Climate Change and the Role of the Courts: Litigation and Mitigation in Aotearoa - New Zealand

• Author: Georgina Lyes
• Position: LLB(Hons)/BSC, Law Clerk, Wynn Williams
• Pages: 231-277

231

Canterbury Law Review Student Prize 2022

CLIMATE CHANGE AND THE ROLE OF THE

COURTS: LITIGATION AND MITIGATION IN

AOTEAROA – NEW ZEALAND



Mō tātou, ā , mo kā uri a muri ake nei

For us and for those who c ome after us



is paper addre sses the role of the cour ts in climate cha nge governance an d considers

possible ave nues for involving the cour ts to compel Government to wards climate change

action in Aotearo a New Zealand. e u se of tort arguments in climat e change litigation

and its applica bility in the New Zealand cour ts is argued as placing unte nable strain on

longstanding doctrines. Finally, the largely unexplored potential for administrative law

as a mechanism for compelling the New Zealand Government to take climate action is

explored, sug gesting that a public law a pproach is best placed to ac commodate the legally

disruptiv e nature of climate change.

I. Introduction

Global anthropogenic climate change poses a significant risk to the stability

and life-supporting capacity of natural systems and habitats on Earth. Human

activity has driven a steep increase of greenhouse gas (GHG) emissions, resulting

in accelerated and unprecedented warming of earth’s climate. This warming has

led to many irreversible and rapid changes in t he atmosphere,1 ocean, cryosphere

1 Intergover nmental Panel on C limate Chang e (IPCC) Climate Chang e 2021: e Physical Scien ce

Base (Subject to F inal Editing) ( IPCC AR6 WGI 202 1) at 27.

* LLB(Hons)/BSC, L aw Clerk, Wynn Wi lliams. This a rticle is based on a d issertation su bmitted

in 2022 in pa rtial fu lfilment of the L LB Honours degree a t University of Ca nterbury. A short er

version of th is article is publ ished in (2023) 27 NZJE L (forthcoming) . The author is indebted t o

Associate Professor Elizabeth Macpherson for her supervision. Email: Georgina.lyes@gmail.

com.

232[Vol 30, 2023]

and biosphere.2 The wa rming clima te is causing increa sed frequency and int ensity

of severe weather events,3 food insecurity,4 the spread of disease,5 destruction of

habitat s, and displ acement of peoples.6 The se verity of t hese events and con sequences

is anticipated to increase as the climate continues to warm.7 These issues are

cumulat ively contribut ing to grow ing globa l and local , social, a nd politica l tensions.8

The predicted consequences of climate change have led to a slow realisation,

both inter nationally and domestically, that legal frameworks and policies must be

put in place to mitigate, adapt and build resi lience to the eects of ant hropogenic

climate change. The sluggish progression from the discover y of climate change as

an issue to t he development of specific target ed international a nd domestic policy

demonstrat es the slowness of thi s realisation .9

Despite the g rowth of int ernational c ommitments a nd national law s and policies

to address climate change, there is strong scientific evidence that global action

to limit GHG emissions is insucient.10 Current emission reduction targets will

likely resu lt in a global mean temperature of 3 °C by 2100, r ather than “well below

2 degrees” as prescribed by the Pa ris Agreement.11 Emission reduction targets are

not ambitious enou gh;12 current mea sures will n ot meet commitment s for emissions

reduction an d will not be enough t o prevent catastroph ic warming.13

2 At 7 and 9.

3 Peter Stot t “How climat e change aec ts extreme wea ther events” (2016) 352 S cience 1517.

4 Quirin S chiermeier “Que st for climate- proof farms” (2 015) 523 Nature 39 6.

5 Bernadet te Ramirez a nd others “Support for re search toward s understandi ng the population

health vulnerabilities to vector-borne diseases: increasing resilience under climate change

condition s in Africa” (2 017)6 Infectiou s Diseases of Pover ty 164.

6 Benoit Mayer “Who are “cl imate refugees”? ” in Simon Behrma n and Avidan Kent (ed) Climate

refugees: beyond the legal impasse? (Routledge , London, 2018) 89; C olin Sinda ll, Sel ina Lo and Tony

Capon “Gover nance for the wel l-being of f uture gener ations” (2021) 5 7 Journal of P aediatr ics and

Child Hea lth 1749; and S imon Behrm an and Avida n Kent “Who a re “climate r efugees”? ” in Simon

Behrma n and Avidan Ke nt (eds) Climate Refugees: Beyond the Legal Impasse? (Routledge, London,

2018) 89.

7 IPCC, a bove n 1.

8 Alice Blonde l Climate Change Fuelling Resource-Bases Conflicts in the Asia-Pacific (United Nat ions

Development Pr ogram 2012); a nd Jon Barnett a nd Neil Adger “Cli mate change , human secur ity

and violent c onflict” (200 7) 26 Politica l Geography 639 .

9 Oliver Milman “ Ex-Nasa scientist: 3 0 years on, world is fai ling ‘misera bly’ to address cli mate

change” (19 Ju ne 2018) the Gua rdian <ww w.theguard ian.com>.

10Global Climate Litigation: 2020 Status Review (DEL/2333/NA United Nations Environment

Progra m and Sabin Cen ter for Climat e Change Law 20 20) at 6.

