Climate change case law
Part of the McGuinness Institute’s ClimateChangeNZ project
The table below lists selected New Zealand case law that relates to climate change.
Our team periodically update this list. If you can suggest any additions, or have any feedback, please contact enquiries@mcguinnessinstitute.org. Thank you for your interest.
The table below is work in progress. Last updated September 2023.
List of Climate Change Case Law
| Name + additional respondents | Citation | Issue at hand | Decision | Final decision date |
|---|---|---|---|---|
| Lawyers for Climate Action NZ v Minister of Climate Change | [2023] NZHC 1835 | [Judicial Review] Whether the Minister had reasonable grounds to be satisfied that the settings laid out in the Climate Change (Auction, Limits and Price Control for Units) Amendment Regulations 2022 were consistent with the requirements of the Climate Change Response Act 2002. | The Minister admitted he had erred prior to hearing the case and agreed with LCANZI to reconsider the settings for the 2023-2027 period in accordance with the Act. | 13-Jul-23 |
| Movement v Waka Kotahi + Minister of Transport | [2023] NZHC 342 | [Judicial Review] Whether Waka Kotahi ‘failed to take into account various issues in relation to climate change, particularly the reduction of greenhouse gas (GHG) emissions, when it prepared and adopted its national land transport programme (NLTP) for 2021-2024’. | The application was dismissed. While climate change was an identified strategic priority under the Government Policy Statement (GPS) in relation to the NLTP, no priority took primacy over another. ‘The preparation and adoption of the NLTP 2021-2024…met the legislative requirements and requirements of the GPS 2021’. | 1-Mar-23 |
| Students for Climate Solutions Inc v Minister of Energy and Resources | [2022] NZHC 2116 | [Judicial Review] Whether the Minister ‘failed to substantively consider the climate change implications’ of granting petroleum exploration permits to two companies as mandatory relevant considerations, inter alia. | The application was dismissed. The Minister’s decision adhered to legislative requirements. Substantively taking into account climate change considerations would have been unlawful per her discretionary power under the legislation. Climate change considerations were also not relevant under Treaty of Waitangi consistency obligations. | 24-Aug-22 |
| Smith v Attorney-General | [2022] NZHC 1693 | [Strike out application/further particulars] Whether the Crown breached a duty owed by them to the plaintiff to ‘take all necessary steps to reduce NZ emissions and to actively protect the plaintiff and his descendants from the adverse effects of climate change’ (a novel duty); whether the Crown breached the NZ Bill of Rights Act 1990 (ss 8, 20) by insufficiently regulating emissions via the CCRA and RMECCA; whether the Crown breached its guarantees and legal duties under te Tiriti o Waitangi through failure to or inadequacy in responding to or mitigating climate change. | The statement of claim is struck out in entirety. The novel duty claim was untenable as it was formulated lacking reference to existing case law and incremental development; its relief would undermine government policy goals and be ineffective in dealing with climate change issues. The NZBORA claim was untenable as the risk to life presented by climate change was not sufficiently proximate to be “real and identifiable” (s 8); s 20 does not confer a positive protective duty on the Crown and there are no specific alleged breaches of their obligation not to deny ethnic minorities their cultural rights and freedoms. The Tiriti o Waitangi claim was untenable as any fiduciary obligations arising from the Crown would be owed to the public generally, and te Tiriti itself does not give rise to free-standing obligations. | 15-Jul-22 |
| All Aboard Aotearoa Inc v Auckland Transport + Regional Transport Committee for Auckland; Auckland Council | [2022] NZHC 1620 | [Judicial Review] Inter alia, whether the decision of the RTC to accept the 2021 Regional Land Transport Plan (RLTP) was unlawful in failing to take into account mandatory relevant considerations, namely consistency with the 2021 Government Policy Statement on Land Transport (GPS) and therefore breached s 14(a)(i) Land Transport Management Act 2003 (LTMA). | The application was dismissed. The RTC had to be satisfied that the RTLP was consistent with the GPS which they were entitled to find. Climate change considerations were not in the purpose of the Act; the RTC was not required to consider climate change. | 8-Jul-22 |
