It’s looking increasingly likely future generations will carry the weight of the climate crisis on their shoulders due to the inaction of this generation’s world leaders. Climate change is an all-of-society problem that no solitary social mechanism or institution can address adequately. However, the law has the potential to be one of our strongest mechanisms for change. 

In New Zealand, our laws are not just made by Parliament but are also refined and (in some cases) created by the courts when determining legal disputes. This is why we can expect to see increasing levels of climate change action coming before the courts. Alongside tort claims (an entire body of law created by the courts), we think there will be increasing number of judicial review and human rights claims being brought to the court room. 

The kids are not alright…

At the beginning of this month, while COP26 was underway in Glasgow, Students for Climate Solutions served Energy and Resources Minister Megan Woods with a lawsuit in the Wellington High Court alleging that the minister ‘erred in law’ by granting oil and gas permits to Greymouth Gas Turangi, and Riverside Energy. This comes merely six months after the Government declared a climate emergency. 

In 2018, the Government banned the exploration of oil and gas for all offshore sites, but it continued to allow permits for onshore prospecting and issued two permits for areas in Taranaki in June. The lawsuit notes the Zero Carbon Act commits the Government to contribute to the global effort under the Paris Agreement to limit global average temperature increase to 1.5 degrees, and therefore the granting of the permits is inconsistent.

This is the second major judicial review concerning climate policy in Aotearoa this year; Lawyers for Climate Action also sought judicial review of the Climate Change Commission’s official advice to government, arguing that it is inconsistent with the Paris Agreement's target to limit global warming to 1.5 degrees.

Bold action in the European Low Countries 

As we predicted in our first update, off the back of the Netherlands Shell decision, human rights claims are on the rise across the globe. Most recently, the case of VZW Klimaatzaak v Kingdom of Belgium & Others was brought by a NGO and some 58,000 concerned citizen co-plaintiffs against the Belgian state and three local regions. 

The Brussels Court of First Instance upheld the plaintiffs claim that the state and regions had failed to take appropriate measures to mitigate the effects of climate change, and as a result were in breach of the Belgian Civil Code to act with prudence and diligence. While this is a feat for climate litigation; it falls short as being merely symbolic since the Court declined to issue an injunction ordering the government to set specific reduction targets on separation of power. 

This is a significant global development, however it is unlikely that human right challenges in the climate change space will make headway here in New Zealand due to our different human rights framework.

How New Zealand’s potential watershed moment washed away 

The Court of Appeal recently released its Smith v Fonterra Co-Operative Group Limited judgment, which is notable for authoritatively rejecting the suggestion that radical reforms in tort law are an appropriate vehicle for delivering climate justice. 

The case was likened to being the next watershed case, the next Donoghue v Stevenson¹,  as it presented the opportunity for the Court to extend our law to address climate change. 

Smith v Fonterra – holding emitters responsible to the public 

The appellant, Mr Smith, is an elder of Ngā Puhi and Ngāti Kahu, and the climate change spokesperson for the Iwi Chairs Forum. The respondents comprised a variety of corporate companies including Fonterra, Genesis Energy, NZ Steel and Z Energy, which Mr Smith alleged were “major profit-seeking entities that emit or enable emissions”.² Mr Smith claimed that their activities caused damage to land and other resources in Northland in which he claimed he had an interest in under tikanga Māori. 

Mr Smith’s statement of claim pleaded three causes of action in tort:

1. public nuisance; 
2. negligence; and 
3. a proposed new tort described as ‘breach of duty’. 

The High Court struck out Mr Smiths first two claims, but entertained the new common law ‘breach of duty’ claim that would hold emitters responsible to the public for their emissions. 

The Court of Appeal described the common law tradition as one of ‘incremental development and not one of radical change, especially when that change would involve such a major departure’³ from established legal doctrines. Therefore there were several reasons why the Court rejected the appropriateness of creating a new tort:

• Generally, tort law concerns wrongs in which the victim and wrongdoer are easily identifiable. If the Court was to decide the respondents’ emissions amounted to a tort, ‘the logic underpinning that finding would apply to every individual and every business that has not achieved net zero emissions’.⁴ Therefore, it would be very difficult to determine at what point an emitter should be held liable and bring sweeping social and economic consequences. 
• The Court considered it inappropriate to hold that emitting Greenhouse Gases (GHG)s was unlawful despite legislation expressly permitting it in certain circumstances. Determining questions of what activities are lawful would require the Court to determine whether carbon offsetting was adequate, an assessment outside of its expertise. Furthermore, this would be arbitrary given the statutory regime of carbon credits already provides a lawful basis for carbon emissions.
• The remedies available to the Courts to deal with tortious wrongdoing were inadequate for confronting climate change. Court orders against individual GHG emitters would be arbitrary, inefficient and ad hoc, only applying to the parties involved in the litigation and would likely require further litigation to apply it to other emitters. 
• Climate change was best dealt with through a ‘sophisticated regulatory response at a national level supported by international co-ordination’⁵, bolstered by the institutional expertise, democratic participation and democratic accountability that would be available at that level. A piecemeal court approach was also less likely to be consistent with kaitiakitanga and the Treaty of Waitangi than a ‘common approach that pays attention to distributional effects’.

1. Donoghue v Stevenson was a landmark decision by the House of Lords that laid the foundation of the modern law of negligence in common law jurisdictions worldwide. Essentially, their Lordships created new law that established the general principles of the duty of care.
2. Smith v Fonterra Co-operative Group Limited [2021] NZCA 552 at [19]
3. At [15]
4. At [19]
5. At [16]