Denis Tegg: Regional Transport Plan Will Increase Emissions And Is Thus Unlawful

Written By: - Date published: 6:05 am, June 28th, 2021 - 26 comments
Categories: climate change, public transport, transport - Tags: , , , ,

  1. Commentary from Denis Tegg, Waikato Regional Councillor (opinions his own). Cross-posted from Tegg Talk.

Waikato Regional Council (WRC) has approved a transport plan which assigns just 3% of its 10-year budget to walking and cycling, and only 5% to public transport. This must inevitably increase overall transport emission pollution in the region.  In my opinion the law requires the plan to reduce transport emissions to achieve consistency with central government transport policy.  If emissions will rise under the plan this makes the plan unlawful and places WRC at significant risk of a successful legal challenge.

Because of these concerns four other regional councillors supported my proposal to refer the plan back to the regional transport committee for reconsideration.  The majority view was to discount the inconsistency with government policy and to approve the plan without modification.

This article in Stuff sets out some of the issues raised in debate at the Council meeting on 24 June.

Critical to the decision is the 2021 Government Policy Statement on Land Transport (GPS). Before lodging the plan with the council the transport committee must be satisfied the plan is consistent with the GPS.

The GPS has climate change as one of four strategic priorities. The Primary Outcome of the Climate Change Priority is

“Investment decisions will support the rapid transition to a low carbon transport system and contribute to a resilient transport sector that reduces harmful emissions.”

The GPS was in draft form from early 2020 and the final version was published late in 2020 when the transport plan was still under development. The 2050 target to keep average global temperatures below 1.5 degrees C was included in the Climate Change Response Act in 2019 well before the plan was developed (and with support of 119 out of 120 MPs.) I therefore reject the excuse that Government priorities changed after the plan had largely been formed.

Three out of four priorities in the GPS require a reduction in emissions as an outcome.

Government Policy Statement on Transport – Strategic Priorities

The critical legal issue is whether the transport plan is “consistent with” the GPS.

In my opinion a 10-year plan that has investment decisions with less than 10% of its budget devoted to walking, cycling and public transport cannot possibly support a rapid transition to a low carbon transport system.  Also, on any rational and fair evaluation, this paltry investment in emission reduction activities cannot conceivably achieve an overall reduction in GHG emissions.

On both counts the transport plan is inconsistence with government transport policy.

The only conclusion I believe you can come to is that the plan is thus unlawful and at significant risk of a legal challenge.

Apart from lack of consistency with the GPS, Lawyers For Climate Action have raised many other legal issues with the Auckland transport plan which may equally apply to the Waikato plan. These include –

  • Under land transport law the plan must be in the “public interest”. A plan which increases emissions may not be in the public interest and may be deemed unreasonable by the courts
  • WRC’s signing of the LGNZ Climate Change Declaration and other actions may have created a legitimate expectation that WRC will take strong action on climate change
  • There are principles in the Local Government Act 2002 that WRC “should take account of the interests of future as well as current communities”
  • There are obligations under Te Tiriti o Waitangi to preserve and protect Māori lands and waters against the effects of climate change.. by cutting emissions.
  • A plan that does not reduce transport emissions is inconsistent with the right to life under the New Zealand Bill of Rights Act 1990.

I am disappointed that the Council has not followed through on the climate action commitments it made when it signed the Local Government Climate Change Declaration and the expectation of meaningful climate action when the Climate Action Committee was created this triennium.

In my opinion the majority view has not paid sufficient attention to the clear legal requirement to reduce transport emissions and has discounted the significant risk of a successful judicial review and the high costs to ratepayers which could arise from court action.  I argued my case but could not secure a majority of votes.   That is the democratic process in action.

26 comments on “Denis Tegg: Regional Transport Plan Will Increase Emissions And Is Thus Unlawful ”

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  1. Ad 1
    28 June 2021 at 9:12 am

    Simon Wilson in the NZHerald does the same this morning for the Auckland RLTP. All very well to have a crack at each council, but it's only partly their fault.

