Lawyers for Climate Action Seeks Leave to Appeal to Supreme Court
Lawyers for Climate Action NZ has today filed an application with the Supreme Court for leave to bring an appeal on the level of ambition of New Zealand’s climate targets. The application follows the Court of Appeal’s decision earlier this year dismissing the group’s case against the Climate Change Commission and the Minister of Climate Change.
We are generally very supportive of the Climate Change Commission’s advice, and they play a critically important role in New Zealand’s climate response.
However, we believe the Climate Change Commission made errors in its 2021 advice to the Minister of Climate Change on Aotearoa New Zealand’s domestic emissions budgets and 2030 Nationally Determined Contribution under the Paris Agreement. These errors have meant that New Zealand’s climate targets aren’t consistent with what is required to limit warming to 1.5°C.
Why we’re taking the case to the Supreme Court
We started Lawyers for Climate Action NZ in 2019 to hold those making decisions on climate change to account, ensuring that they follow their legal obligations.
Climate change is one of the greatest challenges of our time. The research has been clear for years that the world needs to cut its emissions in half by 2030 to protect the planet and take advantage of the opportunities that climate action creates. However, despite this urgency, New Zealand hasn’t yet made the shifts and decisions required to secure a safe future.
In 2021, the Minister for Climate Change set New Zealand’s domestic and international climate targets on the back of advice from the Climate Change Commission, an independent expert entity that advises the Government on climate policy.
These targets aren’t ambitious enough. Supported by seven independent experts, we’re arguing that the Commission’s advice is inconsistent with its statutory framework and that, as a result, New Zealand’s targets are far less ambitious than they need to be. If our targets aren’t ambitious enough, this affects our entire climate policy response.
The Climate Change Response Act requires our emissions budgets to be “set with a view to contributing to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5°C above pre-industrial levels”. However, despite the science telling us that the world needs to halve emissions by 2030 to reduce warming to 1.5°C, our emissions budgets allow net emissions in 2030 to be higher than they were in 2010.
We do not believe that allowing our net carbon dioxide emissions to increase can be consistent with the IPCC’s analysis or the Paris Agreement goal of limiting global warming to 1.5°C degrees.
We first filed this case in 2021, and the Court of Appeal released its judgment on 28 March 2025. The Court of Appeal found that although the Commission’s advice could be judicially reviewed, the Commission’s approach was not unlawful. We respectfully disagree. Because it is such an important issue, we are asking the Supreme Court to consider it. If leave is granted, it will be the first time a case about the Climate Change Response Act 2002 reaches our top court.
The Court of Appeal Judgment
Although the Court of Appeal confirmed that the Climate Change Commission’s advice was in principle amenable to judicial review, it dismissed our grounds of review.
The Court of Appeal largely adopted the reasoning of the High Court. It agreed that it was “self-evident” that the Climate Change Commission did not apply the International Panel on Climate Change’s analysis on what is required to limit warming to 1.5°C on a like-for-like basis. However, the Court found that the Commission’s approach was not unlawful.
The Court also agreed that emissions budgets are intended to serve the dual purpose of the Climate Change Response Act, being both the 2050 target and contributing to the goal of limiting warming to 1.5C. However, it did not accept our argument that this makes contributing to the 1.5C goal a substantive bottom-line requirement under the Act.
Helpfully, the judgment held that there was a “high public interest” in this case, noting that we raised legal issues that are of “central importance” to “New Zealand’s response to the existential threat to humanity posed by climate change”. Accordingly, the Court of Appeal did not make an order of costs against Lawyers for Climate Action.
Our core arguments in more detail
We’re bringing two main arguments to the Supreme Court. We have decided not to continue two of our arguments that we had brought in lower courts (relating to forestry accounting and unreasonableness).
Emissions Budget Challenge: Failure to meet the purpose of contributing to 1.5°C goal
We’re asking the Court to find that the Commission’s budget advice was not consistent with the purpose of the Climate Change Response Act 2002, which is to: “provide a framework by which New Zealand can develop and implement clear and stable climate change policies that contribute to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5°C above pre-industrial levels” (the 1.5°C Goal).
We say this 1.5°C goal is a bottom-line requirement for our emissions budgets, rather than something aspirational that can be treated as a cross-check. Alternatively, we argue that the Commission failed to meaningfully grapple with what is required to contribute to the 1.5°C goal in light of NZ’s obligations under the Paris Agreement and the right to life under the New Zealand Bill of Rights Act 1990.
NDC Challenge: Failure to align with global emissions reduction pathways for 1.5°C
When advising the Minister on New Zealand’s NDC under the Paris Agreement, the Commission purported to apply the 1.5°C net emissions reduction pathway set out in the IPCC’s 2018 Special Report to ascertain what New Zealand’s target should be.
The lower courts agreed that the Commission did not do this on an apples-for-apples basis, instead applying the net emissions reduction pathways set out in the report to New Zealand’s gross emissions.
The question for the Supreme Court, if leave is granted, will be whether this approach was lawful. We argue that it was unlawful because:
The Commission’s approach was not mathematically meaningful or logical, and did not provide a valid basis either to assess whether the NDC was consistent with the 1.5°C goal, or for the Minister to decide to adopt a new NDC.
The Commission’s approach was not communicated in a transparent or readily understandable way. This continues to impact public understanding of our national climate response.
What we want to achieve
We want to clarify what our climate framework law requires of the Climate Change Commission and the Minister for Climate Change, and influence future decisions.
More specifically, if leave is granted, we will be seeking declarations that the Climate Change Commission’s advice on what would constitute a 1.5°C compliant NDC, and on our emissions budgets, was inconsistent with the Climate Change Response Act.
We’re also seeking an order requiring the Minister for Climate Change to reconsider the 2026-2030 and 2031-2035 emissions budgets adopted under the Climate Change Response Act.
Who’s paying for the litigation?
Lawyers for Climate Action NZ is a registered charity and a responsible public interest litigant with no financial interest in the litigation. Although litigation is notoriously expensive, our lawyers are working for free and have done so since we first brought the case in 2021.
The High Court and Court of Appeal did not award costs against Lawyers for Climate Action NZ. We will be asking the Supreme Court to again apply the public interest costs exemption to enable us to bring the case.
What happens next
Before we can test these arguments in the Supreme Court, the Court has to first decide that it will hear the appeal. We have filed a ‘leave to appeal’ application, where we argue that it’s in the interests of justice for the Supreme Court to hear this case as it engages such important issues.
The Court will decide whether to grant leave over the next couple of months, after which, if leave is granted, it will set down a hearing date.
Lawyers for Climate Action NZ Inc is an incorporated society of lawyers committed to using the law to drive action on climate change. It is bringing this case in the public interest, to clarify the law and ensure better decision-making into the future. Our lawyers are working for free, and have done so since we first filed proceedings in 2021.
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