Judicial review of climate change decisions: key themes from recent key cases

Judicial review claims are becoming increasingly common in New Zealand as a way of testing government decision-making on climate change, reflecting similar trends overseas.

Some recent cases highlight the potential for judicial review to drive outcomes in the climate space. For example, a group of NGOs has successfully challenged the UK Government's Net Zero Strategy, with the result that it now needs to be revised by March 2023¹. Even where a claim is unsuccessful or does not proceed to trial, the fact or threat of a judicial review proceeding can contribute to a change of direction by a decision-maker and may ultimately contribute to changes to emissions pathways².

It is also clear, however, that judicial review is not a silver bullet where a party is unhappy with the direction of travel on climate change, and this is also reflected in recent cases.

Key themes emerging from recent cases include:

• The need for parties to judicial review proceedings to carefully scrutinise the relevant legislative scheme to identify any potential errors in the decision-making approach. Such errors can not only lead to public decisions being overturned on review, and a finding that a decision-maker has failed to correctly apply the statutory scheme, but also in practice can result in a different substantive outcome (such as in the challenge to the UK Government's Net Zero Strategy).
• That where the legislative purpose does not relate to climate change, and climate change considerations are not referred to in the legislation, it is likely to be more difficult to establish that a decision-maker erred by not having regard to climate change matters.
• While arguments in relation to the principles of the Treaty of Waitangi and tikanga have not to date led to climate change cases succeeding, we see considerable scope for such arguments to influence judicial decision-making in future cases.
• The fact that a decision involves a "polycentric" issue such as climate change does not insulate the decision from judicial review, but the court's role will be limited to applying the law and the court will not substitute itself for the executive branch of government in making policy decisions. Relatedly, an initial judicial indication that climate change warrants "heightened scrutiny" by the courts in the judicial review context has not been followed in subsequent decisions.  
• While not observed in New Zealand to date, we anticipate that in time we will see “just transition" cases emerging in New Zealand consistent with developments overseas. For example, cases could arise challenging any regulatory action that impacts the ability for land returned under Treaty of Waitangi settlements to be used to its economic potential. 

Further detail of recent cases and exploration of the key themes is set out in the pdf at the link below.

Judicial Reviews of recent climate change cases (pdf).

Special thanks to Annabel Shaw of Te Whakahaere for her review and helpful comments.