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Climate change strategic litigation – a glimmer of hope from New Zealand

Emma Dunlevie

In November last year, law student Sarah Thomson lost her legal battle with New Zealand’s Minister for Climate Change Issues. While her application was unsuccessful, Justice Jillian Mallon’s judgment may give some hope to those in other common law countries when considering strategic litigation related to climate change.

The Case 

Sarah Thomson claimed that the Minister had acted unlawfully when setting New Zealand’s greenhouse gas emissions targets, specifically:

  1. by failing to review the target made under the Climate Change Response Act 2002 (“Act”) (a target made in 2011 for a 50% reduction in greenhouse gas emissions by 2050 (using 1990 as a baseline year)) after publication of new information (an IPCC report); and

  2. by failing to take into account mandatory considerations when setting New Zealand’s “nationally determined contribution” under the Paris Agreement (to reduce greenhouse gas emissions by 30% by the year 2030, using 2005 as a baseline year).

Key Takeaways  

  1. Justiciability issues - not an automatic bar to a proceeding

    The Minister unsuccessfully argued that the issues before the Court were strictly political and therefore unable to be reviewed by the Court.

    Whilst subject matter may make a ground of review more difficult to establish (for example, because of the complexity of climate science), the Court held that this did not automatically preclude any matter from review by the courts.

  2. The relevance of international case law when considering climate change litigation

    Justice Mallon examined international case law from Canada, the United Kingdom, the Netherlands and the United States before concluding that the cases demonstrate that it may be appropriate for domestic courts to play a role in Government decision making about climate change policy.

    The way other Courts have dealt with climate change litigation will be increasingly relevant as precedent is developed across jurisdictions.

  3. The current political environment is relevant to the appropriate remedy

    Justice Mallon held that the Act required the Minister to consider whether the 2050 target should be reviewed after the release of the IPCC Report, and that the Minister had failed to do so.  Despite this finding, it was held that it was not appropriate to grant a remedy due to the fact a new government had been elected which had indicated an intention to set a more ambitious target under the Act.

    The question remains whether, if a government intended to withdraw from a particular commitment, or set a lower target, this would be equally relevant to whether a Court could exercise its discretion in favour of an applicant to grant the relief sought.

No appeal has been filed with respect to the Court’s decision.

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