhouse Gases

The central issue in Greenpeace turned on the interpretation of s 104E of the RMA, which provides:

104E Application relating to discharge of greenhouse gases

When considering an application for a discharge permit [...] to do something that would otherwise contravene section 15 [...] relating to the discharge into the air of greenhouse gases, a consent authority must not have regard to the effects of such a discharge on climate change, except to the extent that the use

4 On “interpretative communities” generally, see Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Clarendon, Oxford, 1989).

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and development of renewable energy enables a reduction in the discharge into the air of greenhouse gases, either––

(a) in absolute terms; or

(b) relative to the use and development of non-renewable energy.

Section 104E was inserted into the RMA by s 7 of the Resource Management (Energy and Climate Change) Amendment Act 2004 (the “Amendment Act”). The purpose of the Amendment Act is set out in s 3 of that Act:

3 Purpose

The purpose of this Act is to amend the [RMA]––

(a) to make explicit provision for all persons exercising functions and powers under the [RMA] to have particular regard to––

(i) the efficiency of the end use of energy; and

(ii) the effects of climate change; and

(iii) the benefits to be derived from the use and development of renewable energy; and

(b) to require local authorities––

(i) to plan for the effects of climate change; but

(ii) not to consider the effects on climate change of discharges into the air of greenhouse gases.

This purpose statement should, of course, be read together with the purpose of the RMA, which is to promote the sustainable management of natural and physical resources.⁵ Sustainable management involves managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing, and for their health and safety, while: sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and avoiding, remedying, or mitigating any adverse effects of activities on the environment.⁶ In addition to the purpose section, ss 6–8 set out principles that must be taken into account by persons exercising functions and powers under the RMA, so that the purpose of the RMA is achieved. In Greenpeace, two principles stemming from paragraphs

(i) and ( j) of s 7 were of particular relevance,⁷ being that all persons exercising functions and powers under the RMA must take into account:⁸

5 RMA, s 5(1).

6 Ibid, s 5(2).

7. These provisions were also inserted into the RMA by virtue of the Resource Management (Energy and Climate Change) Amendment Act 2004.
8. “Climate change” is defined as a change of climate that is attributed directly or indirectly to

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(i) the effects of climate change;

( j) the benefits to be derived from the use and development of renewable energy.

Section 15 of the RMA, referred to in s 104E, provides that no person may discharge any contaminant into the air unless that discharge is authorised by resource consent, by regulation, or by a rule in a district plan. Genesis, an electricity generator, proposed to build a gas-fuelled generation facility. The proposed facility would, if built and put into operation, discharge contaminants into the air. As there was no relevant rule or regulation authorising the proposed discharges, Genesis applied to the Auckland Regional Council for resource consent to do something that would otherwise contravene s 15.⁹

As the contaminants associated with the proposed discharge included greenhouse gases, s 104E was relevant to the Auckland Regional Council’s decision. Section 104E refers to “renewable energy”, which is energy produced from “solar, wind, hydro, geothermal, biomass, tidal, wave, and ocean current sources”.¹⁰ Genesis’s proposed generation facility would not fall within this definition, and so would not constitute renewable energy. Genesis argued that s 104E applies only if the relevant resource consent concerns renewable energy, and that any failure of its application to reduce greenhouse gases in either absolute or relative terms because of the non-renewable nature of its proposed generation facility could not be taken into account by the Auckland Regional Council.¹¹ This position was, however, not supported by prevailing judicial precedent. In Greenpeace New Zealand Inc v Northland Regional Council (“Northland Regional Council”),¹² the High Court held that s 104E applied to all resource consents concerning the discharge of greenhouse gases, including those that concerned non-renewable energy generation. This approach would require the Auckland Regional Council to consider the failure of Genesis’s proposal to reduce the discharge of greenhouse gases.

The Greenpeace case was essentially a challenge by Genesis to that prevailing High Court authority. A full bench of the Court of Appeal accepted Genesis’s position, and overruled Northland Regional Council.¹³ Against that background, Greenpeace appealed to the Supreme Court. The issue, therefore, can be succinctly stated in terms of the correct interpretation of the

human activity that alters the composition of the global atmosphere and that is in addition to natural climate variability observed over comparable time periods: RMA, s 2.

9. See RMA, s 87(e).
10. Ibid, s 2.
11. Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112, [2009] 1 NZLR 730,

at para [8].

12. Greenpeace New Zealand Inc v Northland Regional Council [2006] NZHC 1212; [2007] NZRMA 87 (HC). 13 Genesis Power Ltd v Greenpeace New Zealand Inc [2007] NZCA 569; [2008] 1 NZLR 803 (CA).

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relevant statutory provision: does s 104E of the RMA require consideration of the potential for a reduction of greenhouse gas discharges in respect of all applications for resource consent whether concerning the use or development of renewable or non-renewable energy, or does it apply where an application concerns the use or development of renewable energy only?

2.2 The Majority Judgment: A (Veiled) Triumph for Textualism?

The majority of the Supreme Court, in a judgment prepared by Wilson J, agreed with Genesis that the more limited application of s 104E was the better interpretation. The stated starting point for the majority’s reasoning was the approach to statutory interpretation in Commerce Commission v Fonterra Co- operative Group Ltd.¹⁴ That approach gives effect to s 5(1) of the Interpretation Act 1999, and has been summarised as follows:¹⁵

[Section 5] makes text and purpose the key drivers of statutory interpretation. The meaning of an enactment must be ascertained from its text and in light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. In determining purpose the Court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.

The focus on purpose in this interpretative approach is readily apparent. The modern approach to statutory interpretation, mandated by s 5(1), places purpose at the heart of any inquiry into a statute’s meaning.¹⁶ This approach requires that the text and purpose of a provision be considered in “harmony”,¹⁷ and not in isolation of each other, so that balance is achieved between literal meaning and wider purpose.¹⁸ As the passage above indicates, even seemingly unambiguous text must always be read again in light of the relevant purpose.

It is surprising, then, that the majority considered the text of s 104E ahead of any purposive analysis. The majority judgment is brief, and the crux of the

14. Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36; [2007] 3 NZLR 767 (SC).
15. Ibid, at para [22].
16. J F Burrows and R I Carter, Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 201. See also J F Burrows, “The Changing Approach to the Interpretation of Statutes” (2002) 33 VUWLR 981.
17. Burrows & Carter, ibid, at 208.
18. Tanner and Carter, “Purposive Interpretation in New Zealand Legislation”, Australasian Drafting Conference Paper, Sydney, August 2005, at para [66], cited in Burrows & Carter, ibid.

