December 11, 2023

Shock at High Court’s transport emissions ruling

Shock at High Court’s transport emissions ruling

Court rules a Government policy prioritising cuts in greenhouse gas emissions is simply guidance. David Williams reports

It seemed fairly uncontroversial.

Last month, a Ministry of Transport/Te Manatū Waka strategy paper indicated the Government’s overarching focus would be on reducing transport emissions.

Readers of the past two Government policy statements on land transport (GPS) wouldn’t be surprised; climate change has been an increasingly important theme. (Earlier iterations focused on economic growth, value for money and road safety.)

Almost 20 percent of New Zealand’s greenhouse gas emissions come from the transport sector, with 90 percent of those from road transport – the country’s fastest growing source of carbon dioxide emissions.


* Changing the way NZ moves

* Government to keep petrol cheap and dirty

Cyclone Gabrielle, which smashed roads and rail lines, provided double-edged context.

In the wake of storms predicted to become more frequent and more intense because of the climate crisis, it’s imperative to reduce emissions. The other consideration is needing to rebuild damaged and destroyed infrastructure.

Transport Minister Michael Wood told the NZ Herald earlier this week that Waka Kotahi/NZ Transport Agency, which spends billions of dollars on transport projects, and councils, need to make investments to decarbonise the transport system.

The narrative from the National Party’s Simeon Brown was clever.

He accused Wood of wanting to “raid the maintenance budget for our roads to take money from fixing potholes to put in place cycleways which very few New Zealanders use to go to work”.

Journalist Thomas Coughlan wrote: “Brown will effectively turn the election on the GPS by promising to rip it up and start again if National wins.”

No need. On Monday afternoon, Wood and Prime Minister Chris Hipkins said the cyclone had changed the Government’s priorities. “We are now working on an emergency style GPS,” Wood told RNZ.

Writing in Newsroom, ex-politician Peter Dunne said Hipkins’ U-turn confirmed Labour “realises Ardern-era politics are now over”.

Meanwhile, the Green Party noted the irony of deprioritising climate change in transport budgets because of the consequences of a storm “which was worse because of climate change”.

A fresh twist comes from a just-released High Court judgment.

Central to the judicial review was this question: Is Waka Kotahi required to prioritise reducing transport emissions – a stated Government policy – when it makes billions of dollars of investment decisions?

The court said no, in a judgment that has shocked Movement, the charitable trust that took Waka Kotahi to court.

A spokesman for the trust, Bevan Woodward, a Nelson transport planner, says it might be Movement’s last stand as Waka Kotahi is pursuing it for costs. It is considering an appeal.

While the court action has cost tens of thousands of dollars, and was dismissed by the judge, Woodward says it has been worth it. “We’ve exposed this glaring deficiency in New Zealand’s transport planning.”

The court judgment raises important questions.

Are Government policy documents just puffery the public service can ignore? Put another way, are ministerial and departmental promises on climate change even worth the paper they’re written on?

Reducing emissions an obligation?

Movement is an umbrella group representing national organisations advocating for active transport, like walking and cycling.

Its judicial review claimed Waka Kotahi was required to, but didn’t, ensure its three-yearly batch of transport projects reduced emissions. In fact, it didn’t even estimate the emissions generated by the programme.

(To be fair, the three-year programme earmarked significant chunks of money for public transport, walking and cycling.)

The obligation to reduce emissions comes from the Land Transport Management Act, which says the national land transport programme, approved by Waka Kotahi, must “give effect” to the Government policy statement on land transport, or GPS.

“Give effect” meant “implement”, Movement argued.

The latest GPS, which came into effect in 2021, contained a strategic priority to reduce greenhouse gas emissions, which “will be achieved through action across all priorities, programmes and activity classes”.

Waka Kotahi’s counter-argument was the GPS is a policy document – “it is not a statute or a contract”. Its “content is expressed in aspirational terms”, it went on, and was “intended as a guide”.

Having climate change as a strategic priority doesn’t create a “bottom line”, Waka Kotahi said. In other words, the national land transport programme (NLTP) could still be adopted if emissions didn’t decrease.

Further, emissions reductions don’t have to be achieved by the programme alone. Other government policies can contribute, like encouraging electric car uptake, and incentivising low-emission fuels.

The Transport Minister joined the proceedings, with evidence given by the Ministry of Transport’s acting chief executive Bryn Gandy.

