Lawyers for Climate Action Article in Capital Letter
“Lawyers for Climate Action Group Ready for Challenges Ahead”
Geoff Adlam, 18 December 2023
This article was originally published in Capital Letter on 18 December 2023. It is republished with permission, and the original article can be accessed here: https://www.capitalletter.co.nz/news/climate-change/149715/lawyer-climate-action-group-ready-challenges-ahead
As Lawyers for Climate Action NZ Inc readies itself for this country’s first greenwashing case, the organisation is working to develop and grow its expertise and strength in using the law to fight climate change.
“I am working on growing Lawyers for Climate Action’s capacity and outreach so that we can bring more litigation, do more policy advocacy, and run more education and community-building events for lawyers,” says executive director Jessica Palairet.
In November she became the first employee of the organisation which was founded in May 2019 and now has a membership of 350 lawyers across the country. Until now it has been entirely run by volunteers.
“The purpose of my role is to help Lawyers for Climate Action scale up so that we can enhance our impact in this critical decade. I have worked with the Board to develop a new three-year strategy, and my job now is operationalising and implementing that strategy.”
She says an important part of this is to build relationships with new partners, including potential fundraising partners, the wider legal community, and those already working on climate issues.
“We are also doing exciting work around how we can build an even stronger community among our members, and better utilise the fantastic legal talent and expertise within our membership to make a bigger difference.
“Our vision is for Aotearoa New Zealand to be a global leader in the fight against climate change. The law is one of the most important tools in the response to climate change – we need the law to help set new norms, increase accountability, and drive change.”
Action in New York
Palairet returned to New Zealand from the US to take up her role. After studying law at the University of Auckland she worked as a Judge’s Clerk and junior barrister at Shortland Chambers before completing an LLM at New York University, specialising in global climate litigation.
“I want to dedicate my career to what I think is the biggest challenge facing our world: our changing climate. I chose to study at NYU as it has a particularly strong focus on public impact litigation, and I valued the opportunity to be able to study overseas and make international networks and connections.”
While at NYU she worked at the Climate Law Accelerator, a global organisation connecting scholars, activists, litigants, and community groups from around the world working on climate litigation.
“I helped build a toolkit of leading international climate litigation cases, analysing legal strategies and case law.”
She also worked for the United Nations as an International Human Rights Fellow, working on climate and sustainability issues. There she helped run workshops with academics and experts on the limits of growth with a particular focus on the impacts of growth on the environment, and with the Special Rapporteur for Extreme Poverty and Human Rights on research on protection of human rights and respect for planetary boundaries.
Strategic litigation
Back in New Zealand she was quickly involved in one of the three key focal points for Lawyers for Climate Action – the bringing of strategic litigation to hold decision-makers to account.
Between 22 and 24 November lawyers for Lawyers for Climate Action were in the Court of Appeal appealing the High Court’s dismissal of its application for judicial review of the Climate Change Commission’s advice to the Minister of Climate Change and the Minister’s subsequent decision to amend New Zealand’s nationally determined contribution under the Paris Agreement. Lawyers for Climate Action is arguing that New Zealand’s climate targets are far less ambitious than they need to be. The decision is reserved.
Straight after that hearing Lawyers for Climate Action was the third plaintiff in proceedings brought against Z Energy Ltd in the High Court – New Zealand’s first action in the rapidly developing field of greenwashing. This happens where a company uses advertising and public messaging to appear more climate friendly and environmentally sustainable than it really is.
Lawyers for Climate Action has joined with Consumer NZ and the Environmental Law Initiative. The statement of claim says statements made by Z Energy including that it was “getting out of the petrol business” breached section 9 of the Fair Trading Act 1986 by misleading New Zealanders with its public messaging. The parties are seeking a declaration of breach, a mandatory injunction requiring it to publish corrective advertising and a section 41 order preventing it from making emissions reductions representations.
The proceedings are a good example of Lawyers for Climate Action’s philosophy of using the law to confront and to fight climate change, beyond rhetoric and protest. The Commerce Commission declined to investigate an August 2022 complaint by Lawyers for Climate Action, although it has been vocal in the past about greenwashing being a priority. Lawyers for Climate Action says it is time to move beyond education and to hold the major emitters accountable for their public statements.
“Our litigation is focused on the high-level, strategic levers that we think will make the biggest difference to Aotearoa’s climate response. So far we have brought four novel and important cases,” says Palairet.
While the Climate Change Commission proceedings now under appeal are a set-back so far, Lawyers for Climate Action had an important win with successful judicial review of the New Zealand Emissions Trading Scheme.
It was also part of the unsuccessful All Aboard Aotearoa case where it sought a declaration that Auckland Transport and Auckland Council had acted unlawfully in relation to the Regional Land Transport Plan 2021-2031.
The focus ahead
As well as strategic litigation, Palairet says Lawyers for Climate Action’s strategy focuses on shaping the development of more effective climate laws and policies through well-researched submissions and constructively working with policymakers.
Education of the legal community on climate-related legal issues and developments is also a key direction.
“We aim to build a community of climate-conscious lawyers that see themselves as part of the solution to the climate crisis. As part of this, we also run a pro bono matching service, matching community members who have climate-related legal issues to lawyers who are able to act pro bono.”
Looking ahead, she says a key is to continue building the organisation.
“Shifting from a model that’s 100 per cent run by volunteers is an exciting and critical step for us to take as an organisation, and getting that right is a big focus. In time we would like to have more staff to support the organisation, particularly so that we are able to not rely just on volunteers for our legal work.”
Fundraising is also an important focus. Lawyers for Climate Action registered as a charity in May 2022. Its latest performance report to Charities Services for the year to 31 March 2023 showed revenue of $71,690, mostly coming from donations and fundraising, and expenses of $34,043 – most of which were court hearing and filing fees. It had $86,401 in the bank.
“Until now, Lawyers for Climate Action has been run with very little funding – driven largely by the work of our volunteers, particularly those involved in litigation and the excellent and passionate committee members we have had over the years. And so a large focus of my role is building up our fundraising activities and building new partnerships,” Palairet says.
“We haven’t proactively fundraised before, but are now looking for more supporters able to help us as we grow as an organisation.”
Lawyers part of the solution
Palairet says the organisation is currently developing its litigation and advocacy priorities for 2024. She says there is a focus on working constructively with the new government as it sets its climate agenda, focused particularly on ensuring New Zealand meets its international climate commitments.
“We are also going to run more webinars and other events connecting like-minded lawyers, and also providing opportunities for lawyers to learn more about climate-related legal developments and what it means to be a ‘climate conscious lawyer’.”
Lawyers can be part of the solution to the climate crisis, she says, by making sure they are aware of the risks and implications of climate change, both generally but also in terms of how it will affect their practice.
“Climate change will raise novel legal issues that will affect lots of practice areas. One example is the myriad of risks businesses will face from climate change – from supply chain disruption, to legal and reputational risks. To provide well-rounded advice, lawyers need to be able to understand and address these risks head-on, and proactively consider these issues in their legal practice.
“Lawyers and law firms can also lead from the front – such as by lowering their own carbon footprints, and taking on pro bono cases for members of the community trying to make a difference for the climate.”