CUMULATIVE EFFECTS AS YOU CAN SEE Nitrates discharges

CUMULATIVE EFFECTS

AS YOU CAN SEE……………………………. . Ø Nitrates discharges into that stream from one cow and the erosion caused by it trampling the stream bank, is an effect. Ø Nitrogen discharges from, and stream trampling by, a hundred cows are a cumulative effect. Ø Nitrogen discharges from 10 farms alongside that stream, and discharges from and stream trampling by, hundreds of cows on each farm, are a significant cumulative effect.

RMA DEFINITION OF EFFECT (d) RMA – the term “effect “includes “Any cumulative effect which arises over time or in combination with other effects”

CUMUATIVE EFFECTS NOT A SEPARATE CLASS OF EFFECTS Ø RMA says effects “ include” any cumulative effects, but cumulative effects are not a separate class of effects. Ø The whole world is subject to multiple causes and multiple effects at the same time. Ø So is the environment within which we live.

DEFINITION OF CUMULATIVE EFFECTS US Department of Commerce defines cumulative effects as “The impact on the environment which results from the incremental effects of the action when added to other past. present and reasonably future actions regardless of what agency……or person undertakes such other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time. ”

NICE AND CLEAR That seems clear enough Cumulative effects are: • effects which are added to other effects, • whether past present or reasonably foreseeable, • no matter who caused them or when

THE DYE IS CAST But not according to the Court of Appeal , who in 2001 in Dye v Auckland Regional Council (2002) 1 NZLR 337 said that : “A cumulative effect is concerned with things that will occur rather than something that may occur, that being the connotation of a potential effect”

THE DYE IS CAST And: “The concept of cumulative effect rising over time is one of a gradual build up of consequences. The concept of combination of other effects is one of effect A combining with effect s B and C to create an overall composite effect D. All of these are effects which are going to happen as a result of the activity which is under consideration. ”

SO NOT SO CLEAR THEN This seems at odds with the other definition. Are cumulative effects only effects which are definitely going happen because of this activity, not all the other many activities others are, or may carry out , which interact with it? Because one cow discharges nitrates into a stream, and tramples it, doesn’t mean others are going to do so. Might be the only cow that lives by that stream.

DYE IN DOUBT Justice Cooper in the High Court had his doubts about Dye. A few years later in 2006, in Gould v Rodney District Council (2006 NZRMA 217 he said: “ I consider that all that was said in Dye was that an effect that may never happen and which, if it does , will be the result of some activity other than the activity for which consent was sought, cannot be regarded as a cumulative effect. ”

DYE IN MORE DOUBT The Environment Court had already its doubts too. In Cashmere Park Trust v Canterbury Regional Council (C 48/2004) it said: “the statements in Dye about cumulative effects appear to be obiter and they are inconclusive in any event”

DYE IN CUMULATIVE DOUBT And in Emerald Development Ltd v North Shore City Council (A 31/2004) the Environment Court said it was concerned that unless all cumulative adverse effects on the environment were considered it would not be possible to decline a consent when what it called a “saturation point” was reached. The Court said “ it must be that the quoted comment in Dye should be read as being confined to the facts of that case, and not being intended to be of universal application in any case where cumulative effects are to be considered. Read in this confined way, the common – sense and plain meaning of “cumulative effect” and the purpose of the Act are undamaged. ”

MORE CRITICISM OF DYE Recently, in RJ Davidson v Marlborough District Council (2016 NZEnv. C 81), the Environment Court has attempted to put the final nail in the coffin of DYE, saying : “Dye does not take into account ……. . the reality that all stressors, regardless of who or what causes them, cause “cumulative effects on ecosystems: ” and “The Dye view of the world is rather static - in reality this seconds events are the next seconds environment. The past effects of stressors- the accumulated effects - have become and are continually becoming, part of the environment which is the setting of any proposal. ”

ACCUMULATIVE EFFECTS On appeal, the High Court (RJ Davidson Family Trust v Marlborogh DC) didn’t like the term “accumulative effects”, agreeing that it was “an unhelpful gloss on the statutory language of the RMA and was outside the statutory definition of effect”, and added an “unnecessary complication. ” However, the High Court didn’t differ from the Environments Courts references to all stressors needing to be taken into account, or its criticism of Dye’s e view o if the world as “static. ”

THE DEATH OF DYE In the recent case about the Horizons One Plan and nitrogen discharges, Wellington Fish & Game Council and EDS v Manawatu-Wanganui Regional Council (2017 NZEnv. C 37), the Environment Court cited, apparently with approval, the US Department of Commerce definition of “cumulative effects” and said “ …. . the suggestion by the Court of Appeal in Dye that cumulative effects are concerned with something that will occur, and effects which are going to happen as a result of the activity which is under consideration is distinguishable. The relevance of Dye beyond the fact scenario of precedent effects caused by a land use consent has been placed in doubt by subsequent decisions. ”

ASSESSMENT OF CUMULATIVE EFFECTS ESSENTIAL The Court there also said a consent authority must carry out an assessment of cumulative effects, even if its hard to do. The Court accepted that the fresh water environment is complex, and that contaminants from a discharge such as nitrogen are physically mixed and the effects combine with those from other sources, but said : “ Even if there are difficulties undertaking cumulative effect assessments at the catchment level such an assessment can, and should, be undertaken. ”

NO DE MINIMIS And no effect is too small to be a cumulative effect EDS v Taranaki RC (A 184/02), although the Stratford Expansion project was assessed as contributing approximately one millionth of the total annual global emissions, it was accepted that the emissions should be taken into account since all greenhouse gas emissions contribute cumulatively to the same global atmosphere, and every small contribution makes a difference.

CONCLUSION So despite Dye, I’ll go with the US Dept of Commerce definition and conclude that cumulative effects are those effects : • Which result from the incremental effects of the activity; • When those are added to other past present and reasonably foreseeable future actions; • Whoever has, is or will carry out those actions; and • However individually minor the effect is.

FURTHER READING Acknowledge & recommend Judge Jackson’s paper “Predictions in an Uncertain World – Assessing Effects under the Resource Management Act 1991”, presented to the NZLS Continuing Legal Education Programme, October 2016