Analysis: The latest step in a long-running legal saga over the ambition of New Zealand’s climate targets has concluded, after a three-day hearing at the Court of Appeal.
Those targets are now up in the air, with Lawyers for Climate Action (LCANZI) having asked the court to order the Climate Change Minister to reconsider carbon budgets and possibly the emissions reduction target under the Paris Agreement as well.
The appeal in this case dealt with many of the same issues as the original High Court hearing last year. LCANZI believes the Climate Change Commission’s advice to the minister was incorrect because it used the wrong carbon accounting measures and wasn’t consistent with limiting global warming to 1.5C.
Late last year, then-High Court Justice Jillian Mallon ruled mostly in favour of the commission and the minister. She found the Zero Carbon Act doesn’t require the Government to act in line with 1.5C and that references to the temperature target in the law were merely aspirational. She also said the commission was legally allowed to use the carbon accounting methods it had chosen.
James Every-Palmer KC and Jenny Cooper KC, speaking for LCANZI, restated earlier arguments on carbon accounting and the insufficiency of the climate targets the commission recommended. They also told the court the references to 1.5C in the Zero Carbon Act place an “operative requirement” on government actions.
Victoria Casey KC, representing the commission, said the advice was ambitious and the carbon accounting methods were reasonable choices. She said 1.5C had been taken into account by the commission.
Over the three-day hearing, the judges engaged deeply with technical questions about the treatment of carbon emissions and absorption from forestry under different accounting schemes. A variety of metaphors – from bathtubs to baguettes to weight loss – were deployed to try to contextualise the different arguments about which accounting methods are suitable.
Casey was the recipient of some of the most piercing questions from the bench, with doubts expressed over the commission’s choice of a method which averages out the peaks and troughs of the plantation forestry cycle rather than a method which depicts what the atmosphere actually “sees” in any given year.
Even if the three judges who heard the case – Court of Appeal president Mark Cooper, Justice Murray Gilbert and Justice David Goddard – agree with the activist lawyers that the carbon accounting choices aren’t quite right, there’s a high bar for finding the commission’s advice unlawful. Exactly what that bar should be was also debated, with Casey and Crown Law barristers representing the minister arguing the stringent Wednesbury standard of unreasonableness should be applied.
At the High Court, Justice Mallon had found a somewhat lesser standard could apply, but had still sided with the commission and the minister.
This case has been going since July 2021 and it’s unclear when a resolution might be found. In the meantime, there remains the possibility that a court orders the government to go back to the drawing board and reconsider its budgets, likely coming up with more stringent ones.
That would force the incoming National-led government to double down on the climate policy work programme, which already has a 1.5 million tonne gap in the first budget period from Chris Hipkins’ “policy bonfire”.
Even if the legal bid fails, the group’s persistence in this matter – and success earlier this year in a different legal case over the Labour government’s decision to ignore Climate Change Commission advice on the Emissions Trading Scheme – represents a shot across the bow for an incoming government which is seen as less ambitious on climate.
National and Act MPs fiercely criticised the commission’s advice in 2021, calling on it to release the models behind its work. When it did so, only two people downloaded them.
The pair of legal actions from LCANZI highlight the strengths and weaknesses of the Zero Carbon Act, which was designed to force governments to undertake at least a minimal amount of climate action.
On the ETS, the law clearly worked, with ministers ordered to reconsider their decision and producing a new one which aligned with the commission’s advice.
Whether the law will also bind the Government and the commission to increase their ambition on broader climate matters remains to be seen.
What is clear is that any attempts to roll back action on climate will be subject to serious legal action and that the legal framework to encourage action is at least partially operative.
The most revealing thing in this article: “National and Act MPs fiercely criticised the commission’s advice in 2021, calling on it to release the models behind its work. When it did so, only two people downloaded them.”
Thank goodness for some sense: 1.5C is not viable and “references to the temperature target in the law were merely aspirational.” is applauded. Many other important details are not consistent with the best science either.
As a reminder of why this matters, Earth hit 2 degrees last week, briefly:
“The Earth’s temperature briefly rose above a crucial threshold that scientists have been warning for decades could have catastrophic and irreversible impacts on the planet and its ecosystems, data shared by a prominent climate scientist shows.
“For the first time, the global average temperature on Friday last week was more than 2 degrees Celsius hotter than levels before industrialization, according to preliminary data shared on X by Samantha Burgess, deputy director of the Copernicus Climate Change Service, based in Europe.
“The threshold was crossed just temporarily and does not mean that the world is at a permanent state of warming above 2 degrees, but it is a symptom of a planet getting steadily hotter and hotter, and moving towards a longer-term situation where climate crisis impacts will be difficult — in some cases impossible — to reverse.” https://edition.cnn.com/2023/11/20/climate/2-degree-warming-limit-record-copernicus-climate-int/index.html