“The GPS sets the strategic (or policy) priorities, including by defining the classes of activity for investment and prescribing the funding bands for each class,” Gandy wrote. “It is then for Waka Kotahi, through the NLTP, to translate those priorities into investment decisions about specific projects in specific places.”

Waka Kotahi, the “expert delivery body, has a “very high degree of statutory independence”, Gandy said. While ministers bring values and priorities to influence decisions, the actual choices of individual projects are up to the agency.

“[Waka Kotahi] was required to consider the programme as a whole and balance the strategic priorities.” – Justice Christine Grice

In her decision, dated March 1, Justice Christine Grice said the wording of the GPS was not prescriptive.

“It is a policy document which sets out the results that the minister seeks to achieve. It is written in general terms covering a wide range of activities. It must be read as a whole.”

(According to the 2021 GPS, it sets both “direction and guidance”, and its short-to-medium term results, that “will be delivered by 2031”, include “reduced greenhouse gas emissions”.)

The GPS has four different strategic priorities – climate change, safety, better travel options, and improving freight connections – “none of which is paramount”, the judgment said.

Activities in the national land transport programme needed to merely “support” emission reductions.  

Justice Grice said a quantitative assessment of emissions, whether for a baseline or forecast, isn’t required. The intention, she said, was for proposed indicators in the GPS to be gathered retrospectively.

(Gandy, of the Ministry of Transport, argued the primary purpose of such indicators – such as tonnes of greenhouse gases emitted per year from land transport, and deaths and serious injuries on roads and rail – was “transparency and building a baseline of data”.)

Waka Kotahi, the judge said, “was not required to ensure that all or any investment decisions supported a mathematical reduction in emissions, but rather it was required to consider the programme as a whole and balance the strategic priorities”.

“Decision-makers are generally entitled to place different weight on input variables, material and considerations in coming to their decisions, subject to working within the legal framework.”

(Urban transport planning consultant Roger Boulter, an expert witness for Movement, said Waka Kotahi’s cost and benefit analyses put low weight on emissions, and it failed to consider alternative forms of transport.)

Climate change is an important issue for land transport, Justice Grice’s decision said. But the court’s role was limited to ensuring Waka Kotahi had exercised its legal duties. Political, social and economic choices are entrusted to ministers and public bodies.

These are the same ministers who voted for Parliament to declare a climate emergency in December 2020, perhaps driven by the country’s incredibly high per-capita emissions, and the fact we have some of the highest rates of car ownership in the world. (To be fair, they also decided to keep petrol inexpensive and emissions intensive.)

Waka Kotahi’s website states, “Our climate change action focuses on reducing greenhouse gas emissions”, as well as adapting to a changing climate, and reducing harm to the environment from land transport activities.

Yet the same public body pushed hard, and successfully, in court against a Government policy statement demanding those very reductions.

The conflict is difficult to resolve.

Judgment ‘dumbfounding’

Woodward, of Movement, says the High Court decision essentially means Waka Kotahi and local councils don’t need to implement the GPS, reducing what is possibly the most important strategic document for the country’s transport planning to an aspirational “puff piece”.

While his group appreciates the judge brings a legal lens to the decision, he describes the judgment as dumbfounding for its conservative and limiting interpretation.

“Those of us who believe that we need to reduce emissions, we need to get mode shift, we need to move to a more sustainable transport system that’s not so reliant on the private motor vehicle, we thought the GPS 2021 was a really great document. It was balanced, and it was well written.

“And we are somewhat aghast to really see the contempt that Waka Kotahi has treated it with, and the way that it’s managed to work its way around what we think is the intention. We think there’s been a clear effort to undermine the GPS.”

Woodward describes Waka Kotahi as a rogue government agency.

“They know the intent of GPS 2021 but they are hell-bent on finding ways around it,” he said.

“As an optimist, I now expect that the law and the GPS will be tightened up so that we can rein Waka Kotahi in.”

Yesterday, Newsroom asked a series of questions of Wood, the Transport Minister, and Waka Kotahi, but they didn’t respond by publication deadline.

This week’s political ructions over the next GPS, culminating in the prime minister’s U-turn, now sit in the context of what Woodward, of Movement, calls “glaring inadequacies”.

“We as a society are haggling over what do we do over this global challenge of climate change, and we are basically failing to address the over-riding cause.

“We need to do better. We need to find the right balance where we do both – where we can, sure, fix up our communities as well as reduce emissions.

“And we’re not. We’re failing on all accounts, and it’s a real tragedy.”

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