| Hauraki Coromandel Climate Action Inc. v Thames-Coromandel District Council | [2020] NZHC 3228, [2021] 3 NZLR 280, [2021] NZRMA 22. | [Judicial Review] Whether the Council’s decision not to endorse the Mayor signing the Local Government Leaders’ Climate Change Declaration was unlawful by reason of it being unreasonable and made erroneously in law. | The decision by the Council is reviewable because of the strong public interest in its nature, effects and significance. ‘Depending on their context, decisions about climate change deserve heightened scrutiny’, and the Council’s decision was not unreasonable. However the Council’s decision-making process was not lawful as it was required to consider how to comply with the LGA; ‘it did not do the required analysis and it did not consider what consultation with the District was required’. The Council directed to reconsider the decision in line with the LGA and its Policy. | 8-Dec-20 |
| Lawyers for Climate Action NZ Inc. v The Climate Change Commission | [2022] NZHC 3064 | [Judicial Review] Whether the inaugural advice of the Climate Change Commission under the Climate Change Response (Zero Carbon Act) Amendment Act 2019 was: a) based on logical or mathematical error; b) erroneous in that emissions budgets had to consider the 1.5C global goal as well as the 2050 net-zero target and wrongly grouped mandatory relevant considerations in recommending ""economically affordable"" budgets rather than ""ambitious but likely to be technically and economically achievable""; c) erroneous in law in recommending a MAB (modified activity-based accounting) method instead of the allegedly statute-mandated GHGI (Greenhouse Gas Inventory accounting) method for measuring progress towards meeting emissions budgets and 2050 target; d) irrational, unreasonable and inconsistent with the legislative purpose of contributing to the global 1.5C effort. | The application was dismissed. a) The Commission did not err in logic or mathematical application of IPCC modelling: use of the modelling was as an indirect comparator and it incorporated value judgements about contributions to global 1.5C effort. b) The statutory purpose was correctly understood in terms of the mandatory relevant considerations and both the 1.5C global effort and the 2050 target had to be considered - these were correctly applied in the advice. c) There was no statutory obligation to use GHGI as the applicable accounting method, therefore there was no error of law. d) "The advice was not irrational or unreasonable" and the judgements incorporated were based on the unique position of New Zealand with significant commercial forestry carbon sequestration and release. While the advice did not track to reduce net omissions by 2030 per the IPCC there was no statutory requirement to do so and the advice was therefore correct in law. | 23-Nov-22 |
| Smith v Fonterra Co-Operative Group Ltd (+ Genesis Energy Ltd, Dairy Holdings Ltd, New Zealand Steel Ltd, Z Energy Ltd, The New Zealand Refining Company Ltd, BT Mining Ltd) | [2020] NZHC 419, [2020] 2 NZLR 394, [2020] NZRMA 422. | [Strike out application: claims in tort] Whether the defendants, as parties involved in GHG emitting activities, are liable in tort law. The causes of action are as follows: a) Public nuisance: harm will be suffered from the "effects of dangerous anthropogenic interference with the climate system", that the rights of the public to health, safety, comfort, convenience and peace are, or will be, interfered with by the defendants' releases of GHG and that this was known since 2007. b) Negligence: the defendants owe the plaintiff (and persons like him) a duty to "take reasonable care not to operate their businesses in a way that will cause him loss by contributing to dangerous anthropogenic interference in the climate system", that this duty has been breached, and that he has or will suffer loss from the breach. c) The defendants owe the plaintiff a duty, cognisable at law, to cease contributing to climate change through their emissions of GHG. | The public nuisance and negligence claims were struck out. The new duty was not struck out. a) The public nuisance claim was struck out as untenable because the plaintiff will not suffer a special harm, and the HC does not have the authority to reconsider the requirement of special harm in the tort, and there was no underlying illegality. b) The negligence claim was struck out as untenable because the actions of the defendants and the alleged harm suffered by the plaintiff was not sufficiently proximate to satisfy a causation requirement in a negligence claim, as the defendants themselves were minute emitters in the global context. c) The inchoate duty proposed was not struck out as it could not be ruled untenable in the general development of the common law. The remedy sought would go beyond the scope of the Court's role in effectively requiring a bespoke emissions monitoring scheme. | 3-Jun-20 |
