An environmental group says a new High Court decision risks setting a precedent that could significantly harm environmentally important areas.
An artist's impression of the completed East West roading project. Graphic: Supplied / NZTA
The High Court has upheld a Board of Inquiry decision granting resource consent to the East West Link road in Auckland.
Forest and Bird is now considering asking for the case to be heard in the Supreme Court.
Plans for the four-lane arterial road connecting Onehunga to Penrose first proposed by the National government have stalled - with the Transport Agency Waka Kotahi saying the project is currently under review.
Ngāti Whātua Ōrākei and Forest and Bird opposed the road and took the agency to court.
They argued it would have significant adverse effects on significant ecosystems including rare wading bird habitat and coastal wetlands.
The crux of the case is whether regionally significant infrastructure projects must stick to national and local rules for coastlines which require areas of the environment designated as important not to be harmed.
In his decision released Friday, Justice Powell said he was satisfied the Board of Inquiry took these rules into account when granting the project consent.
Forest and Bird lawyer Peter Anderson said it was a deeply troubling decision.
He said previous court decisions seemed to have confirmed the Resource Management Act had "environmental bottom lines" that must be complied with on all occasions - particularly regarding places in the coastal environment with indigenous biodiversity.
Lawyer Sally Gepp, who took the case for Forest and Bird, said there was now a pathway through consent for infrastructure projects that was "more like a barn door than a narrow window".
Anderson said the decision set a worrying precedent nationwide.
"What it means is that the environment minimum standards aren't actually environment minimum standards because we've now got some exceptions to them.
"We had previously thought the indigenous biodiversity policies would trump infrastructure policies.
"This decision seems to reverse that and the infrastructure policies can now trump the indigenous biodiversity policies.
"That's problematic because that opens the door for projects in important ecological places where there shouldn't be."
Anderson said it potentially allowed projects that would previously have been turned down.
"So you end up with a situation where you slowly but surely degrade the natural environment in a whole range of different places, and that, I think, is a really big concern of this is the death by 1000 cuts.
"When you've got an environmental minimum standard then you know that those areas are protected, but now we're just not so sure about that."
Ngāti Whātua Ōrākei said in a statement it was disappointed with the judge's decision as it undermined the protection of coastal habitat areas including the taonga of the Manukau Harbour.
Environment Minister David Parker declined to comment while there was potential for further court action.
What's happening with the East West Link?
Waka Kotahi said in a statement the East West Link was reviewed in 2018 to ensure it aligned with the priorities of the new Labour-led government.
The agency presented an update for its board in March 2019 which recommended more investigation work be done.
It said the complexity of both the project and fitting it into other local and regional works meant that work continued.
"Once there is a clearer path for the project, Waka Kotahi will work with key project stakeholders and the community to agree [on] next steps for the project."