A council’s decision not to join a nationwide climate emergency declaration is overturned in the High Court, which ruled it did not consider the serious implications or consult the public.
The High Court has quashed a decision by the Thames-Coromandel District Council for its mayor not to sign a declaration of climate emergency endorsed by more than 60 other cities and districts.
Justice Matthew Palmer has ordered the council to reconsider its April 2019 decision not to approve Mayor Sandra Goudie signing the Local Government Leaders’ Climate Change Declaration.
His intervention follows an action for judicial review taken by Hauraki Coromandel Climate Action Inc, (HCCA) which argued the council was wrong to have stopped her signing.
Justice Palmer agreed, finding the council relied on one fear raised in a report by the Mayor that signing the declaration could create legal obligations on the council for climate change action when it also had to analyse wider issues and consider consulting the public.
“The council did not do the analysis or consider consultation with the district, as required by law.”
He found: “Decisions about climate change deserve heightened scrutiny on judicial review, depending on their context” and in his decision declared: “The evidence about climate change is not disputed so I do not need to traverse it fully. However I accept the expert evidence demonstrates unequivocally that anthropogenic climate change is occurring.”
This could lead to rising sea levels at an accelerating rate, increased ocean temperatures, risks of severe impacts on biodiversity and effects on food growing from high temperatures and humidity.
The Thames-Coromandel District Council accepted its district was likely to be materially affected by climate change, to a degree not yet clear, in terms of storm surges and coastal inundation, erosion, the balance of fresh and salt water on the coasts, saline water in aquifers and fire and drought risks, severe weather events and acidification of the Firth of Thames.
When members of the public urged the council in 2019 to approve the mayor signing the local government leaders’ declaration – which committed councils to ambitious action plans to reduce greenhouse gas emissions and support resilience – the council instead opted to receive a report from the mayor about the declaration but not approve her to sign it. It said it would continue to take its own action with robust decision-making in response to climate change.
The council tried at an earlier High Court hearing to have the HCCA challenge struck out, but failed.
Justice Palmer ruled the declaration was “undoubtedly a political document both domestically, and in the lead-up to the COP 21 [UN climate meeting] internationally.
“But political documents adopted by public decision-makers can have legal effects in some circumstances, depending on their wording”… “and a legally enforceable legitimate expectation is possible.”
The council’s lawyer suggested the declaration was “little more than political rhetoric” and the council’s move to simply “receive” a report on the matter was not reviewable by the judge.
But Justice Palmer disagreed: “The evidence, including the council’s own documents, establishes that the potential and likely effects of climate change and the measures required to mitigate those effects, are of the highest possible public importance.
“The existence of a policy dimension to a decision does not immunise it from judicial review. Rather the reverse. There is a strong public interest in decision-making by the council on such issues being subject to judicial review. Given the nature, effects and significance of the decision, it is reviewable.”
He did not find the council’s decision ‘unreasonable’ in law, but found it was unlawful because it relied solely on the Mayor’s claim there would be legal and financial obligations for the council – and did not consider wider obligations it had to comply with under the Local Government Act.
If it had considered them it did not necessarily have to then approve the signing of the declaration. But it had to assess the significance of the issues (climate change) and identify and assess all practicable options before it and then consider the views of those affected.
While the HCCA alleged Sandra Goudie’s personal views had derailed the process, the judge found no evidence of that. “That was done by failing to comply with the legal requirements.”
He ruled the council decision inconsistent with the law.
So, the council must now reconsider and determine, consistent with the requirements of the act and its own Significance and Engagement policy and Justice Palmer’s judgment, “whether of not to approve the mayor signing the declaration”.
