23 Nov 2022

High Court rules against climate change action case over commission's advice to government

6:59 pm on 23 November 2022
James Shaw

Climate Change Minister James Shaw says he has always regarded the commission's advice as "exceptionally high quality". Photo: RNZ / Samuel Rillstone

The High Court has dismissed a case by a group of lawyers claiming advice given to government is too weak to effectively tackle climate change.

The 350-strong Lawyers for Climate Action NZ argued the Climate Change Commission's roadmap for cutting emissions was inconsistent with international agreements.

They hoped to force a do-over of the advice, asserting the maths was wrong and the advice inconsistent with the global goal of limiting emissions to 1.5 degrees.

The High Court dismissed their case.

The commission's job was to make recommendations to Minister of Climate Change James Shaw but the government was not duty-bound to follow that advice. However, it does inform emissions budgets set by government.

Commission chairperson Dr Rod Carr said in a statement it would be reviewing the decision in detail "to understand if there are any implications for our work programme and our future advice".

"We stood by our advice through the court process and maintained that claims we are not sufficiently ambitious are wrong and misrepresent our advice."

Shaw said New Zealanders could now have confidence in plans to tackle climate change.

"I have always regarded the advice it has provided the government as exceptionally high quality, based on rigorous science and expert analysis. Today's ruling confirms that," Shaw said.

"Having just returned from COP27 in Egypt, where progress was as frustratingly slow as ever, my focus is now squarely on the need for urgent domestic action to cut emissions, limit warming, and prepare for the climate impacts we cannot avoid. "

The case had highlighted some potential points of confusion in the way targets were set, he said, and he would be looking into that.

The context

The Paris Agreement aims to tackle climate change on a global level by, among other things, aiming to limit warming to 1.5 degrees celsius above pre-industrial levels.

The New Zealand government therefore amended the Climate Change Response Act 2002 to contribute to this global effort.

It set a net zero emissions target by 2050, introduced requirements to set budgets for domestic emissions, and set up the Climate Change Commission to advise the minister.

The commission published its first advice in May 2021.

More than 350 lawyers came together as Lawyers for Climate Action New Zealand (LCANZ) to advocate for New Zealand to meet its commitments under the Paris Agreement.

They filed court proceedings in July last year, seeking a judicial review of that advice.

The group's main issues were:

  • The recommended emissions budgets did not meet the commission's own calculation of what was needed to limit warming to 1.5C
  • The accounting methods were inconsistent with the Climate Change Response Act, and made the budgets look more ambitious than they really were
  • The calculations for the country's nationally determined contribution under the Paris Agreement make a logical and mathematical error, understating the required reductions in greenhouse gas
  • The commission is relying on the uncertain prospect of Aotearoa New Zealand being able to pay other countries to reduce their emissions, instead of making domestic reductions at the level required to meet the Paris Agreement obligations

The court's findings

High Court judge Jillian Mallon found the commission "did not intend to make a direct mathematical comparison" between New Zealand's response, and the pathways modelled by the IPCC consistent with the 1.5 degrees global effort.

While the commission could have made this more clear in its advice, the minister to whom the advice was given correctly understood the advice, she said.

She also found New Zealand's contribution to the 1.5 degree limit was "more consistent with an aspiration rather than an obligation".

As the commission was not explicitly tasked with meeting a particular target by 2030, nor to follow the IPCC's modelled pathways, it had not failed to deliver.

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