Climate change litigation is heating up

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The Climate Change Commission (the Commission) recently released its final report laying out its proposal for New Zealand to be carbon neutral by 2050.

If you listened only to those who are loudly resisting climate change measures, you would think that the Commission’s recommendations have gone too far. However some argue that the Commission’s recommendations fall short.

That view is shared by Lawyers for Climate Action NZ Inc. (LCANZI). LCANZI say the Commission’s recommendations fail to address the scale and urgency required to uphold New Zealand’s international obligations. The group says that, as they stand, the Commission’s recommendations will not get New Zealand any closer to achieving its commitment to keep temperatures from rising more than 1.5 degrees. The group claims the Commission relied on an ‘apples to oranges’ comparison and some creative accounting to reach the conclusions in its report. LCANZI say the Commission’s report only goes as far as decreasing carbon dioxide levels by 29 per cent, a far cry from the Commission’s projection of 55 per cent.

In a bid to hold the Commission to account, LCANZI have initiated a judicial review of the Commission’s plan to tackle climate change. The judicial review is aimed at prompting the Commission to take bigger steps. The legal action by LCANZI comes off the back of the global trend of increasing climate activism litigation - including recent landmark cases from Australia and Europe.

Recent climate change litigation

Australia – May 2021

In an action brought by eight children, the Australian Federal Court found the government has a duty of care to protect young people from climate change.1 The case concerned an expansion of the Vickery Coal Mine in New South Wales. The Court considered whether the Minister had a duty of care to avoid causing children harm resulting from the additional extraction of coal from the mine expansion.

The children presented undisputed evidence that 100 million tonnes of CO2 attributable to the expansion of the mine would likely cause a tiny, but measurable, increase to the global temperature. The Court found ‘a reasonable person in the position of the Minister would foresee that, by reason of the Extension Project’s effect on increased CO2 in the Earth’s atmosphere and the consequential increase in global surface temperatures, each of the children is exposed to a risk of death or other personal injury.’

The Court held that in order to respond to ‘changing social conditions’ resulting from the increased ability of humans to do harm to others through atmospheric pollution, ‘the common law should now impose correlative responsibility’ upon those who hold ‘previously unimaginable power to harm tomorrow’s adult.’

France – February 2021

France’s top administrative court, the Conseil d'État, recently ordered the French government to take ‘all necessary and additional steps’ to reach its climate targets or face possible sanctions, including substantial fines.2 In its final ruling, with no possibility of appeal, the Conseil d’État found that France was not on track to meet its goal to cut 40 per cent of emissions by 2030.

Last November, the government was given three months to enact climate policies to meet its targets. Almost eight months later with no additional steps having been taken, the emissions targets would be unattainable unless urgent measures were put in place.

The case was originally brought by the commune of Grande-Synthe, a town built on reclaimed land at risk of being inundated by rising sea levels caused by climate change. The former mayor of Grande-Synthe said ‘this ruling by the Council of State is historic: for the first time in France, the state has been ordered to act for the climate’. He went on to say that the decision would ‘bring an end to the lethargy, hypocrisy and cynicism ... behind the government’s fancy speeches.’

The Conseil d'État instructed the government to take ‘all the necessary measures to curb the curve of greenhouse gas emissions produced on the national territory to ensure its compatibility with the objectives’ between now and 31 March 2022.

The government’s efforts will be assessed after the deadline, in the midst of France’s 2022 presidential elections.

The Netherlands – May 2021

National governments are not the only actors who have been held to account by climate change litigation. Just days prior to Sharma (the Australian case referred to above) being decided, another watershed decision came out of the Netherlands. The decision concerned an action between more than 17,000 Dutch citizens and the oil giant Royal Dutch Shell (Shell).3

The claimants argued that Shell’s business operations and sale of energy-carrying products violated or were likely to violate its obligation to reduce the aggregate annual volume of CO2 emissions into the atmosphere. The Hague District Court ordered Shell to reduce its emissions by 45% by 2030.

This decision, like in Sharma, was based on the duty of care which allowed the Court to take into account the effect climate change has on a healthy environment and its consequences for human rights. This is the first time a non-state entity has been legally obliged to align its policies with the Paris Climate Accords. While this decision only applies in the Netherlands, it could have wider effects internationally and snow-ball into a precedent-setting judgment with major consequences for other big polluters.

Shell intends to appeal the decision on the basis that it has no obligations under the Paris Agreement and its current targets do not violate Dutch law. But if Shell fails in its appeal and the decision is upheld, Shell will have to remove the equivalent of 740 million tonnes of carbon dioxide per year from its ledger.

The future of climate change litigation in New Zealand

The overseas cases referred to in this article demonstrate that LCANZ’s judicial review may be just the beginning. The near future may bring a tidal wave of climate change litigation to New Zealand’s shores. These cases will not be confined to the central Government, but will likely extend to planners, architects, engineers and local councils. These individuals and organisations may find themselves on the receiving end of negligence claims for their part in projects or activities that contribute climate change or have high rates of emissions. Potential claims for climate litigants could include, for example, damage to buildings caused by coastal erosion and the increased exposure effects of climate change, and unsustainable energy projects.

The LCANZ case demonstrates that the New Zealand public are more than willing to step into the shoes of David in order to take down Goliath. Can businesses’ or government entities’ claims to being committed to climate action withstand the scrutiny of a courtroom? 

 

  1. Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560.
  2. Notre Affaire à Tous and al v France.
  3. Milieudefensie et al v Royal Dutch Shell plc(HA ZA 19-379).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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