New Zealand’s first climate change lawsuit rejected by High Court

by Rebecca Macfie / 02 November, 2017

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Sarah Thompson.

But Sarah Thompson's case has added to the pressure for tighter climate targets. 

Climate litigant Sarah Thompson has failed in her bid for a judicial review of the previous Government’s emission-reduction goals, but her case has nevertheless broken new ground in the fast-evolving field of climate law.

Thompson went to the High Court earlier this year to challenge the National-led Government’s two key climate goals – a 50% reduction in greenhouse gas emissions by 2050 and a 30% reduction by 2030 (compared with 2005 levels). 

She argued the 2050 goal, set under the Climate Change Response Act, should have been reviewed and tightened after the Intergovernmental Panel on Climate Change published its latest scientific assessment in 2014.

Justice Jillian Mallon’s 75 page decision, released on Thursday afternoon, agreed with Thompson that the 2050 target should have been reviewed in light of the new 2014 evidence. Former Climate Change Minister Paula Bennett “was required to turn her mind” as to whether there had been any material change between the 2014 IPCC synopsis report and the previous one, published in 2007.

However, the recent general election and formation of a Labour-led coalition Government meant the matter had been overtaken by events. The new Government has announced it intends to set a new 2050 target of carbon neutrality, and Justice Mellon said it was therefore unnecessary for the court to order any action.

The second part of Thompson’s lawsuit, seeking a judicial review of the former Government’s national climate goal under the Paris climate accord – called a “Nationally Determined Contribution”, or NDC – was rejected by the court.

Thompson argued the NDC target of a 30% reduction in greenhouse gases by 2030 fell well short of the deep cuts needed to avoid dangerous climate change. She also alleged the economic modelling relied on in setting the target did not take proper account of the enormous economic cost of unmitigated climate change.

Thompson further argued that the Government had failed to give proper consideration to the position of the low-lying Tokelau Islands, which are part of New Zealand and which are highly exposed to rising seas. So vulnerable are the islands that the former Government was obliged to consider a target that was consistent with a maximum temperature rise of 1.5°C, she argued.

Judge Mellon largely came down on the side of the former Government in relation to these arguments. Neither the UN Framework Convention on Climate Change nor the Paris climate accord set out the criteria for how a country should set its NDC targets, nor how it ought to assess the costs of the measures it intended to take. The Paris agreement set up a process of five-yearly reviews of national targets, and New Zealand is “free to review its 2030 target … as it considers it appropriate”.

Climate change minister James Shaw has described the former Government’s 2030 target as “inadequate” and said this week he is looking to review it next year to ensure it is consistent with the longer term goal of carbon neutrality.

But the wider significance of Thompson’s litigation lies in the body of the ruling. Crucially, Justice Mellon has confirmed that the courts have a role to play considering matters of climate policy, and that it is not a “no go” area that must be left exclusively to the executive arm of government. Having considered the raft of high-profile international climate lawsuits, such as the ground-breaking Urgenda case in the Netherlands – where the court ordered the Dutch government to tighten its emission reduction targets – Justice Mellon said these cases showed that it “may be appropriate for domestic courts to play a role in Government decision making about climate change policy”.

“The courts have not considered the entire subject matter is a no go area, whether because the state had entered into international obligations, or because the problem is a global one and one country’s efforts alone cannot prevent harm to that country’s people and their environment, or because the Government’s response involves the weighing of social, economic and political factors, or because of the complexity of the science. 

“The courts have recognised the significance of the issue for the planet and its inhabitants and that those within the court’s jurisdiction are necessarily amongst all who are affected by inadequate efforts to respond to climate change. 

“The various domestic courts have held they have a proper role to play in Government decision making on this topic, while emphasising that there are constitutional limits in how far that role may extend.” 

Justice Mellon also confirmed that it was “mandatory” for the New Zealand government to consider the position of the Tokelauans in deciding its response to climate change, given the Tokelau Islands’ dependence on New Zealand. However this did not mean emission reduction targets needed to be consistent with a maximum temperature rise of 1.5°C.

Thompson said on Thursday she would appeal the decision declining her bid for judicial review, saying she intends to hold Shaw to his word on tightening New Zealand’s climate ambition.

“The new Government’s net zero carbon ambitions for 2050 are great, but time is not on our side. What we really need now is rapid action – we need to know when we’re going to change the 2030 target and how we’re going to get there… We need to put tangible steps in place, including a far more ambitious 2030 target, to transform into an emissions-free country in the next 30 years.

“This means aligning our target with the best climate science, so we become a world leader on climate action. The ball is in the new minister’s court.”

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