Ōtautahi – Is climate change a money train for lawyers involved in climate litigation, whatever the outcome?
Worldwide, there appear to be about 1600 legal cases involving climate. About half in the USA.
A number relate to targets, ambition and climate policy. Too much, too little, too soon, too late. Of the cases decided, about half are wins for the plaintiffs. The impact on emissions is much less clear.
Where the action is to delay a new source of emissions, for example consenting a new airport runway or a new coal mine, a win in court is more likely than when the legal action seeks a reduction in current emissions, such as closing an established coal fired power station.
The unintended consequences of legal action to reduce emissions can be to legitimise legal action not only by those seeking emissions reductions but by those defending the right to continue actions associated with emissions.
Legal action to set more ambitious targets for emissions reductions might result in targets with lower likelihood of being technically feasible or socially acceptable and therefore having a lower probability of being achieved.
It is action not just ambition that is required to reduce emissions.
Litigation is very often associated in delayed action whether that legal action is to maintain, increase or reduce emissions. Increased uncertainty causes slower behaviour change and lower rates of innovation and technology uptake.
There is a judgment to be made about what Aotearoa’s fair share of global emissions over this decade should be. Certainly, our share and total emissions need to be much lower than the current levels.
Who should make the judgment as to by how much lower – scientists, economists, lawyers, judges, independent experts or our elected leaders?
There is a judgment to be made as to how much of the reduction in emissions should be borne by New Zealand society and how much New Zealand should pay others to do more than their share.
What share of emissions reduction by New Zealand should be met by which sectors? Agriculture, transport, energy production, forestry? Again who, should make the call?
New Zealand squandered a decade of climate policy development and climate action. We met our Kyoto obligations by planting exotic forests and buying offshore credits that did nothing to reduce domestic emissions and little if anything to permanently reduce global emissions.
Now we must face our future. Our elected leaders hold the decision rights.
Is the courtroom the right place to determine the direction of policy to address emissions reduction?
If some lawyers are right and the law requires a level of emissions that cannot be achieved by an emissions reduction plan consistent with the law, might the law need to be changed?