In recent years, climate advocacy groups have brought several judicial review proceedings against public decision-makers, with the aim of overturning decisions or preventing activities that they argued were counter-productive to New Zealand reaching its climate goals. However, two recent decisions of the Court of Appeal have affirmed the broad discretion that decision-makers have when considering climate change within the applicable statutory frameworks.

Movement decision - climate change considerations a permitted, but not mandatory consideration

Movement, a charitable trust advocating for sustainable transport, sought judicial review of the decision by New Zealand Transport Agency Waka Kotahi (the Agency) to approve the National Land Transport Programme 2021-2024 (NLTP). 

In the High Court, Movement argued that the Agency had failed to assess and consider various matters related to greenhouse gas (GHG) emissions, with the consequence being that its decision to approve the NLTP was unlawful. However, as we explained in our previous article (see here), the High Court did not accept those arguments.

Movement then appealed to the Court of Appeal. However, the factual context had changed by the time the appeal was heard in May 2024. In particular, a new Government Policy Statement on Land Transport (GPS) took effect from 1 July 2024. Importantly, unlike the 2021 GPS, the 2024 GPS contains no direction or guidance to the Agency in relation to achieving reductions in land transport emissions. 

As a result of those factual changes, all but one of the issues raised on appeal was held to be moot. In respect of that issue, the Court had to determine the relevance of climate change to whether the NLTP contributed to “an effective, efficient, and safe land transport system in the public interest”, this being the purpose of the LTMA. While climate change or emissions reductions are not referred to explicitly in that purpose, the Court of Appeal held that decision-makers under the LTMA were permitted, but not required to, consider the Government’s climate change objectives and commitments.

The Court’s approach to the interpretation of the purpose of the LTMA will be of interest to other decision-makers in the land transport planning system. For example, when regional transport committees (RTCs) prepare regional land transport plans (RLTPs) under section 14 of the LTMA, RTCs must be satisfied that their RLTPs contributes to the purpose of the LTMA. The Court of Appeal’s finding that climate change is a relevant (but not mandatory) consideration in that assessment will be relevant to RTCs’ decision-making. 

Padraig McNamara (Partner) and Chris Ryan (Senior Associate) of Simpson Grierson’s Planning and Environment team represented Auckland Transport, an intervener in these proceedings, in both the High Court and Court of Appeal.

LCANZI decision - “climate change decisions” subject to usual judicial review principles

This decision concerned judicial review proceedings brought by Lawyers for Climate Action New Zealand Inc (LCANZI), a charity that seeks more effective action against climate change, challenging the advice given by the Commission regarding the setting of GHG emissions budgets (Budgets Advice) and New Zealand’s Nationally Determined Contributions (NDC Advice). 

As we explained in our previous article (see here), LCANZI’s application for judicial review had been declined by the High Court. LCANZI appealed to the Court of Appeal on four grounds. Of those four grounds, two concerned alleged mathematical or logical errors in the NDC Advice and Budgets Advice. We do not address those grounds of review, which concerned highly technical aspects of the Commission’s advice.

The other two grounds of appeal alleged that the Commission misinterpreted the statutory purpose of the Climate Change Response Act 2002 (CCRA), and that the Budget Advice and NDC Advice was unreasonable.

The Court of Appeal emphasised that the CCRA had a dual purpose: achieving New Zealand’s emissions target of net zero GHG emissions (excluding biogenic methane) by 2050, and “contributing to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5ºC above pre-industrial levels”. The Court did not accept that the purpose created an unambiguous “bottom line”, because there was no “single right answer” that would achieve that purpose. Instead, the Court held that the Commission had sufficiently considered whether its proposed budgets will put New Zealand on a path to meet the 2050 target and contribute to the 1.5°C goal. 

The Court characterised the complaints raised by LCANZI as seeking to challenge the merits of the Commission’s decision. The Court of Appeal did not accept that the merits of the NDC Advice and Budget Advice were unreasonable such that the advice was unlawful. 

Our comment

While both cases related to how decision-makers considered climate change, the two statutory frameworks that applied were quite different. However, we consider that there are some common themes between the two decisions. 

The Court of Appeal was clear in both decisions that, notwithstanding the importance of climate change, it would only intervene on orthodox grounds: where clear legal requirements are breached by the relevant decision-makers, or the decision in question is substantively unreasonable. That approach reflects that it is not the court’s place in judicial review to substitute its view about the merits of any decision; with decisions about how best to address climate change ultimately being matters for Parliament and the Executive to determine.

The Court’s limited role reflects that the decision-maker in both cases (ie the Agency and the Commission) was required to balance a number of (potentially) competing considerations. In the LCANZI decision, the Court noted that the CCRA required the Commission to consider an extremely wide range of potentially conflicting factors, and therefore the level of detail that it included in the NDC Advice and Budget Advice was not a matter the Court would “review”. Similarly, in the Movement decision, the Court noted that the concept of “public interest” in the purpose of the LTMA was a wide concept, capturing “multiple, and potentially competing, interests that may need to be balanced in making decisions about how to achieve an effective, efficient, and safe transport system”.

Also of more general relevance, the Court of Appeal expressed reservations in the LCANZI decision that decisions relating to climate change should be subject to a higher level of scrutiny on review (sometimes referred to as a greater “intensity” of review). Earlier case law, in which the High Court had suggested that the courts should apply the same high level of scrutiny to a decision concerning climate change as it would to a decision that affects fundamental human rights, had potentially encouraged climate advocacy groups to bring judicial review proceedings against public decision-makers. 

Get in touch

To find out more of either of the Court of Appeal’s decision, or its implications for you, please get in touch with one of our experts listed below.

Special thanks to Payge Swanson for her assistance in writing this article.