A new era in environmental litigation – with worrying implications for the primary sector

The High Court is increasingly being called upon to revisit first-instance decisions of Regional Councils and government departments on a variety of primary sector related matters.  No longer are submissions in a resource consent or planning process the typically sole forum for concerns around the environment to be heard.

The Environmental Law Initiative (ELI) is a registered charitable trust that was registered in 2019.  Founded by a low-profile Nelson businessman and the former CEO of the Royal Forest & Bird Protection Society Incorporated, the organisation appears to be well resourced and committed to “using the power of the law to protect the natural taonga of Aotearoa“.

Judicial review

ELI’s main approach appears to be to challenge previous first instance decisions by way of High Court judicial review.  In some cases, these challenges are occurring years after the original decisions were made and for reasons that were not thought of at the time the original application/decisions were made.

Recent reviews have included, for example, the review of various earlier decisions made by:

• Environment Southland in relation to the obligations the Council has to monitor and take action to protect wetlands, with the High Court finding in favour of ELI (Environmental Law Initiative v Environment Southland [2025] NZHC 191;
• Environment Canterbury in relation to the grant of a nutrient discharge consent for the Ashburton Lyndhurst irrigation scheme, with the High Court finding in favour of ELI (Environmental Law Initiative v Canterbury Regional Council [2024] NZHC 612);
• Environment Canterbury in relation to the grant of a nutrient discharge consent for the MHV Water irrigation scheme, with the High Court finding some errors but ultimately refusing to grant relief (Environmental Law Initiative v Canterbury Regional Council [2025] NZHC 2515). This matter is now under appeal;
• Te Mana Rauhī Taiao / the Environmental Protection Agency (EPA) around the use of Glyphosate (‘Round-up’), with the High Court finding in favour of EPA (Environmental Law Initiative v Environmental Protection Authority [2025] NZHC 3106); and
• Environment Canterbury in relation to permitted activity rules in the Canterbury Land and Water Regional Plan that relate to discharges (made under section 70 of the Resource Management Act 1991 (RMA), with his matter awaiting judgment.

Other challenges include those in relation to the use of the Wildlife Act in relation to roading projects, the setting of quote limits for crayfish, the need to protect Māui and Hector’s dolphins, the impact of bottom trawling in relation to Orange Roughy, MPI levies for fishing observers and other controls in relation to set netting to protect Hoiho/Yellow Eyed Penguins.

In all cases the focus appears to be on obtaining High Court precedent that has wider application.  It is likely that no part of primary sector is completely immune from challenge.

Environment Canterbury – sections 70 and 107

Environment Canterbury has borne the brunt of ELI’s approach, with three separate proceedings seeking to challenge the Council’s approach to how it manages discharges in the region.

This includes challenges based on sections 70 and 107 of the RMA that the High Court found prevented the grant of discharge consents (or by implication the implementation of permitted activity rules) on the basis that discharges may have significant adverse effects on aquatic life.

The High Court decisions all follow earlier Council-level decisions that were not written with potential judicial review in mind.  To expect Council-level decision makers to grapple with complex legal issues and address factual matters in a robust, judicial review proof manner is likely to be more idealistic rather than realistic.

Nevertheless, as the Ashburton Lyndhurst and MHV Water matters demonstrate, care needs to be taken when considering and explaining effects.  In both matters the first instance decision maker was quick to jump to conclusions around effects on aquatic life being significant, when this was not a fair, or the only, interpretation of the available evidence.  In the absence of an easy pathway to matter factual findings in the context of a judicial review both schemes have been left scrambing with nutrient discharge consents that have been quashed, awaiting reconsideration.

The government, worried around the wider application of the High Court’s findings on section 107, included some limited amendments to the RMA in the Resource Management (Freshwater and Other Matters) Amendment Act 2024.  The amendments do not have retrospective effect and ELI appears to have continued with judicial review of discharge related decisions.

Conclusion

ELI does not appear to be reducing its efforts.  A dedicated in-house team with the support external legal resource appears to be creating disarray for consent holders, the Council and the government alike.

The long-promised RMA reforms are likely to assist ‘around the edges’, with some proposals to limit notification processes and the extent of wider participation in RMA processes.   It is however likely that the right to seek judicial review will remain.

We are in a new era of RMA practice where judicial review is increasingly the new but unwelcome norm.

Want to know more?

If you have any questions about the contents of this article, please contact Ben Williams or Rachel Robilliard or our specialist Rural and agribusiness team.

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