| Smith v Fonterra Co-Operative Group Ltd (+ Genesis Energy Ltd, Dairy Holdings Ltd, New Zealand Steel Ltd, Z Energy Ltd, The New Zealand Refining Company Ltd, BT Mining Ltd) | [2021] NZCA 552, [2022] 2 NZLR 284, [2022] NZRMA 65. | [Appeal from HC] Whether the HC was correct to strike out and allow the respective causes of action (per above). | All causes of action were struck out. The scheme of the tort law is not suited to deal with climate change issues. In regard to the claims themselves: a) Public nuisance: the public rights claimed to be affected are actionable; independent illegality underlying the tort is not a prerequisite for liability; but the plaintiff does not suffer the requisite special damage; and the causation aspect was relevant and fatal to this claim b) Negligence: there is no proximate connection between the defendants and the plaintiff's harm to recognise a duty of care and policy considerations outweigh the recognition of a duty. c) New tort: the reasoning behind striking out the prior two claims and the general scheme of tort law is irreconcilable with the proposed tort. | 21-Oct-21 |
| West Coast ENT Inc (+ Royal Forest and Bird Protection Society of New Zealand) v Buller Coal Ltd | [2013] NZSC 87, [2014] NZLR 32, [2014] NZRMA 133. | [Appeal from HC: declaratory relief on proper interpretation of legislation] Whether the appellants can argue that the climate change effects of burning coal can be taken into consideration in resource consent applications for coal mining. The 2004 Amendment Act's purpose requires local authorities not to consider the effects of GHG emissions, but the relevant provisions of the Amendment Act apply only to decisions and rule-making relating to GHG emissions. Thus does this purpose preclude consideration of GHG emissions in relation to other decisions and rule-making? | [Majority] The argument cannot be made. The statutory scheme and purpose does not permit the appellant's construction of an argument which would allow GHG emissions and climate change effects to be considered except in relation to national standards. Climate change arguments were not intended to be made "in relation to rules and consents relating to activities which indirectly result in, or facilitate the discharge of greenhouse gases." A different interpretation would subvert the amended scheme of the legislation. | 19-Sep-13 |
| Royal Forest and Bird Protection Society of New Zealand Inc (+ West Coat ENT) v Buller Coal Ltd (+ Solid Energy Ltd) [Forest and Bird v BCL] | [2012] NZHC 2156, [2012] NZRMA 552. | [Appeal from NZEnvC] "Whether the Resource Management (Energy and Climate Change) Amendment Act 2004…removed the jurisdiction of consent authorities to consider the effects on climate change of the discharge of greenhouse gas emissions from the end use of coal." | The statute does not permit considertation of the effects on climate change of GHG emissions. 1) The express purpose allows regonal authorities to plan for the effects of climate change but not consider the effect of GHG discharge, which is left to the national level to regulate. 2) The relevant s 104(1) is subject to the scheme of the RMA as is amended. 3) The authority's jurisidction is limited to assessing the effects of "allowing the activity" i.e coal extraction, and any discharge of emissions must be separately allowed in NZ. 4) Allowing district level management of GHG effects would grate against the policy and purpose of the Act despite its attractive construction considering principles of sustainable management. 5) The concern that local authorities' ability to mitigate climate change will be inhibited is misplaced. In relation to overseas discharges of GHG, this gap was not in comtemplation of legislators and is not to be filled by s 104(1). | 24-Aug-12 |
| Thomson v Minister for Climate Change Issues | [2017] NZHC 733, [2018] 2 NZLR 160. | [Judicial Review] Whether A) the emissions reduction target set by the Minister under domestic legislation should have been reviewed after updated scientific information; B) the 2030 emissions reduction target set pursuant to an international agreement is amenable to review and failed to take into account relevant considerations (namely: the cost of 'business as usual', the effects on citizens in Tokelau, the consensus showing the inadequacy of INDCs); C) The NDC (Nationally Determined Contribution) was irrational/unreasonable; D) a writ of mandamus should be issued in relation to the NDC. | The application was dismissed. A) The release of the new information should have been considered in relation to the 2050 target, but a change of government renders relief unecessary. B) The justiciability of a claim depends more on the ground for review than the subject matter: but the modelling used did not involve a failure to take into account a mandatory relevant consideration, the Tokelauan impact was a mandatory relevant consideration but the existing decision-making framework sufficently accounts for this, and the NDC decision was not ultra vires despite the combined insufficiency. There was no reviewable error made. C) The NDC targets were not unreasonable or irrational, especially in comparison to other targets - it is a decision for the Exeuctive to make on the whole. There was no reviewable error made. D) Unnecessary to consider. | 2-Nov-17 |