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textual analysis is laid out in two paragraphs. In addressing the interpretation of both s 104E and a similar provision,¹⁹ the majority reasoned as follows:²⁰

• [52] Sections 70A and 104E do not specify explicitly whether or not the exception contained within them is confined to proposals which involve the use and development of renewable energy. The language of the sections does however demonstrate, in a number of ways, a clear implicit premise that the exception is confined in this way.

• [53] First, the opening words of s 104E, “when considering an application”, indicate that the section is case specific. Secondly, any application being considered must necessarily involve a renewable source; if it does not, there is no possibility of reducing the discharge of greenhouse gases either absolutely or relatively. Thirdly, the phrase “to the extent”, as it appears in both s 70A and s 104E, also implies that the use and development of renewable energy is the subject of the rule or application because, again, other uses would not be capable of resulting in any reduction. Fourthly, the words “the use and development of renewable energy” in each section must relate to a rule or application, and that rule or application must therefore relate to a renewable source. Fifthly, the phrase “enables a reduction” as it appears in each of the sections necessarily implies an actual rather than a hypothetical use of a renewable source because a reduction can result only from actual use. If the exception had been intended to extend to the use of non-renewable sources, words such as “would enable a reduction” might have been expected. This view is supported by the fact that a relative reduction has as its point of comparison the use and development of non-renewable energy, which itself suggests that the exception is concerned with the use and development of renewable energy. Sixthly, both the prohibition and the exception must be given practical effect. If the exception were construed as applying to the use and development of both renewable and non-renewable energy it would, in the words of the Court of Appeal, “in effect overwhelm the prohibition” because a proposal which came within the prohibition would in all probability come within the exception. (citations omitted)

This analysis is manifestly textual. The focal point is the express terms of s 104E, and aside from briefly reading s 104E as an exception in the context of its respective prohibition (with respect, the strongest of the above arguments),

19. Section 70A of the RMA concerns rules dealing with the discharge of greenhouse gases, and it is worded in a manner that is substantially similar to section 104E.
20. Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112, [2009] 1 NZLR 730,

at paras [52]–[53].

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no serious mention is made of purpose or the wider statutory context. The result is analysis that is purely textualist: it is a complete and stand-alone argument based almost exclusively on the text of s 104E.

This textual analysis drives the majority’s entire approach to the interpre- tation of s 104E. Only after firmly arriving at its conclusion based on this textual analysis did the majority consider purpose. Reading s 7 of the RMA and s 3 of the Amendment Act together, but not expressly considering s 5 of the RMA, the majority reasoned that the underlying policy of the Amendment Act is to “require the negative effects of greenhouse gases causing climate change to be addressed not on a local but a national basis”.²¹ In the majority’s view, this underlying policy is best given effect by the interpretation argued for by Genesis. Accordingly, “text and purpose both support the interpretation that the exception in [s 104E] applies only to applications which are founded on the use and development of renewable energy”.²²

If a traditional purposive approach were applied, it would be expected that the text of s 104E would be read in light of the purpose provisions of both the RMA and the Amendment Act. However, the majority appears to have failed to read the plain words of s 104E in light of any understanding of purpose. The majority analysed text and purpose independently, and then reached a conclusion based on a happy congruence of the position reached in each case. As noted above, the Interpretation Act requires purposive analysis to inform textual analysis, and it is somewhat artificial to conclude that a particular approach is intended simply because text and purpose “match up”. In light of this departure from orthodox interpretative analysis, it is perhaps disappointing that the majority did not state its reasons for adopting an alternative approach more fully.

After considering text and purpose, the majority considered various par- liamentary materials as part of an enquiry into legislative history. The Bill foreshadowing the Amendment Act, as introduced, made it express that both s 70A and s 104E provided that the relevant decision-maker “may have regard to the effects of climate change of an activity involving the use and development of renewable energy to the extent that it reduces the discharge into the air of greenhouse gases in New Zealand”,²³ with the italicised words being removed prior to enactment. A change such as this might suggest that a different meaning was intended; however, the majority was able to draw on the speech of the

21. Ibid, at para [55]. While not expressly stated in the majority judgment, presumably this conclusion is based on the role of local authorities as provided for in the purpose statement of the Amendment Act: see Resource Management (Energy and Climate Change) Amendment Act, s 3(b). See also Genesis Power Ltd v Greenpeace New Zealand Inc [2007] NZCA 569; [2008] 1 NZLR 803 (CA).
22. Ibid, at para [56].
23. Resource Management (Energy and Climate Change) Amendment Bill (48-1).

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responsible Minister on the second reading of the Bill, where it was noted that the amendments clarified the meaning of the Bill “without requiring substantive change”.²⁴ On this basis the majority found that the words “of an activity involving the use and development of renewable energy” should effectively be read into s 104E. Accordingly, the textual and purposive analysis undertaken by the majority was supported by its consideration of legislative history.

Overall, the majority judgment in Greenpeace can be fairly characterised as a substantive approach driven by narrow textual analysis, but married with the rhetoric of a more purposive approach to statutory interpretation. Importantly, the key analytical points fall out of the majority’s textual analysis exclusively. Placing purpose at the rhetorical centre of the enquiry does enable the majority to more readily insert their interpretation of the legislative history into the analysis,²⁵ but this device is used only to support points already established on reading the provision in isolation from its broader context. In short, despite its rhetoric the majority’s preference for textualist statutory interpretation is manifest; it is less clear why a textualist approach was adopted.

2.3 The Dissenting Judgment: Application of the Purposive Approach

The dissenting judgment of the Chief Justice reached the complete opposite result to determining the issue in Greenpeace. However, the focus of this article is interpretative analysis, where perhaps the most marked difference in approach from the majority judgment is the more traditional analysis of purpose, which permeates the reasoning in the dissent. The benefits of renewable energy are discussed in the context of promoting “sustainable management of natural and physical resources” and “the reasonably foreseeable needs of future generations”, which are clear references to the s 5 purpose statement.²⁶ The purpose provisions of the RMA are discussed further in considering the statutory background.²⁷ This sets the tone for a judgment that relies on purpose and context to elucidate the meaning of the specific text of s 104E.

A key focus in the Chief Justice’s dissenting judgment is s 7 of the RMA, and in particular the paragraph (i) and ( j) requirements for all persons exercising functions and powers under the Act to have regard to the effects of climate change and the benefits to be derived from the use and development of renewable energy. The Chief Justice also draws on the purpose of the Amendment Act, noting that it established a new regime for dealing with

24. Hon Judith Tizard (17 February 2004) 615 NZPD 11041.
25. Analysis of legislative history was unlikely to be determinative in any case, as the Chief Justice’s dissent was also able to find support in the legislative history.
26. Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112, [2009] 1 NZLR 730,

at para [4].

