High Court Critiques ECan’s Nitrate Discharge Policies Amid Crisis

The High Court of New Zealand has determined that Environment Canterbury (ECan), the regional council, made a significant error by permitting certain farming operations to discharge nitrates and other pollutants without the necessary resource consents. This ruling comes at a time when Canterbury faces escalating concerns over nitrate contamination in its waterways, which poses risks to both human health and the environment.

In a judgement released on October 23, 2023, the court addressed a challenge by the Environmental Law Initiative (ELI), which sought to invalidate a rule that classified some agricultural discharges—such as nitrates and phosphorus—as permitted activities. The court stopped short of mandating a change to the rule but confirmed that ECan’s rule-making process did not comply with legal requirements outlined in the Resource Management Act (RMA).

Legal Oversight and Environmental Impact

Justice Mander identified that ECan failed to adequately consider Section 70 of the RMA while drafting the controversial rule, known as Rule 5.63 (Incidental Nutrient Discharges). This section mandates councils to evaluate potential significant adverse effects on aquatic life when establishing regulations. Dr. Matt Hall, ELI’s research and legal director, expressed that the rule had entrenched conditions for intensive farming, exacerbating the nitrate pollution crisis already affecting the region.

ELI argued that the rule was unlawful and outside the council’s authority, claiming it undermined essential environmental safeguards by allowing discharges without sufficient evidence that farmers would not exceed minimum pollution standards. As a result, this practice facilitated further intensive farming in catchments already under significant stress, thereby increasing pollution levels.

Despite ELI’s request for the court to remove the rule and issue other legal declarations, the court declined to do so. Justice Mander noted that records from ECan’s regional plan hearings did not support the conclusion that severe effects, particularly on aquatic ecosystems, would not arise from the rule. He emphasized that ECan had been “put on notice” during hearings due to the evident controversy and differing expert opinions regarding the health of Canterbury’s waterways.

Systemic Issues and Future Accountability

The ruling raises serious concerns about the effectiveness of ECan’s planning processes. Dr. Hall pointed out that this case is part of a broader pattern of problematic decision-making by the council. Last year, another High Court decision quashed a discharge consent granted to the Ashburton Lyndhurst Irrigation Ltd (ALIL) irrigation scheme, and earlier this year, the court found ECan made a material error in granting consent to the Mayfield Hinds Valletta (MHV) irrigation scheme.

Dr. Hall remarked, “We’ve taken three cases now relating to ECan’s decision making, each revealing issues with its application of the law. This highlights a systemic failure concerning environmental outcomes.” He stressed that the court’s findings should serve as a crucial reminder for ECan to adhere to its statutory responsibilities.

While the court found that ECan’s failure to comply with the RMA typically would lead to a review of the rule, a procedural limitation under Section 83 of the RMA prevented this. This section permits challenges to a regional plan only within three months of its implementation. Despite the rule’s establishment over a decade ago, it remains in effect and is central to the ongoing nitrate crisis affecting residents across Canterbury.

Both ELI and ECan expressed uncertainty about the number of individuals impacted by the existing rule, given that current discharges do not require consent. ECan argued that changing the rule after nearly eight years could impose significant burdens on farmers, who might face lengthy and costly resource consent processes.

In his decision, Justice Mander concluded that Section 83 barred ELI’s challenge. He noted that even if this were not the case, the legal proceedings revolved around an administrative decision made over a decade ago, within a regulatory framework that has since evolved with specific sub-regional rules for at-risk catchments.

Dr. Hall emphasized the need for tangible changes to activities contributing to pollution, stating, “We cannot maintain a situation where the council has clear limits established by law but fails to implement necessary changes.” He underscored that accountability and adherence to existing laws are critical for effective environmental governance.

Recent data from Stats NZ indicates that Canterbury has the largest area of irrigated agricultural land in New Zealand, encompassing 480,000 hectares and accounting for 70 percent of the country’s total dairy farming irrigation. Alarmingly, the council’s annual groundwater testing revealed increasing nitrate levels in 62 percent of 300 test wells. In September 2023, ECan narrowly voted to declare a nitrate emergency, reflecting the urgent need for action in the face of a mounting environmental crisis.

As this situation unfolds, stakeholders are closely monitoring ECan’s next steps and the broader implications for environmental policy in the region.