Movement v. Waka Kotahi

Summary:

The respondent, Waka Kotahi, is New Zealand’s national transport agency. The petitioner challenged a decision by Waka Kotahi to approve a National Land Transport Programme 2021-2024 (NLTP), a three-year plan which sets out how the agency will allocate its resources. Movement argued that the approval of the plan was unlawfully inconsistent with New Zealand legislation (the Land Transport Management Act 2003 (LTMA)), as well as New Zealand’s Government Policy Statement on land transport, another regulatory instrument which is legally binding on Waka Kotahi. Movement consequently sought directions from the Court for the NLTP to be reconsidered, as well as guidance to inform the preparation of future NLTPs. The Court rejected all three of the applicant’s causes of action discussed below, and upheld the NLTP.

In the first action, Movement argued that Waka Kotahi was required to ensure that the NLTP contributed to the purposes of the LTMA, and gave effect to the GPS. Movement argued that this included an obligation to ensure that the NLTP would reduce emissions; and that the NLTP approved by Waka Kotahi failed to do so. In particular, Movement argued that this failure violated the purpose of the LTMA, which was “to contribute to an effective, efficient, and safe land transport system in the public interest”; and further, that it violated directives in the GPS to plan for “a reduction in greenhouse gas emissions … through action across all priorities, programmes and activity classes”. The Court rejected the claim that the LTMA’s purpose implied an obligation to consider “environmental benefits” or “climate change”, relying in large part on recent amendments to the statute. The Court also found that the NLTP complied with the GPS directives to support emissions reductions. The first cause of action was consequently rejected.

Secondly, Movement argued that Waka Kotahi’s decision-making was procedurally deficient. Specifically, Movement argued that the priority-setting methods used in the preparation of the NLTP failed to assess whether the overall effect of the NLTP’s investment decisions would achieve the emissions reduction target recommended by New Zealand’s Climate Change Commission (CCC). Movement argued that this was inconsistent with the GPS, which requires real-term reductions in greenhouse gas emissions. Instead, Movement argued that Waka Kotahi was required to make a quantitative assessment to determine the baseline quantum and trajectory of transport emissions; understand how different components of the land transport system would contribute to the reduction of emissions contemplated by CCC; make an “ambitious assessment” as to which reductions are required under the NLTP; assess the carbon emissions of activities in the 2021-2024 period; and ultimately, ensure that the NLTP’s contribution to emissions reductions was consistent with the magnitude of emissions reductions contemplated by the CCC. The Court found, however, that Waka Kotahi was not required under the LTMA or GPS to undertake either a baseline or predictive quantitative assessment of emissions. Instead, it cited precedent that “courts have cautioned against requiring decision-makers to carry out a quantitative analysis in the absence of express directions to do so”, and that Waka Kotahi had satisfied its legal obligations by undertaking qualitative assessments as to how the NLTP would give effect to the GPS “It 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”. In this case, Waka Kotahi had relied on experts and sufficiently addressed climate change as a strategic priority.

Thirdly, Movement argued that Waka Kotahi had committed an error of law by failing to show that it had considered alternative courses of action that would meet the objectives set out in the GPS. This was because Waka Kotahi was a “funding applicant” for the purposes of the GPS, and was accordingly required to show that “they have considered alternatives and ‘how they compare’” in achieving various objectives identified in the GPS. The Court found that this obligation applied only in funding applications made by Waka Kotahi, and not in the preparation of a NLTP.

At Issue: Whether, in its preparation of a National Land Transport Programme (NLTP), New Zealand’s national land transport agency had lawfully complied with its procedural obligations under national legislation and high-level policy, including an alleged obligation to put in place quantitative measures for emissions.