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greenhouse gas emissions to the extent that such emissions impact on climate change.²⁸ The clear implication is that s 7(i) and ( j), and s 104E, are to be read in light of s 3 of the Amendment Act, and the purpose of mitigating the effects of climate change through management of greenhouse gas emissions.

It is against this wider statutory background that the Chief Justice interprets s 104E. Again, the relevant analysis is succinctly captured:²⁹

The general obligations imposed by the statute on the consent authority include the requirement in s 7(i) to pay “particular regard” to “the effects of climate change”. That obligation is necessarily modified by s 104E to limit the effects of the discharge upon climate change to “the extent that the use and development of renewable energy enables a reduction in the discharge into the air of greenhouse gases”. The consent authority also remains under an obligation to pay “particular regard” to “the benefits to be derived from the use and development of renewable energy” under s 7( j). As I think to be the case with the equivalent rule-making provisions, the scope of s 7( j) is not restricted by s 104E. Indeed, as in s 70A, s 104E clarifies the scope of s 7( j) by making it clear that the “benefits to be derived from the use and development of renewable energy” are not confined to the sustainability of energy resources inherent in the description “renewable”. The benefits, as acknowledged by s 104E, include any reduction in the discharge into the air of greenhouse gases which the use of renewable energy enables.

This passage represents a more traditional approach to purposive analysis than that actually undertaken by the majority. The Chief Justice seeks to inter- pret the text of s 104E in light of the purpose of the RMA and specifically the Amendment Act, and reconcile that interpretation with the fundamental considerations regarding climate change and greenhouse gases contained in s 7 of the RMA. Despite not expressly citing either source, this approach would appear to be consistent with both the Interpretation Act and the approach advocated in Fonterra. This contrasts with the substance of the majority judgment, and serves to highlight the mismatch between that substance and the majority’s rhetoric.

2.4 Summary — A Deceptively Difficult Issue?

Two factors in the above analysis are worth highlighting. First, a close reading of the majority judgment reveals a fundamental confusion over the role of purpose and text used to resolve the statutory interpretation issue. As a result,

28 Ibid, at paras [14]–[15].

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it is unclear if the issue is actually determined by the majority in line with orthodox statutory interpretation techniques. Second, the Chief Justice’s strong dissent, based on orthodox consideration of purpose provisions, suggests at least that the majority judgment should not simply be taken as read. These factors indicate that resolving the issue of statutory interpretation which lies at the heart of Greenpeace may not be as straightforward as a judgment joined by four Supreme Court Justices might suggest. It is, accordingly, difficult to proclaim with any real certainty that the final result is a “logical one in light of the fairly clear statutory language and even clearer legislative intention”.³⁰ Analysing and better understanding the possible reasons for the confused legal position is the focus of the remainder of this article.

3. THE ORTHODOXY OF THE PURPOSIVE APPROACH

Given the surprising departure from purposive interpretation in the majority judgment, it is useful to examine textualist interpretations of statutes in more detail. In many overseas jurisdictions, and in particular the United States, the purposive-textualist debate is well developed, and a textualist rather than purposive reading of a statute will often be applied. Examining this divergence exposes some of the weakness of purposive approaches to interpretation, especially in the context of environmental legislation. Further, textualist approaches do have their own instrumentality, and this may go some way to justifying the textualist approach adopted by the majority in Greenpeace. However, it should not be ignored that the majority significantly downplays its use of textual analysis. This may suggest that the majority’s analysis was not motivated by an ideological approach to statutory interpretation, but something else entirely.

Before embarking on analysis of textualist interpretations, it is worth emphasising that a purposive approach would have been expected, at least on first blush, in Greenpeace. One reason for this expectation has already been discussed: a purposive interpretation is mandated by the Interpretation Act. This, coupled with the New Zealand style of statutory drafting that often expressly identifies legislative purpose in one or more separate purpose provisions, means that the debate is already skewed in favour of a purposive approach.

There are two other reasons that a purposive interpretation would have been expected in Greenpeace, both of which are case-specific. Firstly, one of the key attributes of the RMA is its cohesive, integrated nature. The

30 This is one commentator’s assessment of the Court of Appeal judgment, which reached the same result as the majority of the Supreme Court: see Alon Tal, “Tried and True: Reducing Greenhouse Gas Emissions in New Zealand through Conventional Environmental Law Modalities” [2009] OtaLawRw 8; (2009) 12 Otago LR 149, at 162.

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RMA provides a “comprehensive, integrated and co-ordinated” approach to environmental issues.³¹ The interpretation of particular provisions without reference to the wider statutory context risks undermining this key strength. Further, the clear policy goals of the RMA risk frustration if a literal approach to particular provisions is adopted. Environmental statutes often contain words or phrases that are embedded with indeterminate and value-laden concepts, such as “sustainable management”. In such cases, it would be expected that the textualist predilection for reducing complicated terms to a single, literal or dictionary meaning is flawed, or at best can offer limited assistance only.³² Greenpeace was a clear example of this risk, with both the purpose provisions of the Amendment Act and paragraphs (i) and ( j) of s 7 of the RMA expressly articulating the policy of ameliorating the adverse effects of climate change through the mitigation of the discharge of greenhouse gases. Environmental statutes such as the RMA are set within a broader policy context, and it would be natural to expect that issues of statutory interpretation would be resolved according to that policy context. With respect, this broader approach accounting for purpose and wider policy context appears to have been applied by the Chief Justice in Greenpeace.

