ADAPTATION Climate litigation - challenging the boundaries

Climate change lawyers continue to challenge the boundaries of existing legal standards as they seek to accelerate emissions reductions. The number and scope of climate change-related claims continues to expand.

Despite failure to achieve a decisive victory in the Australian and New Zealand courts to date, international cases hint at future direction while a growing body of regulation requiring reporting against climate standards may provide a new platform for future legal action.

COMMON LAW COURTS - NO DECISIVE VICTORY YET

New Zealand has so far followed a similar path.

In March 2020, the High Court refused to strike out a new tortious duty which makes corporates responsible to the public for their emissions in Smith v Fonterra Co-operative Group Ltd & Ors. 4 The Court of Appeal overturned the decision on appeal.5 It concluded that “the magnitude of the crisis which is climate change simply cannot be appropriately or adequately addressed by common law tort claims pursued through the courts”. A further appeal was argued before the Supreme Court in August 2022 and judgment is pending.

In May 2021, the Federal Court of Australia found in Sharma v Minister for the Environment6 that the Minister for the Environment owed Australian children a duty to take reasonable care to protect them from the harms of climate change when deciding whether to approve projects under environmental legislation. The decision was reversed on appeal by the Full Federal Court.7 The appeal court observed that the duty was inconsistent with statute, involved core policy questions unsuitable for judicial determination and had features that were incompatible with tort law.

Public law challenges remain a feature

Judicial review continues to be a forum for complaints that public power has not properly prioritised climate change concerns. While climate change-related matters are frequently identified as relevant considerations in the exercise of public power, they are not the only consideration. Courts have been reluctant to prioritise climate change over other relevant considerations or interfere with the judgement of a public decision maker that has sought to balance all relevant matters.

Lawyers for Climate Action v Climate Change

Commission & Anor saw the High Court reject challenges to the Commission’s advice to the Government about how to meet New Zealand’s emissions targets and international obligations. The High Court found that the legislative purpose of contributing to the global effort to limit the average temperature increase to 1.5 degrees, was not an independently enforceable obligation.

Movement v Waka Kotahi saw the High Court reject a claim that approval by Waka Kotahi of the national land transport programme for 2021-2024 was unlawful because it had not implemented the Government’s policy statement on land transport (which includes reducing greenhouse gas emissions as a strategic priority). In March 2023, the High Court found that climate change was just one of the four strategic priorities (along with safety, better travel options and improving freight connections for economic development). Waka Kotahi was required to balance those strategic priorities and no one priority took primacy over the others.