Climate change requires proper processes to be followed by local government – High Court

Background

 
The High Court has quashed a Thames-Coromandel District Council (Council) decision not to approve the Mayor signing the Local Government Leaders' Climate Change Declaration (Declaration) (Hauraki Coromandel Climate Change Action Inc v Thames-Coromandel District Council [2020] NZHC 3228). The Court has directed the Council to reconsider its decision. This will have significant effects on the way that local government and non-governmental organisations operate when making decisions relating to climate change. In addition, the Court made some interesting observations about the importance of climate change issues in judicial review applications.
 
The Declaration was prepared by Local Government New Zealand (LGNZ) and circulated to mayors and regional council chairs throughout New Zealand for signature. It declared "an urgent need for responsive leadership and a holistic approach to climate change” and set out various commitments. The Council voted not to approve the signing of the Declaration because of its potential legal and financial implications (Decision). 
 
Hauraki Coromandel Climate Action Incorporated (HCCA) applied for judicial review of the Decision. The Council's strike out application was unsuccessful and this decision is the substantive judgment.  

Judgment and discussion

The Court found the Decision to be unlawful because the Council did not undertake a proper assessment of the climate change issues raised by the Declaration under the Local Government Act 2002 (LGA) and the Council's own Significance and Engagement Policy before it made the Decision. This included a duty to assess the degree of significance of the issues raised, identify all reasonably practicable options and assess them, and consider the views and preferences of those likely to be affected or have an interest in the Decision. While there were legal and financial implications that needed to be (and were) considered, the Court found there were also wider strategic impacts, such as:

• whether the Council should implement an action plan in relation to emissions reduction and climate resilience;
• whether and how the Council should work with its communities to understand and prepare for the physical impacts of climate change; and
• whether it should work with central government to deliver national emissions reduction targets.

 
The Court also stated:

• Despite the Decision involving matters of policy (which have traditionally been outside the scope of judicial review), "the potential and likely effects of climate change, and the measures required to mitigate those effects, are of the highest public importance". The existence of a policy dimension to the Decision did not immunise it from judicial review. 
• The Decision should be reviewed with "heightened scrutiny" because it concerned climate change, similar to decisions affecting fundamental human rights.  
• While the Declaration was undoubtedly a political document, it could give rise to legally enforceable duties on the Council because the public could legitimately expect the Council to follow the commitments that it made in the Declaration. 
• The Decision was not "unreasonable" or "irrational" in the legal sense. The financial and legal concerns the Council held supported its substantive approach. Despite this, the Council failed to follow correct procedure under the LGA and the Decision was therefore unlawful.

 
The Council is now required to make a fresh decision on whether to approve the Mayor signing the Declaration. We would expect to see the Council following the processes for making significant decisions in the LGA and the Council's Significance and Engagement Policy. 
 
The judgment is likely to be of particular interest to public decision-makers, but could have ramifications for the private sector. Some key learnings from the decision are:

• There could be a legitimate expectation at law requiring local government to adhere to commitments made in climate change declarations. Public decision-makers should accordingly be aware that declarations they sign up to could have real legal consequences even where they contain relatively high-level commitments.
• With councils being held to climate change commitments, we expect to see greater permeation of the effects of climate change declarations throughout the local government policy framework. At a practical level, this may impact areas like local government procurement and funding decisions.
• Challenges in court to government decision-making for failure to adequately take climate change into account are likely to continue, both internationally and domestically. Such challenges have generally proved more fertile ground for climate change action than claims founded in private law doctrines such as negligence (see our earlier update on the Smith litigation here). However, in both types of cases, it is now safe to assume that the New Zealand courts will not view matters relating to climate change as purely in the realm of public policy, and will likely intervene in appropriate cases.