Background

The Commission was established by the Climate Change Response (Zero Carbon) Amendment Act 2019 (Zero Carbon Act) and has the role of providing periodic independent advice to the Government and reviewing the Government’s progress towards its emissions reduction and adaptation goals. Those goals include a net zero target for greenhouse gas emissions, other than biogenic methane, which was set for 2050 by the Zero Carbon Act (2050 Target).

The Zero Carbon Act also amended the purpose of the CCRA to include providing a framework by which New Zealand can develop and implement clear and stable climate change policies that contribute to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5° Celsius above pre-industrial levels (Paris Target).

Lawyers for Climate Action NZ (LCANZ), a not-for-profit comprising over 350 lawyers who advocate for legislation and policies to ensure New Zealand meets its commitments under the Paris Agreement, brought judicial review proceedings challenging advice the Commission provided the Government in 2021. There were two limbs to the challenge.

The first regarded the Commission’s advice on whether the 2016 NDC was consistent with the Paris Target.

The second regarded the Commission’s advice regarding the emissions budgets that the Minister for Climate Change was required to set by the Zero Carbon Act for periods from 2022 onwards (Emissions Budget Advice). Those budgets set the quantity of emissions permitted for specific periods, with a view to meeting the 2050 Target.

NDC advice

The Paris Agreement requires that countries determine a Nationally Determined Contribution (NDC) every five years. NDCs are intended to be ambitious and seek to “reach global peaking of greenhouse emissions as soon as possible” and “to undertake rapid reductions thereafter”.

The Commission concluded that the 2016 NDC was not consistent with the Paris Target, and while it did not suggest an alternative NDC, advised that a new NDC should reflect a reduction in net emissions of “much more than” 36% below gross 2005 levels by 2030.

LCANZ argued that the Commission’s advice regarding the 2016 NDC contained a logical or mathematical error in the way that the Commission compared the level of New Zealand’s international commitment (as set out in the 2016 NDC) with modelling carried out by the Intergovernmental Panel on Climate Change (IPCC) in a 2018 report (IPCC modelling).

Emissions Budget Advice

LCANZ contended there were a number of errors in the Emissions Budget Advice, including:

• a failure to consider whether the budgets proposed were consistent with the Paris Target (rather than just the 2050 net-zero target);
• the same mathematical error as in the NDC advice;
• the accounting methodology it recommended for measuring progress towards meeting the emissions budgets and the 2050 Target; and
• that it was irrational, unreasonable and inconsistent with the legislative purpose of contributing to meeting the Paris Target.

High Court decision

In the High Court Justice Mallon did not accept that the Commission made errors in either its NDC advice or in the Emissions Budget Advice. Specifically, Her Honour held that the Commission:

• did not make a mathematical or logical error in its application of the IPCC modelling when it provided the 2016 NDC advice and the Emissions Budget Advice;
• considered, as it was required to, both the 2050 Target and the Paris Target in the Emissions Budget Advice;
• was entitled to advise on the accounting methodology that should be used for measuring progress towards meeting the emission budgets and the 2050 Target;
• did not act irrationally or unreasonably in either the NDC advice or the Emissions Budget Advice.

Our comment

The High Court’s decision is another, and the third to be released in 2022,[1] in an emerging line of cases where interest groups have brought judicial review proceedings challenging administrative decisions on climate change related grounds.

Given that context, two more general aspects of the High Court’s decision are notable.

First, Justice Mallon held that the Commission’s advice was subject to judicial review, reinforcing that the Court’s judicial review jurisdiction is a broad one.

Second, and in contrast to other recent High Court decisions involving climate change issues,[2] the Court held that a relatively strict standard of review was appropriate, of a type recognised in human rights cases. Instead of the traditional Wednesbury approach to unreasonableness,[3] Justice Mallon held that given the significance of climate change, the appropriate approach was to consider whether the challenged decisions were reached on sufficient evidence, were fully justified and were decisions open to a reasonable decision maker (recognising that reasonable decision makers could reach different decisions).

These judicial review proceedings were the first in New Zealand to challenge decisions made squarely under climate change legislation (ie the CCRA). That context was important in determining the level of scrutiny that should be given to the Commission’s advice. By contrast, the approach of Justice Venning in the All Aboard Aotearoa case reflected the fact that the decisions under review were land transport planning and funding decisions, albeit with potentially significant climate change implications, rather than climate change decisions per se.[4]

All Aboard Aotearoa has been appealed to the Court of Appeal, and so in due course we can expect some guidance from that Court as to the appropriate level of scrutiny to give to decision-making which engages climate change issues.

Although LCANZ was not successful in this case, we anticipate that there will be increasing recourse to the Courts to challenge decision-making that is specifically focussed on climate change, and whether the administrative response to it is sufficient to meet New Zealand’s domestic and international obligations. For instance, decisions in the following areas are likely to be reviewable, and if current trends continue may be challenged by interest groups:

• the Commission’s ongoing work programme of advice (its next piece of advice will concern the settings of the Emissions Trading Scheme);
• as of 30 November 2022, decision makers under the Resource Management Act 1991 are able to have regard to the effect of discharges of greenhouse gas emissions in considering resource consent applications; and
• the Government’s ongoing decisions to give effect to its National Adaptation Plan and Emissions Reduction Plan (see our articles here and here).

Contact us

Get in touch with one of our contacts (pictured to the right) if you would like to understand the implications of the decision.