Following the Climate Change Commission’s (Commission) final recommendations, Lawyers for Climate Action New Zealand Incorporated (LCANZI) has recently filed judicial review proceedings against the Commission and the Minister for Climate Change, James Shaw. 

The proceedings concern the Commission’s recommended emissions budgets (Budgets) and its advice to the Minister on New Zealand’s Nationally Determined Contributions (NDCs) under the Paris Agreement and the United Nations Framework Convention on Climate Change (Framework Convention).

The case will be one to watch and will hopefully clarify complex carbon accounting questions, decision-makers’ responsibilities in setting climate change goals, and ultimately New Zealand’s obligations in reducing greenhouse gas emissions.

LCANZI’s Arguments

LCANZI’s statement of claim alleges that the Commission made legal and logical errors, resulting in advice that was irrational, unreasonable and inconsistent with the purpose of the Climate Change Response Act 2002 (the CCRA). Specifically, LCANZI argued that the Commission:

1. used incorrect measures to calculate reductions;

2. incorrectly prioritised considerations;

3. adopted an incorrect carbon accounting method; and

4. incorrectly allowed for offshore mitigation.

Comparison measures

In reviewing the NDCs, the Commission used the Intergovernmental Panel on Climate Change’s (IPCC) 2018 special report, Global Warming of 1.5°C (Report). They adopted the Report’s suggested reductions to determine how much greenhouse gas New Zealand could emit, while limiting warming to 1.5°C.

The Report suggested a 40-58% reduction of net emissions by 2030, from 2010 net emissions levels. However, the Commission calculated a 40-58% net emissions reduction figure from New Zealand’s 2010 gross emissions. The Commission used gross-net measures, while the IPCC report used net-net measures. The LCANZI statement of claim alleges these errors meant the Commission’s recommended figure was too high, and inconsistent with the 1.5°C target.

Valid considerations

LCANZI’s statement of claim further contends that the Commission’s process was flawed. The statement of claim explains that the CCRA requires a 2050 Target that is set with regard to mandatory considerations, including economic impacts and achievability. However, LCANZI argues that the Budgets are subject to the overall purpose of the CCRA, which requires consistency with the Paris Agreement and the Framework Convention. The statement of claim contends that the Commission failed to consider this overriding purpose. Further, the statement of claim argues that the Commission should have used the 1.5°C requirements of the Paris Agreement and Framework Convention as a starting point for the Budgets, rather than weighing achievability and economic considerations against the purpose.

Carbon accounting methods

In setting and measuring progress towards its Budgets, the Commission adopted modified activity-based (MAB) carbon accounting. MAB accounting, accounts for activities that cyclically increase and decrease emissions by “averaging” the fluctuations over the long-term. The Commission chose MAB accounting for forestry activities, which creates substantial fluctuations in emissions, as trees are planted and harvested. In its statement of claim, LCANZI argues that the Commission erred because the CCRA requires it to use Greenhouse Gas Inventory (GHGI) accounting methods. LCANZI’s statement of claim explains that GHGI more accurately represents emission’s real-time impacts and is the method New Zealand uses to report emissions under the Framework Convention.

Offshore mitigation

Finally, the statement of claim alleges that the Commission inappropriately recommended NDCs that were lower than the Budgets, because the Commission considered that the NDC could incorporate offshore mitigation while the Budgets could not. However, LCANZI argues that the CCRA actually requires the Budgets to incorporate any planned offshore mitigation, so the NDC and Budgets should be consistent. LCANZI further alleges that the CCRA requires Budgets to be met using domestic measures as much as possible, and therefore the Commission should have considered how much the NDC and Budgets could be met domestically.

Implications

Depending on the outcome, the case potentially has ramifications for the Budgets and the NDCs - which could affect organisations whose commitments are linked to these measures and, in particular, could alter their legal obligations.

Additionally, the decision, once issued, might help clarify appropriate methods of carbon accounting for different activities and what consistency with 1.5°C means in practice. Depending on the outcome, this could impact organisations with significant forestry assets.

Further, the proceedings raise the issue of local authorities being clear about how they intend to measure and achieve those targets. Though this case is at a Central Government level, it is an important reminder for local authorities to clearly understand the targets that they may choose to set (if any) - this is likely to become particularly relevant under the Natural and Built Environment Act, which is anticipated to place obligations on local authorities to reduce greenhouse emissions through Natural and Built Environment Plans. If anything, the proceedings highlight the importance of understanding, and clearly demonstrating how such commitments will be measured and accounted for.

As a final point, the decision will hopefully clarify decision-makers’ responsibilities in using complex science to make policy decisions.

Thanks to Rachael Mortiaux, Maddy Ash and Ishma Nasheed for their assistance in writing this article.