Regional Transport Plan Will Increase Emissions And Is Thus Unlawful

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.