Secondly, the RMA is clearly drafted in purposive, goal-oriented terms that place the purpose provisions at the metaphorical centre of the RMA. This strongly suggests that the s 5 purpose statement and the principles set out in the remaining provisions of Part II of the RMA should influence the interpretation of specific provisions. In the scheme of the RMA, both the purpose statement and accompanying principles have been described as paramount.³³ Further, it is generally accepted in the courts that interpretation of the RMA involves an “overall broad judgment” approach, which places the s 5 purpose at the centre of any inquiry.³⁴ The High Court has put the issue in the following terms:³⁵

[Part II] of the Act expresses in ordinary words of wide meaning the overall purpose and principles of the Act. It is not, I think, a part of the Act which should be subjected to strict rules and principles of statutory construction

31. Ulrich Klein, “Integrated Resource Management in New Zealand –– A Juridical Analysis of Policy, Plan and Rule Making under the RMA” (2001) 5 NZJEL 1, at 2.
32. See Bradford C Mank, “Is a Textualist Approach to Statutory Interpretation Pro- Environmentalist?: Why Pragmatic Agency Decisionmaking is Better than Judicial Liberalism” (1996) 53 Wash & Lee L Rev 1231, at 1280. See also Kathryn McMahon, “Competition Law, Adjudication and the High Court” (2006) 30 Mel ULR 782, at 790.
33. Deborah Lynne Johnson, “Electricity and the Environment –– Current Trends and Future Directions” (2008) 12 NZJEL 195, at 215.
34. “The method of applying s 5 then involves an overall broad judgment of whether a proposal would promote the sustainable management of natural and physical resources”: North Shore City Council v Auckland Regional Council [1997] NZRMA 58 (Env C) at 94.
35. New Zealand Rail Ltd v Marlborough District Council [1993] NZCA 27; [1994] NZRMA 70 (HC) at 86.

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which aim to extract a precise and unique meaning from the words used. There is a deliberate openness about the language, its meaning and its connotations which I think is intended to allow the application of policy in a general and broad way.

It would be remiss to fail to note that debate continues over the proper approach to s 5 of the RMA,³⁶ but the overall broad judgment approach and the philosophy underpinning the above passage is the dominant approach applied by the courts.³⁷ Given this emphasis on broad policy as opposed to precise meaning, it is difficult to see how an issue of interpretation could be legitimately resolved by textual analysis without wider consideration of statutory purpose and underlying policy. It is against this backdrop that the textualist approach adopted in Greenpeace should be considered.

4. A TEXTUALIST APPROACH TO ENVIRONMENTAL STATUTES

Textualist approaches to interpretation have significant support in a broader international context. In particular, the purposive approach mandated in New Zealand law may be usefully contrasted with the textualist approaches endorsed by some prominent judges in the United States.³⁸ Textualists prefer to give the actual words of an operative provision their ordinary meaning,³⁹ which is determined with reference to traditional judicially constructed rules of interpretation.⁴⁰ The rationale for this approach is that the text of a provision itself represents the best evidence of legislative intent: the plain words of the statute must be applied because “[s]tatutes are the law, not evidence of law”.⁴¹

36. Compare, for example, Memon and Skelton, “Adopting Sustainability as an Overarching Environmental Policy: A Review of Section 5 of the RMA” (2002) X1 Res Man J 1 and Upton, Atkins and Willis, “Section 5 Re-visited: A Critique of Skelton and Memon’s Analysis” (2002) X3 Res Man J 10.
37. For discussion, see generally, Peter Fuller, “The Resource Management Act 1991: ‘An Overall Broad Judgment’” (2003) 7 NZJEL 243.
38. Justice Antonin Scalia of the United States Supreme Court is often identified as the leader of the textualist movement in the United States: see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, Princeton, 1997). There also appears to be some evidence that this “American” style of statutory interpretation is making inroads into Australia: see David Tucker, “Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia” (1999) 21 Sydney LR 22.
39. See William N Eskridge Jr, “The New Textualism” (1990) UCLA L Rev 621.
40. John F Manning, “What Divides Textualists from Purposivists?” (2006) 106 Colum L Rev 70, at 81.

41 Re Sinclair [1989] USCA7 234; 870 F 2d 1340 (7th Cir 1989) at 1343.

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There is, then, a certain pedigree to textualist interpretation of statutes, even though it is not the generally accepted approach in New Zealand.

The adoption of a textualist approach to the interpretation of statutes does not deny the applicability of legislative purpose provisions. Purpose provisions are part of the statute as enacted, and therefore form an important part of a complete assessment of statutory text. Other, broader conceptions of purpose are, however, excluded on an orthodox textual analysis. Context and underlying policy considerations are not considered, perhaps best represented by the textualist distaste for the analysis of legislative history.⁴² Legislative history is perceived as an unreliable and inconsistent indicator of legislative intent, and is considered undemocratic because only the statute as enacted represents the view of the legislature.⁴³ Further, purpose provisions play a limited role in a textualist analysis as the focus is squarely on the text of the provision in question. In the absence of manifest uncertainty or ambiguity, analysis of the text of the relevant provision alone is likely to be determinative of statutory meaning.

The majority judgment in Greenpeace, with its analysis of text in isolation of purpose, can fairly be characterised as textualist in light of the above description. While some express purpose provisions and even elements of legislative history were considered in the majority judgment, these features of statutory interpretation did not actually influence the interpretation of s 104E. Rather, these features of statutory interpretation provided ex post justification only for a result already arrived at by other means.

Interestingly, the majority in Greenpeace did not adopt a textualist analysis overtly; as noted above, the majority purported to apply an orthodox purposive approach. Further, even the ersatz recognition the majority affords legislative history is inconsistent with a true textualist analysis. It is unlikely, then, that the majority adopted a textualist approach in support of ideological views of statutory interpretation technique. A more realistic conclusion is that there were real practical advantages to be gained from adopting a textualist- driven approach. It is submitted that two such advantages may have more directly contributed to the use of textual analysis in the majority judgment in Greenpeace, in part due to the environmental protection subject matter of the statute in question: a perceived inability to sensibly apply a purposive analysis; and a desire to defer to the decision-making of another branch of government.

42. Scalia, supra note 38, at 29–30. See also Frank H Easterbrook, “What Does Legislative History Tell Us?” (1990) 66 Chi-Kent L Rev 441.
43. See Frank H Easterbrook, “The Role of Original Intent in Statutory Construction” (1988) 11 Harv J L & Pub Pol’y 59.

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4.1 Inability to Apply Purposive Analysis

As noted above, purpose provisions setting out underlying policy are of central importance in the scheme of the RMA. This is a feature of many environ- mental protection statutes. While this central importance suggests that a purposive approach is more appropriate than textualism, purpose provisions in environmental statutes are notoriously difficult to apply in practice because those provisions fail to clearly articulate the policy trade-offs necessary to apply the legislation in practice. This inability to sensibly apply a purposive interpretation may in turn motive the adoption of more textualist interpretations. The RMA as applied in Greenpeace appears to be no exception.