    NZTA has made a complete dog's breakfast of this one, and it's pissed off every Council up and down the country.

    MoT and Treasury are going to have a shit time trying to reconcile all the last minute NZTA changes into the full NLTP.

    And the result will be nothing like the Government's carbon-decreasing intent that they released just a month ago.

    This is truly and deeply rooted.

    • Sacha 1.1
      28 June 2021 at 9:42 am

      Simon's article (paywalled – maybe someone can summarise/excerpt it for us): https://www.nzherald.co.nz/nz/simon-wilson-auckland-transports-day-of-shame/CVKSYHBYY2EHPKFX4TZ6LSJUAI/

    • weka 1.2
      28 June 2021 at 9:48 am

      Why can’t the Minister intervene?

      • Sacha 1.2.1
        28 June 2021 at 9:56 am

        Neoliberal policy/operations structure. Minister might have to do something to overturn that if the threatened law cases against each council do not produce quick enough results.

        • weka 1.2.1.1
          28 June 2021 at 10:08 am

          So it’s up to citizens and community groups to take councils to court rather than the government having its own departments set the pace and direction of change?

          • Sacha 1.2.1.1.1
            28 June 2021 at 10:12 am

            Unless the rest of cabinet are embarrassed into action.

          • Ad 1.2.1.1.2
            28 June 2021 at 10:35 am

            Citizens have already done their job with honest democratic engagement through the RLTP's. Not even litigation will change this – unless it goes all the way to the Supreme Court and they spell out whether one legislation conflicts with another.

            That's hundreds of thousands of dollars, and another two years wasted getting through the High Court, Appeal Court, then Supreme Court, then more policy work and then a Cabinet decision and then someone maybe doing something.

            • Chris 1.2.1.1.2.1
              28 June 2021 at 1:44 pm

              "…unless it goes all the way to the Supreme Court and they spell out whether one legislation conflicts with another."

              Why must it take the SC to say this? In any case, I thought that when two pieces of legislation purport to conflict that a court must still adjudicate.

              • Ad …
                28 June 2021 at 2:05 pm

                Because Crown Law will appeal it all the way, as they always do when legislation appears to conflict with each other.

      • Ad 1.2.2
        28 June 2021 at 10:00 am

        The Minister guides the process through the National Policy Statement on a variety of outcomes, which in turn direct the silos of funding within the NLTP.

        There are tens upon tens of thousands of budget lines that are consulted upon. Books and books of them.

        It's the Regional Council's job to integrate all the wishes of District Councils to make sense of the priority into each category.

        It would be totally unreasonable for the Minister to try and make sense of that volume of detail.

        • weka 1.2.2.1
          28 June 2021 at 10:07 am

          I meant getting NZTA on board with climate action

          • Ad 1.2.2.1.1
            28 June 2021 at 10:32 am

            See above. NZTA react to the funding silos through their Letters of Expectation, and the funding comes through the NLTP which in turn is directed through the Government Policy Statement.

            NZTA is but one of many major entities that are nowhere near reconciled to the climate change legislation.

            The Electricity Authority is another.

            You can't just keep hiring and firing Board members thinking you'll get a different outcome when the entire set of mechanisms just don't work.

            • weka 1.2.2.1.1.1
              28 June 2021 at 11:05 am

              I was thinking more ministerial directive than firing people, but should alignment with the govt on climate be part of the job?

  2. Ad 2
    28 June 2021 at 1:34 pm

    Good to see 14 year olds taking climate change protest straight to the cars of Dunedin's elite St Clair esplanade.

    https://www.nzherald.co.nz/nz/dunedin-protest-becomes-heated-as-teen-blocks-petrol-cars/F7RQMYD7ACRPAHLM36IIHOQOMM/

  3. Jenny how to get there 3
    28 June 2021 at 1:52 pm

    "If emissions will rise under the plan this makes the plan unlawful and places WRC at significant risk of a successful legal challenge."

