When do decision-makers have a legal obligation to consider the climate impact of their decisions?
Who is a ‘public decision-maker’?
Any person or body that makes decisions of a public nature or exercises any form of public power. This includes cabinet ministers, ministries, councils, and statutory bodies like the New Zealand Transport Authority.
When do public decision-makers have to consider climate impact when making decisions?
Public decision-makers must consider the climate impact of their decisions if:
They are making a decision under an Act that requires them to do so; or
Climate change impact is so obviously material to their decision that failure to consider it would not be in accordance with the intention of the Act.
Often, an Act will spell out the considerations that a decision-maker must take into account when making a decision (‘mandatory considerations’). For example, the Climate Change Response Act 2002, amended in 2019 (the “Zero Carbon Act”) provides that all powers under the Act must be exercised in a manner consistent with its purposes, which include contributing to the global effort under the Paris Agreement to limit global warming to 1.5ºC.
Sometimes, an Act will spell out considerations that a decision-maker may take into account (‘permissive considerations’). Section 5ZN of the Zero Carbon Act permits all public decision-makers to take the 2050 zero carbon target and national carbon budgets into account in performing a public function, power, or duty. During deliberations over the bill, LCANZI argued that the subsequent clause (which said that there could be no legal remedy if the 2050 target or carbon budgets were not taken into account) should be deleted. We argued that the courts must have the power to determine the appropriate remedy if the decision-makers are not taking the right things into account, and this was accepted.
In addition to explicit mandatory and permissive considerations, a court may find that some things which are not explicitly referred to in an Act (or which are only referred to as permissive considerations) are nevertheless so obviously relevant that they must be taken into account. LCANZI holds the view that the 1.5ºC target, the 2050 target, and the carbon budgets are so obviously material to decisions in some areas, like the transport system, that they must be taken into account. We’re looking forward to testing this in court in the Mill Road judicial review (discussed below).
What happens if a public decision maker fails to consider climate impact?
If a public decision maker makes decisions that aren’t consistent with the law or with their statutory powers, then anyone affected can apply to the court for judicial review to determine if the decisions are legal or not.
For example, LCANZI has joined with other climate action organisations to form All Aboard Aotearoa Inc., which is judicially reviewing the decision of the Government and NZTA to fund the Mill Road project, a proposed new four-lane highway in South Auckland which will increase transport emissions. All Aboard is challenging the Mill Road decision on the basis that the Government and NZTA failed to take into account or have proper regard to the climate impact of the project, including the impact on New Zealand’s ability to meet the 1.5ºC target, the 2050 target, and the devastating impact of climate change both in New Zealand and globally.
What happens if the decision is successfully judicially reviewed?
The usual result of a decision being found to be unlawful is to render it invalid and of no effect. The court will typically ask the decision-makers to do their work again, lawfully this time.
What are key decisions for you to read?
Both in New Zealand and overseas, the courts are increasingly willing to get involved in decisions relating to climate change. This was the case in Thomson v Minister for Climate Change. Sarah Thomson challenged the failure by the then-Minister for Climate Change to review New Zealand’s Nationally Determined Contribution under the Paris Agreement. The court was willing to get involved and did find that there were problems with the decision, but that since the government had recently changed, there was no need to order a review.
Urgenda is a civil society group in the Netherlands, active on climate issues. For several years they have been arguing in the Dutch courts that the Dutch government’s efforts to cut emissions are insufficient: specifically, that they were not consistent with 1.5ºC and that therefore they are not consistent with the right to life, because climate change creates a foreseeable risk of loss of life. On 20 December 2019 the Dutch Supreme Court agreed. Like the European Convention on Human Rights on which this case depended, the New Zealand Bill of Rights includes a right to life. LCANZI argue that a similar positive legal obligation also applies in New Zealand and that decisions inconsistent with protection of the right to life are unlawful.