The purpose provisions of the RMA have fairly been described as “goal- based” because they establish an overarching goal but leave the detail of implementation of that objective to another entity. This other entity may be a bureaucratic branch of central government, but in Greenpeace it is a regional authority. While many of the relevant provisions have already been discussed, some further detail is required at this stage to demonstrate the point. Section 5 of the RMA establishes the broad goal of sustainable management of natural and physical resources. Sections 6, 7 and 8 provide some further guidance on the RMA’s underlying policy objectives, but again at a high, abstract level only. Each section identifies matters that the decision-maker must take into account. Section 6 sets out matters of national importance, including the preservation of natural features and landscapes,⁴⁴ the protection of indigenous wildlife,⁴⁵ and the relationship of Maori with natural resources.⁴⁶ Section 7 sets out other matters, including the ethic of stewardship,⁴⁷ the intrinsic value of ecosystems,⁴⁸ and the already mentioned effects of climate change and benefits of renewable energy. Section 8 expressly requires the Treaty of Waitangi to be taken into account. However, there is little further substantive direction from the legislature on environmental policy in the RMA. The result is that Parliament’s role in giving substantive direction to the processes set out in the RMA is reduced to the establishment of an amorphous, overarching goal and a series of high-level mandatory considerations.⁴⁹

The RMA and other environmental statutes are prone to goal-based provi- sions for a number of reasons. Firstly, increasing environmental awareness has coincided with a move away from the articulation of detailed and prescriptive

44. RMA, s 6(b).
45. Ibid, s 6(c).
46. Ibid, s 6(e). 47 Ibid, s 7(aa). 48 Ibid, s 7(d).

49 Janet McLean, “New Zealand’s Resource Management Act 1991: Process with Purpose?” [1992] OtaLawRw 3; (1992) 7 Otago LR 538, at 544.

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legislative rules towards the enactment of overarching, governing principles.⁵⁰ This trend endorses the delegation of much of the responsibility for fleshing out the detail of regulatory schemes and applying those schemes in practice to administrative agencies and other entities.⁵¹ Other entities are perceived as better placed to undertake implementation, with judicial oversight on issues of legality.⁵²

Secondly, environmental policy issues are very difficult to resolve. Legis- lators often recognise that they do not have the best information to determine regulatory schemes involving environmental issues.⁵³ Thirdly, and perhaps relatedly, environmental policy issues are controversial. Different interest groups with starkly different agendas are likely to place significant pressure on elected officials.⁵⁴ In both cases, legislators tend to avoid making difficult choices. Broad, goal-based purpose provisions allow legislators to adopt a positive, pro-environmentalist rhetoric while the difficult policy and political issues are in effect delegated to administrative agencies,⁵⁵ or ultimately the courts where issues fall for legal determination.

There are, then, good reasons for adopting goal-based legislative drafting, especially where a bureaucratic agency is responsible for determining implementation matters. Many goal-based provisions, including those in the RMA, do not provide the necessary guidance for a court to determine issues of statutory interpretation. This is because goal-based provisions are primarily symbolic, and therefore do not make clear trade-offs between competing values inherent in the legislative scheme.

In other jurisdictions, environmental legislation has been criticised severely for being symbolic, in the sense that it provides for aspirational (and unachievable) goals rather than clear policy choices.⁵⁶ This approach clouds the policy choices and trade-offs that the legislature should be making, leaving both implementation agencies and the courts with little guidance on dealing with very difficult conflicts. But deal with those conflicts they must:⁵⁷

Symbolic legislation does not suppress the conflicts that arise in designing and implementing a regulatory scheme; instead, it transfers those conflicts to

50. Ibid, at 539.
51. See Edward L Rubin, “Law and Legislation in the Administrative State” (1989) 89 Colum L Rev 369.
52. D A R Williams, Environmental Law in New Zealand (Butterworths, Wellington, 1980) at 8. 53 See Daniel A Farber, “Politics and Procedure in Environmental Law” (1992) 8 J L Econ &

Org 59, at 76.

54. John P Dwyer, “The Pathology of Symbolic Legislation” (1990) 17 Ecology LQ 233, at 245.
55. Ibid.
56. See especially Dwyer, ibid. See also Mank, supra note 32. 57 Dwyer, ibid, at 250.

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agencies, and at times the courts, for resolution. Not only must the agency [or the court] resolve the policy and technical disputes that the legislation so deftly avoided, it must also frame its resolution in terms of statutory interpretation.

The purpose provisions of the RMA are symbolic in a different sense, but with precisely the same consequences. The purpose provisions of the RMA do not make clear how competing policy choices should be balanced in order to interpret the RMA in accordance with Parliament’s intent. It should, of course, be commended that the RMA expressly acknowledges many of the difficult trade-offs inherent in environmental policy. The potential conflict between environmental, economic, social and cultural factors is noted in the RMA, and this suggests that an integrated approach to environmental protection should be adopted. However, this leaves half the job unfinished; how these factors should be prioritised, balanced and reconciled is not made clear by the RMA.⁵⁸ Section 5(1) puts the “sustainable management of natural and physical resources” at the heart of the RMA. Section 5(2) of the RMA goes on to define “sustainable management”, but does so in a way that highlights many of the tensions inherent in that concept without attempting to resolve them. For instance, the need to balance environmental, economic, social and cultural factors is clearly noted in s 5(2). However, no guidance on how to balance these factors is provided.⁵⁹ Do environmental factors take precedence? This seems to be the general view at the time the RMA was enacted.⁶⁰ However, it is not clear on the face of s 5; and even if it were, nothing is said about when or how environmental factors should take precedence.

The issue is that the application of a purposive analysis involving s 5 of the RMA is far from straightforward. As the above analysis of s 5 has already demonstrated, there is no single, primary policy driver. Rather, there are a range of policy positions and analytical viewpoints that need to be considered:⁶¹

Unlike a modern system of positive law, which is characterised by certainty and rationalism, involves measurable standards of compliance, and functions as an autonomous discipline, environmental law is a post-modern system which often involves scientific uncertainty, a lack of information about complex environmental systems, a reflexive, pluralistic and participatory process and numerous disciplines.

58. McLean, supra note 49, at 548.
59. Ibid, at 545.
60. See Hon Simon Upton (9 May 1991) 514 NZPD 1874.
61. Roydon Somerville, “Phantom Environmental Risks and Environmental Decision- Making”, in The Courts and the Environment — serious issues (New Zealand Law Society, Wellington, 2003) 49, at 50–51.

