Published on: November 29, 2022
The High Court last week dismissed a judicial review challenge by Lawyers for Climate Action New Zealand ("LCANZI") to the Climate Change Commission's May 2021 advice to the government, and subsequent changes to Aotearoa New Zealand's ("NZ") nationally determined contribution ("NDC") under the Paris Agreement.
The first key takeaway from the decision is that the High Court confirmed that the Commission's advice (despite its status as advice rather than traditional government decision-making) can be subject to judicial review. This is because it is public advice with public consequences that are separate from the consequences of the Minister's ultimate decision. This will be a welcome confirmation for stakeholders who may wish to test future Commission advice in court.
Second, while the claim was dismissed in its entirety, some of the findings are likely to reverberate in future government work on climate change. Perhaps most significantly, Mallon J found that the statutory purpose of the Climate Change Response Act 2002 (as amended by the "Zero Carbon Act" in 2019) to "contribute to" the 1.5˚C global goal is "more consistent with an aspiration rather than an obligation". In effect, Her Honour found that the 1.5˚C global goal was not an independently enforceable obligation in NZ's domestic legislation (although Her Honour considered that the Minister and Commission were required to "[keep] in mind" that this was the "ultimate goal"). In commenting on the decision, the Minister for Climate Change, Hon James Shaw, noted that this suggested there was some "confusion" because when the purpose was set in 2019 the Government said that "the 1.5 threshold is sacrosanct".1 The Minister has signalled an intention to look at the way that NZ's targets are set in light of the decision.
While stopping short of finding a legal deficiency in the Climate Change Commission's approach, Mallon J did also make some observations in relation to the way that the Commission prepared its advice on the NDC that could have implications beyond the four walls of the decision. For example, the decision noted as a factual matter that LCANZI was correct that the Commission's advice on the NDC and on NZ's emissions budgets did not put NZ on track to reduce domestic net emissions by 2030 as per pathways developed by the Intergovernmental Panel on Climate Change (which is the international body responsible for assessing climate science). Again, the Minister has signalled that there may be potential to review the NDC once advice from MfE officials has been received.
The decision is available in full here. In our view, the case is an example of the potential for judicial review proceedings to influence the direction of travel on climate change, even where the claim itself does not succeed (see our previous update on recent trends in judicial review claims here). Indeed, the Minister of Climate Change himself has commented that the use of these proceedings to test the system and to make sure the government had the settings right was "very healthy".2
Should you wish to discuss the implications of the decision further, please get in touch with one of the key contacts below.
Contributors (Te Whakahaere): Mark Baker-Jones and Melanie Baker-Jones
Contributors (Russell McVeagh): Hannah Bain and Erin Gatenby
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.
Special Counsel, Litigation
Partner, Public Law and Regulation