Source: Radio New Zealand
Climate Action and the Environmental Law Initiative are asking the High Court to declare Climate Change Minister Simon Watts’ decisions unlawful. RNZ / Mark Papalii
A landmark legal case that argues the government’s plan to tackle climate change is unlawful and risky will go ahead today.
Climate advocates will argue that the government broke the law when it dismantled dozens of climate policies soon after the 2023 election, before it had consulted the public.
They also say the current plan relies too heavily on planting trees to offset greenhouse gas emissions, instead of reducing the amount of emissions the country produces in the first place.
Lawyers for Climate Action and the Environmental Law Initiative (ELI) are jointly taking the case against Climate Change Minister Simon Watts.
The organisations are asking the High Court to declare the minister’s decisions unlawful and to throw out the current emissions plan so a new, more ambitious one can be prepared.
An environmental law expert says the case is “hugely significant” and has similarities to challenges in the UK, which resulted in changes to that government’s climate plans.
Under New Zealand’s climate laws, the government must produce five-yearly emissions reductions plans, which set out how the country will meet its domestic climate targets.
At the moment, those targets are to reduce carbon dioxide and other long-lived gas emissions to net zero by 2050, and to reduce methane emissions to 14 to 24 percent below 2017 levels by the same deadline.
The methane target was originally a 24 to 47 percent reduction by 2050, but the government changed this last year in response to lobbying from the agricultural sector, which produces half of New Zealand’s methane emissions.
There are also interim targets for 2030: to halve long-lived gases from their 2005 levels, and a 10 percent reduction of methane emissions from 2017 levels.
Subsidies for electric vehicles, and a fund to help businesses electrify their coal- and gas-fired industrial processes, were among policies that the government chose to scrap in late 2023.
ELI senior legal researcher Eliza Prestidge-Oldfield said climate laws allowed the government to make changes to an emissions reduction plan, but they must consult on any changes that are more than minor or technical.
Instead, the government scrapped large parts of the plan before formally amending it.
“By the time the plan was actually amended, there were over 30 initiatives that were being consulted on where the decisions had already been made,” she said.
“What the government should have done is consulted on any amendments before it locked in those changes.”
‘Phenomenal’ reliance on pine planting
The latest emissions reduction plan, which kicked in at the start of this year, was not really an emissions reduction plan at all, Prestidge-Oldfield said.
“Instead of having arranged policies that might substantively reduce our reliance on fossil fuels, or replace sectors of the economy that currently are reliant on out that equipment with new equipment, they’ve just relied on baseline modeling and trees offsetting carbon emissions.”
The reliance on forestry planting in the plan was “quite phenomenal”.
“The reliance on forestry means that people aren’t going to be doing the other things that they can do, that are technically feasible now and may even have a good payoff, unless they’re cheaper than a forestry credit,” she said.
Relying on mostly pine plantations was “inherently risky”, she said.
“As the climate heats, the risk of them burning down is pretty significant. We’ve already seen issues with extreme weather events, windfall, forestry slash – so these are not a robust solution in and of themselves.”
Lawyers for Climate Action executive director Jessica Palairet said using trees and other types of carbon sequestration was an important part of the climate response, because it would help to remove carbon dioxide already warming the planet.
It could not simply replace reducing emissions at their source, though.
“The government shouldn’t treat reductions and removals as equivalent,” Palairet said.
“They’re different, they needed to be treated differently under the law, and we don’t think the minister even turned his mind to whether this plan of planting our way out of the climate crisis complied with international law.”
The global Paris Agreement did not explicitly state that governments must prioritise reducing emissions over removing them from the atmosphere, Palairet said.
“But there’s numerous parts … that do suggest a preferencing of reductions over forestry removals.”
States were also expected to take a precautionary approach to reducing their emissions, she said.
“So reduce emissions now, rather than keep them at high levels and leave them for future generations to deal with.”
Case is significant – environmental law expert
The hearing in Wellington will add to a growing body of climate law cases being levelled at governments around the world.
An advisory opinion issued by the International Court of Justice last year found that developed countries like New Zealand were expected to lead the way in making emissions reductions, and that the way was open for countries to sue each other for failing to take action.
Auckland University associate professor Vernon Rive said the latest case was “hugely significant”.
“It concerns some quite fundamental planks of the government’s policy and approach on climate mitigation,” he said.
“It tests whether from a legal perspective the policy reliance on the [emissions trading scheme] – almost to the exclusion of everything else – is a legitimate approach.”
The outcome could set a precedent for how emissions reduction plans were set, especially about the level of certainty the government needed to have that a plan could meet an emissions budget.
“I don’t think anyone expects there to be 100 percent certainty, because this involves modelling and predictions of what will happen in the future,” Rive said, “But there is an expectation of a level of certainty and robustness and credibility.”
That included what wiggle-room there was if some policies did not succeed, or something else unexpected happened.
“The government’s plan – by its own recognition – is cutting it very, very fine,” he said. “There’s a very small buffer for achieving it or not achieving it.”
New Zealand’s system of setting greenhouse gas budgets and emissions reduction plans was similar to Ireland and the UK, where governments had also faced legal challenges.
“[There have been] two significant cases in the UK where environmental interests have successfully challenged the UK government’s emissions reduction plans, or their equivalent,” Rive said.
“The court has said look, there are just too many uncertainties here involved in your plan – you need to go back and do it again, and do it properly this time.”
New Zealand’s legal system was similar to the UK’s, so he expected the courts here to take a similar approach to the law.
“Each of these cases will turn on their own facts … but this is a very credible claim.”
The hearing is expected to last three days, with a reserved decision later this year.
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand