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The judiciary is not well placed to reconcile these complex factors with a legis- lative scheme, especially in the absence of clear legislative direction on policy priorities. It should be reasonably clear at this point that a general policy of “sustainable management of natural and physical resources” can do little to resolve such complicated issues when they fall before the courts. In short, the purpose provisions of the RMA come up short as an interpretative aid because it is afflicted by a “paucity of measurable goals”.⁶² In the words of one critic, if the RMA “tells us little about sustainability, it tells us less about management”.⁶³ It may be unfair, therefore, to criticise the courts for resorting to textualism when there is simply not purposive guidance that can sensibly be applied. This inability to apply a purposive analysis sensibly or coherently may be one reason the majority judgment in Greenpeace eschewed such analysis. Reference to s 5 of the RMA would, in reality, do little to resolve the ambiguity present in s 104E, and on this front it is telling that neither judgment in Greenpeace subjects s 5 to any kind of rigorous interpretative analysis.

A textualist approach to interpretation of environmental statutes is far from ideal. Textualism fails to take account of purpose and underlying policy that is squarely within the contemplation of the legislature as part of the enactment. Given the difficulty in actually applying a purposive approach, however, a textualist interpretation may represent the only realistic option for a court that is consistent with orthodox statutory interpretation techniques. Purpose provisions in some statutes invariably do not resolve the competing tensions apparent in the hard facts of a specific case. This may explain a lack of consideration of purpose in the majority judgment in Greenpeace.

4.2 Deference to Other Decision-makers

Even assuming a purposive approach is possible, it may still be considered inappropriate for the courts to undertake the value judgements necessary to implement a purposive approach. For instance, where there are difficult distributional issues or complicated cost-benefit analyses need to be undertaken, the courts will not be as well placed as other branches of government to determine such matters. The adoption by the courts of a textualist interpretation will often mean the courts can avoid making such value judgements themselves, and in effect defer to the value judgements made by another branch of government.

Environmental statutes, such as the RMA, inherently involve complex scientific, social and political questions. The complicated “post-modern” nature of environmental regulation has already been noted above, but an additional

62. McLean, supra note 49, at 552.
63. Ibid, at 549.

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example should serve to highlight the point effectively. Like all regulatory systems, environmental regulation involves the weighing of particular costs and benefits. However, there is an inherent misalignment between the benefits purported to be conferred by environmental protection and the costs to be borne to achieve those benefits. The benefits of environmental legislation are, by and large, universal. Further, those benefits are (collectively) significant; the fact that environmental legislation exists at all testifies to the fundamental importance of the benefits of environmental protection.⁶⁴ In contrast, the costs of environmental legislation are largely borne on an individual basis. Environmental protection legislation usually operates by prohibiting or restricting certain activities that create a disproportionate amount of environmental damage. This approach means that individual industries are usually the most affected by the enforcement of environmental standards. In a small country like New Zealand, the imposition of costs is likely to be even more acute: costs are likely to be borne largely by individual corporate entities that dominate their respective industries.⁶⁵

Essential to the nature of environmental legislation, then, are diffuse benefits and targeted costs which are difficult to reconcile: the first is inherently difficult to quantify and the second is only understood fully by affected parties rather than decision-makers. The result is that when issues of interpretation fall before the courts for resolution, the question that is often being asked is for an exemption, either de facto or de jure, from an overarching environmental protection regime. The issue has been described in the following terms:⁶⁶

The nation’s environmental laws reach far, wide and deep in their efforts to strike a new relationship between human activity and the natural environment. Many of those who find their activities sharply restricted by those laws claim that their reach is too broad. But, in all events, the political price for their legislative enactment is frequently a multiplicity of exemptions more or less hidden in the statutes’ otherwise aspirational and uncompromising rhetoric and surrounding legislative history.

Resolving such issues necessarily involves a value judgement as to particular distributional effects (usually done by Parliament) and empirical evidence as to the actual costs and benefits (usually undertaken by government agencies). The

64. Farber, supra note 53, at 60. See also James Q Wilson, “The Politics of Regulation”, in J McKie (ed), Social Responsibility and the Business Predicament (Brookings Institute, Washington, 1974) 135, at 146.
65. Two examples are Fonterra Co-operative Group Ltd, which dominates the methane- and water-intensive dairy industry, and Rio Tinto Alcan (New Zealand) Ltd, which operates the Tiwai Point aluminium smelter, a heavy polluter and the largest single user of electricity in New Zealand.
66. Lazarus & Newman, supra note 2, at 7.

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courts are not well placed to deal with such issues. Environmental issues are particularly difficult: it is telling that even administrative agencies that implement environmental policy, who are much better than courts at understanding the cost-benefit implication of particular policies, also struggle with these issues. Indeed, the RMA deals with many issues on an ad hoc basis at the local authority level, and is purposefully focused on decision-making procedure rather than substantive environmental issues, in an effort to garner as much information as possible from affected parties before a decision is made. In this sense the RMA is a positive response to the misalignment between benefits and costs that result from the implementation of environmental regulation in a modern, market-based society. However, it does not change the fact that the courts struggle with policy questions at the best of times, and there is little hope of the judiciary resolving unbelievably complicated issues of environmental policy. Given the need for complex assessment of empirical evidence and difficult value judgements, it is unsurprising that the courts would seek to avoid determining questions of environmental policy if possible. The difficulty a reluctant court faces is that it must somehow address the question of statutory interpretation on foot. A textualist approach allows the court to examine the statutory interpretation issue with reference to traditional techniques in a value-neutral way, purporting to leave any value judgements to other branches of government. This is because a textualist interpretation is the most value- neutral approach available to the court consistent with orthodox interpretative approaches; both purposive interpretations and more dynamic, judicial activist interpretations rely on some kind of value judgement being made. Where textualism is employed it is the text, not the court, that must ultimately be responsible for any value judgements that are made. This in effect allows an interpretative approach that purports to defer to Parliament on the economic, social and political issues in play. As a result, a textualist interpretation allows the court to resolve the immediate statutory interpretation issue with reference to established techniques while deferring to the decision-making authority of

the legislature.

While the preceding paragraph makes a textualist interpretation appear a rather neat solution to the difficulties a court may face when interpreting environmental statutes, the reality is of course more nuanced. The fact is that the legislature will often avoid making the necessary policy decision, as indeed the New Zealand Parliament has done overtly with the RMA. Given this legislative ambivalence, a judicial textualist interpretation will often be skewed in a particular direction, and lose the value neutrality it seeks to establish. To be clear, textualist interpretations are rhetorically neutral, and are in fact neither inherently pro- nor anti-environmentalism,⁶⁷ but in a liberal, market-based

67 See Mank, supra note 32, at 1257–1267. Compare Lazarus & Newman, supra note 2.

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society the courts will naturally be reluctant to impose restrictions on behaviour when faced with ambiguous statutory language. Rather, a clear legislative indication that a prohibition is intended is needed before the courts will enforce a restriction, especially where the judiciary has precious little transparency over the economic, social and political issues involved. A key point of interest from the majority judgment in Greenpeace is just how overt that legislative cue needs to be before the courts will take action. These additional complications may explain in part the majority’s confusion over applying a purposive or textualist interpretation. However, despite the complexities involved, a textualist interpretation will be preferred because it provides the court with a convenient solution to an immediate problem –– it amounts to a simple deference on difficult questions that ought to be decided by other branches of government.

