With swathes of the country devastated by Cyclone Gabrielle and its aftermath, Climate Change Minister James Shaw delivered some home truths last week.
“I don’t think I’ve ever felt as sad or as angry about the lost decades that we spent bickering and arguing about whether climate change was real or not, whether it was caused by humans or not, whether it was bad or not, whether we should do something about it or not, because it is clearly here now, and if we do not act, it will get worse,” the Green co-leader said.
As the powers that be grapple with how to come to terms with the reality of the situation, it’s of little surprise individuals are looking to the courts for answers.
More than 1500 climate change cases have been filed globally since 2017. Let’s look at some of the case law.
In the 2022 case of Smith v Fonterra, Michael John Smith - an elder of Ngāpuhi and Ngāti Kahu and the climate change spokesperson for the Iwi Chairs Forum - brought claims against Dairy Holdings Ltd, Genesis Energy Ltd, and Fonterra.
Smith argued the companies contributed to emitting greenhouse gas emissions, amounting to claims of public nuisance, negligence, and a proposed new tort described as a breach of duty.
Smith sought declarations that each company had unlawfully caused or contributed to the effects of climate change, or breached duties owed to him. He also sought injunctions requiring each company to produce zero net emissions by 2030.
The High Court dismissed claims of public nuisance and negligence, saying the damage claimed wasn’t particular to Smith, or a direct consequence of the companies’ actions. A new duty would be hard to prove, but it should be explored in a trial, the court said. Smith appealed the decision to strike out claims of nuisance and negligence, which was dismissed in the Court of Appeal in 2021.
“[E]very person in New Zealand — indeed, in the world — is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm”, the court said.
While the court said courts had some role in climate action “in holding the Government to account”, an intervention in company liability would introduce an “ad hoc” and “arbitrary regime” that would lack democratic legitimacy.
Instead of tort action, those companies should be subject to the Climate Change Response Act 2002 (and amendments in 2019) and international obligations, the court said.
In late 2021, Smith applied for leave to bring an appeal to the Supreme Court, which was granted. Watch this space.
In a separate case, Smith filed High Court proceedings against the Crown, alleging the Government failed to take appropriate steps to mitigate climate change. and, in doing so, the Crown breached his rights to life and culture under the Bill of Rights Act, and obligations outlined in Te Tiriti o Waitangi. The claim was similarly struck out on the basis there was no tenable cause of action.
Last year the long-awaited judicial review between the 350-strong Lawyers for Climate Action New Zealand (LCANZ), and the Climate Change Commission was released in favour of the commission. Climate Change Minister James Shaw was also named in the suit.
In a nutshell, the not-for-profit incorporated society argued the commission’s advice to the minister regarding emissions budgets and New Zealand’s Paris Agreement targets was too weak and irrational in its reasoning.
Justice Jillian Mallon accepted LCANZ’s concern the advice or budgets put New Zealand on track to reduce domestic net emissions by 2030 as per the international law global pathways. She also found the equations used to determine temperature gross levels could be potentially misleading.
“While it might have been more transparent to carry out a strictly mathematical comparison and to then adjust for value judgments, the commission did not make a serious logical error that led to an irrational recommendation. The commission knew what it was doing and had reasons for its approach.”
As to whether costs should be awarded, Justice Mallon said climate change was an important issue and judicial review provided an important check on the commission’s actions. The challenge could also enhance the commission’s legitimacy so costs were discouraged.
LCANZ is considering an appeal.
“Quite simply, this result means that as a country, we are not working to keep to our 1.5 degree obligations,” the group said in a statement. “This means that we can expect to continue weathering tornadoes, flash floods, and fires tearing through native bush.”
In the 2017 case, Thompson v Minister for Climate Change issues, a law student challenged two decisions setting New Zealand’s targets made by the former climate change minister. The case failed on the facts, but the High Court confirmed it was appropriate for domestic courts to scrutinise government decision-making.
In the 2020 case Hauraki Coromandel Climate Change Action Inc v Thames-Coromandel District Council, the High Court quashed the district council’s decision not to approve the mayor signing the Local Government Leaders’ Climate Change Declaration.
Following a Dutch court decision that Royal Dutch Shell must cut its greenhouse gas emissions by 45 per cent of 2019 levels by 2030, further legal action has been brought against Shell directors in the UK by ClientEarth. The UK environmental organisation claimed breaches of the UK Companies Act 2006. Namely, a duty to promote the success of the company and a duty to exercise reasonable care, skill and diligence.
In last year’s Australian case of Sharma v Minister for the Environment, the Full Federal Court of Australia overturned a ruling that the minister had a duty to take reasonable care to avoid exercising statutory powers that could cause harm. A group of teenagers in this case argued the minister breached his duties by granting an application to extend a coal mine.
While the cases have fallen in favour of the status quo, it seems the tide is turning. And as national emergencies become more frequent and more severe, government and corporate accountability will continue to come under the spotlight.
But Shaw, quoting an unlikely conservative ally, Winston Churchill, said it best: “The era of procrastination, of half measures, of soothing and baffling expedience of delays is coming to its close. In its place we are entering a period of consequences.”
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