11Shaikh Eskander, Sam Fankhauser and Joana Setzer “Global Lessons from Climate Change

Legisl ation and Lit igation” (2021) 2 En vironment al and Energy Po licy and the Ec onomy 44 at 45.

12Yann Robiou du Pont and Malte Meinshausen “Warming assessment of the bottom-up Paris

Agreement e missions pledg es” (2018) 9 Nature Com munication s 4810.

13 IPCC Climate Cha nge 2022: Mitigati on of Climate Chan ge (IPCC AR6 WG II I 2022).

Climate Change and the Role of the Courts : Litigation and Mitigation

233

The inadequacy of climate change action is reflected at the national scale in

Aotearoa New Zealand (Aote aroa).14 For over 30 years, Aotea roa has portraye d itself

as “clean, g reen”and“100% Pure” in ma rketing and adver tising.15 Fa ilure to comm it

in an eect ive way to address cl imate cha nge undermine s this “clean g reen” image,16

and the appea rance of Aotear oa as a leader of social a nd environmenta l change.17

Climate commentators a rgue that climate act ion in Aotearoa is inadequate for

addressin g the globa l climat e crisis a nd will not mee t obligation s under inter national

commitm ents. Climat e Action Tracker r ates Aotear oa’s targets, pol icies, and fina nce

for climate ac tion as “highl y insucient” and st ates that action i n Aotearoa wi ll not

limit wa rming to 1.5 °C ,18 but put s the world on track for 3 °C of warm ing.19 The New

Zeala nd Climate Cha nge Commission con firmed thi s finding in thei r final advic e to

the Governm ent in 2021, where they con firmed that cu rrent Government pol icies do

not place the count ry on track for meeti ng 2050 targets .20

There is also growing public consensus that government action on climate

change is wanting. This consensus can be seen in the ever-increasing prevalence

and voracit y of climate activ ism, particu larly driven by youn g people, both global ly

14 Between 1 990 and 2019, gr oss emissions i n New Zealand i ncreased by 26 per c ent and between

2018 and 2019 by 2 p er cent, see: Mini stry for the Envi ronment “Key findi ngs of the 1990-2 019

Inventory” (1 April 2021) <https://environment.govt.nz>; New Zealand is the sixth-highest

per capita emitter of CO2 among the Kyoto annex 1 countries. As of 2015, the Sustainability

Council of Ne w Zealand es timated a 4 2 per cent increa se of emissions a bove 1990 levels b y 2030,

compared w ith the Gover nment’s gross em ission ta rget of 10 per cent below 1 990 levels by 203 0.

The emission t rading sc heme is only est imated to r esult in a 0. 4 per cent reduct ion in emission s

by 2030 and t he agricu ltura l sector, despit e contribut ing 77 per c ent of emissions g rowth i n New

Zeala nd, are not par t of the emission t rading sc heme, see: Brya n R Jenkins “Bio physical Sys tem

Failure Pathways at the Regional Scale” in Water Management in New Zealand’s Canterbury

Region: A Sustainability Framework (Springer Netherla nds, Dordre cht, 2018) 205 at 216 .

15Florian Kaefer “Credibility at St ake? News Representations and Discursive Constr uctions of

National Environmental Reputation and Place Brand Image: The Case of Clean, Green New

Zeala nd” (PhD Thesis, Un iversity of Wai kato, 2014) at 150 .

16Avri l Bell and other s A Land of Milk and Hon ey? (Auckland Un iversity P ress, 2017).

17A otearoa was t he first independent c ountry to gi ve all adult women t he vote, the first Wes tern

Allied country to become nuclear free, the first country to legally grant a legal personhood

to a river, recen tly banned all f urther petrole um exploration, and w as considered a leader in

the hand ling of the COVI D-19 pandemic. See “ World surage ti meline” (10 November 202 1) NZ

Histor y <https://nzhist ory.govt.nz>; “Nuc lear Free New Zeal and” Museum of New Zea land Te

Papa Tongarewa <https://collections.tepapa.govt.nz>; Eleanor Ainge “New Zealand bans all

new oshore oil exploration as p art of ‘carbon-neutr al future’” (12 Apr il 2018) The Guardia n

<www.the guardia n.com>; and Suze W ilson “Pandem ic leadership: L essons from New Z ealand’s

approach to COV ID-19” (2020) 16 Leadersh ip 279; Matthias K ramm “When a River Becomes a

Person” (2020) 21 Jou rnal of Hum an Development and C apabiliti es 307.

181.5 °C is a ta rget in the Pa ris Agreeme nt which is descr ibed in more deta il in secti on II.

19Cl imate T racker is an NG O comprised o f three res earch org anisat ions that co nduct indepen dent

scientific a nalysis to com pare countries’ c arbon emissions w ith what is requ ired to reach the

1.5 °C or 2 °C targe ts: “Climate Ac tion Tracker: New Ze aland” Clim ate Action Tracker <ht tps://

climateactiontracker.org>.

20Zane Small a nd Amel ia Wade “Clim ate Cha nge Commi ssion’s fina l advice” Newshub (6 September

2021) <ww w.newshub.co.n z>.