Greenpeace may well be an example of this deference approach to environmental issues given effect through a textualist interpretation. Faced with a plaintiff that would suffer specific interference with a particular project on the grounds of real but broad and ultimately undefined environmental protection benefits, it is not difficult to imagine that the court might require an express statement in favour of environmental policy in the text of s 104E before ruling against the plaintiff. Regardless of the statutory purpose provisions and underlying policy, how should the courts have considered the costs to an electricity generator proposing a new generation facility? How could these costs be sensibly weighed against the diffuse and intangible benefits of reducing the effects of climate change? Aware that the purpose provisions would do little to resolve such difficult, practical questions, was it better to attempt to resolve the issue with reference to the text of the relevant provision? Referring to purpose and legislative history only after the issue was resolved certainly avoided the need for the majority to make any value judgement on the merits of non- renewable energy generation or climate change. However, given the brevity of the majority judgment the answers to these questions can only be speculative.

5. THE SOCIO-POLTICAL CONTEXT OF ENVIRONMENTAL STATUTES

Thus far, this article has suggested that the textualist approach to statutory interpretation adopted by the majority in Greenpeace is understandable, if not yet justifiable. This part offers some justification for the majority’s approach. In particular, the socio-political context of environmental statutes provides a mechanism to reconcile the substance of such statutes — the policy of environmental protection –– with orthodox statutory interpretation techniques. This is done here by utilising recent scholarship on the role of “interpretative communities” in statutory interpretation. However, this form of justification

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presupposes the answers to much deeper questions, such as the role of envi- ronmental protection legislation in New Zealand society. Ultimately it is these deeper questions that must be answered before a particular approach to the interpretation of environmental statutes can be considered legitimate.

5.1 Interpretative Communities

Even committed textualists would surely acknowledge that any text, including a statute, acquires meaning only with reference to those who interpret it.⁶⁸ Statutory provisions are often drafted and interpreted with a particular audience in mind.⁶⁹ This particular audience represents the “interpretative community” of the relevant statutory provision. Understanding the relevant interpretative community may help identify the relevant socio-political context for the statutory provision, and therefore suggest different techniques for resolving any questions of statutory interpretation. Different audiences will rely on different analytical tools to resolve ambiguity or uncertainty in a relevant text. Understanding the intended audience of a statutory provision, even at a general level, may assist with ascertaining the meaning of that provision.

Current analysis suggests that most statutes engage one or more of three distinct interpretative communities: the policy community; the political community; and the public community.⁷⁰ The policy community largely comprises public-sector officials, who have specialised knowledge in a particular subject, and who make decisions based on reasoned argument and persuasion.⁷¹ Importantly, this deliberative reasoning usually takes place within a coherent and well-understood framework, particular to each policy area. The political community is made up primarily of elected officials, who rely on horse trading, deal making and compromise to resolve issues.⁷² Finally, the public community comprises the members of the public that are interested in a particular policy issue, but do not play an active role in government. Rather than having an interest in the detail of legislative or policy proposals, the public at large usually engages at the level of underlying principle, being influenced by big-picture ideals and the symbolism associated with particular normative positions.⁷³ Each of the three interpretative communities –– policy, political,

68. See Bradley C Karkkainen, “‘Plain Meaning’: Justice Scalia’s Jurisprudence of Strict Statutory Construction” (1994) 17 Harv J L & Pub Pol’y 401, at 407. See also Jim Evans, Statutory Interpretation: Problems of Interpretation (Oxford University Press, Auckland, 1988) at 22–23.
69. William S Blatt, “Interpretative Communities: The Missing Element in Statutory Interpretation” (2000) 95 Nw U L Rev 629, at 629.
70. Ibid, at 630.
71. Ibid, at 642.
72. Ibid, at 644.
73. Ibid.

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and public –– therefore suggests a distinctive analytical framework for resolving disputes or uncertainty: deliberation and persuasion, trading and compromise, and seeking consistency with fundamental principle respectively.

Once the appropriate interpretative community is identified, the type of decision-making style best utilised by the courts to resolve a particular interpretation issue should become plain. Rational, reasoned decision- making is best used to resolve policy-style issues within a particular policy framework, suggesting an emphasis on purpose and context. Political-style issues, often identified by the fact that there are “winners” and “losers” in a distributional sense, are best resolved by the courts through ascertaining the nature of the “deal” reached by elected legislators. This supports a more textual approach to interpretation.⁷⁴ Public-style issues, usually high-profile and evoking moral standards such as human rights, should be resolved with reference to fundamental values, which may in effect trump other interpretative approaches.⁷⁵

Reference to broader socio-political context, including reference to interpretative communities, is an important adjunct to standard statutory interpretation techniques. The purposive approach to statutory interpretation mandated by the Interpretation Act requires the court to have regard to “the general legislative context” as well as “social, commercial or other objectives” of an enactment.⁷⁶ Reference to interpretative communities is, it is submitted, a useful way of identifying that wider context, and suggesting the type of interpretation that should be adopted in response to a particular socio-political context. It may, therefore, prove valuable to revisit the Greenpeace case in light of interpretative community-style analysis.

5.2 Greenpeace Revisited

Viewing the substance of the judgments in Greenpeace through the lens of interpretative communities, it is noticeable that the majority adopted a political

74. One of the most interesting manifestations of this approach is judicial deference to executive decision-making where Parliament has delegated responsibility for striking the “deal” to an administrative agency: see Unison Networks Ltd v Commerce Commission [2008] 1 NZLR 42 (SC).
75. The judicial rhetoric may not always make this “trumping” plain, especially in New Zealand where the courts still adhere to the doctrine of parliamentary sovereignty. See Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 (SC). For general discussion of this case, see Claudia Geiringer, “Parsing Sir Kenneth Keith’s Taxonomy of Human Rights: A Commentary on Illingworth and Evans Case” in Rick Bigwood (ed), Public Interest Litigation: New Zealand Experience in International Perspective (LexisNexis NZ, Wellington, 2006) 179–186.
76. Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36; [2007] 3 NZLR 767 (SC) at para [22].

