Analysis: A bizarre situation unfolded on both sides of Molesworth Street in Wellington, when James Shaw hailed a High Court victory that overrode a central intention of his own Zero Carbon Act.
High Court Justice Jillian Mallon dismissed the judicial review of the Government’s climate policies by the activist group Lawyers for Climate Action. The lawyers had argued the advice given to Shaw by the Climate Change Commission and his subsequent setting of emissions budgets were flawed for a number of reasons.
One of the key points made by the lawyers was the emissions budgets are not aligned to the emissions pathways the world’s top climate experts say will limit global warming to 1.5C.
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* Overseas expert criticises Climate Commission’s accounting
* Shaw’s mixed messages on 1.5C goal
The Intergovernmental Panel on Climate Change (IPCC) said global carbon dioxide emissions must fall between 40 and 55 percent by 2030 from 2010 levels to have even a two thirds chance of capping warming at 1.5C. By comparison, the commission’s pathway sees New Zealand’s net CO2 pollution fall just 30 percent over the same period, as Newsroom reported last year.
Lawyers for the commission pushed back in court, arguing the IPCC pathways are not the only determinant of what’s consistent with 1.5C, and the unique circumstances of each country allow for unique pathways.
Shaw’s lawyers went even further, telling the judge the Zero Carbon Act actually doesn’t impose a specific duty on the Government to act in line with 1.5C. They said references to contributing to the global 1.5C effort in the “Purpose” section of the legislation were merely “aspirational”.
This conflicted with the statements of various Government MPs when the act passed, who all said it placed a legal obligation on the Government.
“Today we create a legal obligation to reduce our climate emissions in this country to keep warming below 1.5 degrees Celsius,” Green MP Chlöe Swarbrick said at the time.
Even the Prime Minister said in Parliament the Government had “committed ourselves to a 1.5 degrees Celsius target that we are embedding in legislation”.
In a range of public statements, as well as comments to Newsroom as recently as last year, Shaw too said the act bound the Government to act in line with 1.5C.
“The Government and the Commission are both required by the law to act in a way that’s consistent with a 1.5 degree temperature threshold pathway,” he said when asked whether the proposed emissions budgets might be changed.
“If we wanted to come up with a different emissions budget than the one that they’re recommending, the Government would still be required to act within a 1.5 degree pathway. So that suggests that any alternative that we come up with would have to be stronger than what the Commission are proposing, because anything weaker almost certainly would not be consistent with a 1.5 degree pathway so then we’d be breaking the law.”
Jenny Cooper KC, the president of Lawyers for Climate Action, told Newsroom Shaw was trying to “have his cake and eat it too”.
“It did seem to be pretty clear that [the law’s] intention was as the minister described it. Its intention was to make sure that we were going to be getting ourselves onto a pathway that’s aligned with 1.5C. It was a bit surprising to hear that described as just an aspiration.
“It’s quite odd for the same Government who intended to make it legally binding to then turn around and argue that it wasn’t legally binding – even if they are right.”
Mallon ultimately sided with the commission and Shaw, agreeing that the purpose of the act was “more consistent with an aspiration rather than an obligation”.
That’s what led to Thursday’s baffling display of cognitive dissonance from Shaw.
On the one hand, he expressed concern the judgment had neutered a key part of his greatest legislative accomplishment.
“[The judge] agreed with the government’s lawyers that the way that the target is set in relation to that 1.5C threshold suggests that contributing to the global effort is more in line with an aspiration than an obligation. That suggests some kind of confusion because when we set the law back in 2019, we said that the 1.5C threshold is sacrosanct. That should be the primary consideration,” he said.
And yet, he also welcomed the finding that the Government had acted within the bounds of this new, much weaker interpretation of the law.
“The case that [his lawyers] were making was that we were operating in line with the law. What I guess I’m pleased about is that the judge agreed that we were operating in line with the law.”
Shaw tried to separate the Government’s legal victory from the collateral damage of that victory – the “sacrosanct” 1.5C obligation. Unfortunately, they come hand-in-hand.
While the commission’s own argument – that 1.5C consistency isn’t solely rooted in IPCC pathways applied uniformly to each country’s emissions – may have still won in court, the judgment would have had to more seriously interrogate that view. But because the judge followed Shaw’s legal argument the 1.5C references were only “aspirational”, that interrogation didn’t really take place.
Even worse, Shaw hedged when asked whether the law would be changed to clarify the “primary” nature of 1.5C, saying he would need to take advice from officials.
It’s hard to understand how the Climate Change Minister wouldn’t immediately push for new legislation to shore up the act, particularly ahead of an election year which could see a new government come to power with less commitment to 1.5C.