    Denis Tegg

    "The majority view was to discount the inconsistency with government policy and to approve the plan without modification."

    Denis Tegg

    These wilful criminals need to be sued and protested against for all they are worth.

    https://thestandard.org.nz/open-mike-28-06-2021/#comment-1800291

    • Ad 3.1
      28 June 2021 at 2:11 pm

      The pressure is building, sure.

      But when 4,300 people sign petitions against a mere trial for taking back some road space, and do a march up the street, and the Labour Councillor says 'yeah fair enough', you know that you are at the very edge of your social license as a Council.

      https://www.stuff.co.nz/national/125580683/backlash-and-traffic-woes-sees-partremoval-of-henderson-safer-streets-trial

      And this is in the centre of Henderson, where there is really high quality public transport infrastructure, plenty of high density living, tonnes of parking both inside the massive mall and without, plenty of amenity put into the town centre over decades….

      … but people oppose anything taking away the convenience of the car.

      • RedBaronCV 3.1.1
        28 June 2021 at 3:14 pm

        Maybe we really need to prioritise a green EV car fleet. Local conversion? Putting in private forms of transport that no one really seems to want to use leaving a lot of empty space is just hardening a lot of attitudes in the worse possible way. And the Waikato has a lot of moderate well spread communities so the density must be low for efficient public transport.

        Mainly we need to just stop using fossil fuels. Traffic congestion if it is EV’s – by itself doesn’t cause global warming.

  4. Jenny how to get there 4
    28 June 2021 at 2:31 pm

    These wilful criminals need to be sued and protested against for all they are worth.

    Waikato coal exploration permit for Bathurst Resources branded hypocritical

    ….The coal exploration permit was granted to BT Mining Ltd in September 2018. Its parent company is Wellington-based Bathurst Resources, a major player in the New Zealand coal mining industry.

    ….. with the Government's Zero Carbon Bill announced last month – which sets a target of zero net emissions by 2050 – the coal mining exploration permit is being criticised as a contradiction.

    https://www.newshub.co.nz/home/politics/2019/06/waikato-coal-exploration-permit-for-bathurst-resources-branded-hypocritical.html

    Forest & Bird launches petition seeking end to new coal mines

    SUN, JUN 27 • SOURCE:

    "The simple fact is we do not have the capacity to mine more coal and burn more coal if we're going to get to no more than 1.5 degrees of warming," Hague said.

    "It's very clear we have to stop using fossil fuels and we have to do it now."

    Hague argued allowing such development to take place impacts not just the amount of fossil fuels released into the atmosphere, but also the local environment….

    https://www.tvnz.co.nz/one-news/new-zealand/forest-bird-launches-petition-seeking-end-new-coal-mines?fbclid=IwAR3-xaNKI8wh2fOb3JidPMfrpiZiAl5FRXxP1VCjWlr0S74W0XtYpA_NuBQ

    • Ad 4.1
      28 June 2021 at 3:36 pm

      RMA legisltion v Carbon legislation

      Effects-based v outcomes- based

      Yet another mess

  5. tc 5
    29 June 2021 at 10:21 am

    Between WDC, WRC and all the fiefdom councils like Hamilton etc into the mix we've got a total clusterF going on.

    This is just the waikato section, at future generations expense.

  6. Jenny how to get there 6
    29 June 2021 at 4:35 pm

    Waikato Regional Council (WRC) has approved a transport plan which assigns just 3% of its 10-year budget to walking and cycling, and only 5% to public transport….

    Denis Tegg

    So, what would it take to make the WRC transport plan more compliant and in-line with the 2021 Government Policy Statement on Land Transport (GPS).?.?

    To balance the transport spending plan, I would suggest that at least one big ticket item to reduce climate change needs to be included in WRC Transport Plan.

    What could it be?

    Any suggestions, anyone?