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decision-making approach. The majority proceeded as if to give effect to a political bargain recorded (if somewhat hidden) in the text of s 104E. This may indicate that the majority considered the distributional effects of s 104E to be the dominant consideration. In other words, the majority considered that the socio-political context of s 104E required emphasis on textual analysis. Textual analysis, on this understanding, represents a means to an end rather than a dogmatic position, which may explain the secondary consideration of purpose and legislative history in the majority judgment. If this is indeed part of the thinking underlying the majority’s approach, it is disappointing that this was not clarified.

The Chief Justice, in contrast, adopted a policy-driven approach, which sought consistency between the treatment of different forms of energy genera- tion in light of the climate change effects such generation was likely to produce. The dissent represents a clear search for underlying policy, explaining the broader policy discussion that begins the judgment, which then informs statutory purpose and ultimately the text of s 104E. Managing the effects of climate change through the processes and procedures in the RMA is thus the driving force behind the Chief Justice’s analysis. This represents a preference for policy in understanding the socio-political context underpinning environmental legislation in New Zealand.

Rather than representing contrasting approaches to statutory interpretation, the majority and dissenting judgments are better, and more usefully, conceived as contrasting understandings of the socio-political role of environmental protection provisions. Which approach is correct? It is still difficult to say with certainty. Socio-political analysis such as the interpretative communities analysis presented here is not intended to provide a single correct answer to questions of statutory interpretation; its value lies in highlighting the competing ideological choices necessarily made when a particular approach to statutory interpretation issues is adopted. The aspect of environmental statutes that makes them difficult to interpret is that there appears to be no general consensus on which ideological position should be adopted. Is environmental protection a political or policy issue? The socio-political analysis offered in this article makes this tension plain, but does not attempt to resolve it. The point for present purposes is that, on this analysis, both the majority judgment and the Chief Justice’s dissent appear to be justifiable as a matter of law; it is simply different ideological perspectives that may support one approach over the other.

This difficult tension inherent in environmental protection statutes indicates that a wider debate on the role of environmental legislation in New Zealand should be undertaken, so that these contrasting judicial understandings of the relevant socio-political context can be effectively critiqued. If such a debate can be instigated, then it is also worth mentioning that neither the majority judgment nor the dissenting judgment of the Chief Justice openly considers a more public-

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oriented style of decision-making to resolve environmental protection issues. This may be because the RMA, with its focus on regional decision-making, was not necessarily drafted with the wider public in mind. However, the majority judgment’s suggestion that climate change is a national rather than a regional issue,⁷⁷ and the fact that participatory decision-making is a fundamental aspect of the RMA,⁷⁸ suggests a reassessment of this view is warranted. There does appear to be an increasingly high moral value placed on environmental protection by the wider public. For instance, there is an increasing understanding of the importance of environmental protection, both in New Zealand and around the world, which suggests there is an increasing moral case for environmental protection to be applied more liberally. Following public touchstones such as the Stern Review⁷⁹ and An Inconvenient Truth,⁸⁰ environmental protection has become a highly charged moral issue. Environmental protection policy may be transitioning through a “republican moment”,⁸¹ where normative positions galvanise the public to drive development of the law. Further, there is increasing recognition of a human rights dimension to environmental law,⁸² suggesting a values-based approach is appropriate. Finally, adopting a public-oriented approach to environmental protection issues may provide a circuit breaker needed to cut through the rhetoric of statutory interpretation and actually reach a principled result based on the substance of the individual circumstances of the specific case. This suggests that if an issue of interpretation does reach the courts, then a wider assessment of the public value placed on strict environmental standards should at least be considered, if not applied. While text and purpose are unlikely to be unduly displaced, it might be legitimate that environmental protection issues be determined on a “broad, unquibbling and practical” basis.⁸³ Only more fulsome consideration of the issues will tell.

77. Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112, [2009] 1 NZLR 730,

at para [55].

78. McLean, supra note 49, at 542.
79. Nicholas Stern, Stern Review on the Economics of Climate Change (HM Treasury, London, 2006).
80. Davis Guggenheim, An Inconvenient Truth (Feature Film, Lawrence Bender, Scott Z Burns and Laurie David, Los Angeles, 2006).
81. See James Pope, “Republican Moments: The Role of Direct Popular Power in the American Constitutional Order” (1990) 139 U Penn L Rev 287.
82. See Dinah Shelton, “Human Rights, Environmental Rights, and the Right to the Environment” (1991) 28 Stan J Int’l L 103. See also Stephen Tully, “The Contribution of Human Rights as an Additional Perspective on Climate Change Impacts within the Pacific” (2007) 5 NZJPIL 167, at 181–199.
83. The phrase is borrowed, with apologies, from Lord Cooke of Thorndon: New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA), at 654.

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6. CONCLUSION

The analysis in this article has sought to demonstrate that the statutory interpre- tation issue in Greenpeace is not as straightforward as a cursory assessment might indicate. Two reasons for this have been suggested: that the majority felt unable to apply an orthodox purposive analysis sensibly; and that in any case it preferred to defer to the decision-making of other branches of government. While any view on the actual role these factors played in Greenpeace is necessarily speculative, the fundamentally confused approach adopted by the majority to determine the meaning of s 104E suggests at least something is afoot.

It is disappointing that the majority declined to articulate in any detail its approach to statutory interpretation. There are certainly grounds to support a textualist approach; this article has suggested that environmental legislation can be viewed in a political decision-making context, which would justify a textualist-driven approach. However, there are also alternative lenses through which to view environmental legislation. The Chief Justice’s dissenting judg- ment appears to have placed the RMA in a more policy-driven, socio-political context, for example. Further, there is a real question regarding the public value of environmental statutes, and whether this demands the courts take a more active role in policing environmental standards. If the majority had provided more transparency around its interpretative approach, it might be clear why the majority’s preferred approach, with its political decision-making overtones, should determine the interpretation of particular environmental legislative provisions.

There is a deeper question than simply whether proposals for non-renewable energy generation should be subject to the same climate change considerations as renewable energy generation. Rather, Greenpeace suggests that the question we should be addressing is whether our judges should shed the artifice of orthodox statutory interpretation and make value judgements on the benefits to New Zealand of environmental protection. Such a “dynamic” approach to interpretation is a natural extension of currently applied techniques,⁸⁴ though because of the necessary reference to public values it suggests a debate that needs to be undertaken on a wider basis than simply within the legal profession. It is disappointing that the majority judgment in Greenpeace did not set out the reasoning for its approach in more detail, and thereby provide the impetus for this wider debate.

84 See Mank, supra note 32, at 1236.