Climate Litigation: We’re suing the Climate Minister over the government’s emissions reduction plan
We’ve launched major legal proceedings against the Minister of Climate Change, alleging that the Government’s emissions reduction plan fails to fulfil basic requirements of the law.
Along with our friends at the Environmental Law Initiative, we are arguing that the plans don’t meet the requirements of the Climate Change Response Act 2002. This is the first challenge to an emissions reduction plan under the Act - and it is also the first case in the world to challenge a government’s heavy reliance on tree planting to achieve climate targets.
We’re filing this case because it’s critical our government is held to account. The world’s leading scientists have made clear that this is the critical decade for climate action - but the NZ government has been quietly cutting climate policies, and relying on planting pine trees as an alternative.
Under the Climate Change Response Act, the Government has to put in place a credible emissions reduction plan for Aotearoa that sets out economy-wide policies and strategies “for meeting” our emissions budgets. Our emissions budgets are stepping stones towards NZ achieving its 2050 net-zero target. Yet, in the face of warnings from our Climate Change Commission that there are “significant risks” around whether Aotearoa New Zealand will meet its climate targets, the government cancelled 35 climate policies and actions that were part of the first emissions reduction plan (2021-2025) - without consulting the public first, as required by law.
It then put in place a second emissions reduction plan which is almost devoid of actions or policies for reducing emissions at source. The second emissions reduction plan is unlikely to ensure emissions stay within the budget, has an unrealistic approach to risk management, and assumes that 95% of the planned emissions reductions will occur by themselves without policies or strategies.
The government’s plan also relies heavily on offsetting NZ’s emissions with forestry plantations - projecting an additional 700,000 ha of tree planting by 2050. This is despite warnings from the Climate Change Commission that tree planting is no substitute for reducing emissions at source. It locks in vast pine plantations for future generations and runs up against our obligations under the Paris Agreement. The science is clear that forestry is important, but it’s not a substitute for reducing our combustion of fossil fuels.
The Minister has also made the pathway for achieving the third emissions budget incredibly difficult. Left unchallenged, it will be a huge burden for the future.
The Government’s plan does not give confidence; in our view, it is neither credible nor capable of achieving its purpose, which is to reduce emissions and set NZ up for a thriving low emissions future. We successfully challenged the previous Labour/Greens government on its climate decisions. We’re bringing this case now because we believe it is necessary to take this case to protect the interests of the public, and to test these important legal provisions for the first time.
The application for judicial review has been filed with the High Court and is awaiting a court date. Dr James Every-Palmer KC (LCANZI Co-Founder) and David Bullock are acting for LCANZI in this proceeding.
The case in more detail:
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After they were elected, the Government discontinued 35 ‘actions and projects’ in ERP1, including discontinuing the Clean Car Discount and cancelling the Government Investment in Decarbonising Industry fund. See the full list of project and actions cancelled by the Government.
The applicants will argue that the Climate Change Response Act imposes guardrails on government’s ability to change and cancel climate policies on the fly. This serves the purpose of the Act, which includes providing a framework for New Zealand to “develop and implement clear and stable climate change policies” that stretch across political cycles and provide predictability (s 3). The Minister failed to ensure the plan had the required degree of currency, coherence, and also failed to properly consult on the changes.
In particular, on consultation, the applicants will argue the Act required the Minister to meaningfully consult with the public on any changes that were more than “minor or technical”, following the same process used for preparing the Plan (s 5ZI). By the time the Government got around to consulting on the changes, consultation was treated as an ex post facto tick-box exercise, and did not contain sufficient information for the public to understand the changes and provide informed responses.
In seeking declarations only, Lawyers for Climate Action NZ and ELI are focused on creating a precedent that clarifies how governments can change climate policies and strategies during emission budget periods.
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The Minister of Climate Change is under a legal duty to ensure that emissions budgets are met (s 5X). To support this, the Minister is required to prepare and publish emissions reductions plans “setting out the policies and strategies for meeting the relevant emissions budget” (s 5ZG).
The second emissions reduction plan purports to set out a plan for meeting the next budget, but on its own terms it has a wide uncertainty margin (+/- 16 million tonnes of CO2-e). It also projects that New Zealand won’t achieve our 2035 target. Lawyers for Climate Action NZ and ELI will argue that:
the plan doesn’t have a sufficient buffer for ensuring that the budget is met;
it’s unlawful for the plan to not set a credible path for meeting future budgets;
the Minister didn’t consider the quantified impacts of a range of different risks, such as the potential for higher coal use in electricity generation and industry due to the impact of gas shortages on gas price and availability on users other than Methanex - which is not included in the modelling;
the plan takes an unrealistic and inadequate approach to risk management, relying on a “wait and see” approach it calls “Adaptive Management”.
The second emissions reduction plan also takes an offsetting-led approach to our climate response, with government projections anticipating that 700,000 hectares of land will be converted into forestry by 2050 for NZ to meet its targets. Lawyers for Climate Action NZ and ELI will argue that the plan proceeds on a fundamental error of fact - that forestry offsets and reductions are fungible, when that’s not the case. They will also argue that the Government didn’t consider whether such an offsetting-heavy approach was consistent with our obligations under the Paris Agreement.
This will be one of the first legal cases in the world challenging a government’s pursuit of a climate strategy that relies so heavily on offsetting rather than emissions reductions at source.
In addition, around 95 per cent of the emissions reductions relied on by the Government are the result of a model which the Government calls the “emissions baseline” - a complex model not clearly linked to actual policies or strategies. Only around 5% of the projected emissions reductions come from policies actually included in the second emissions reduction plan. Lawyers for Climate Action NZ and ELI will argue that this created two issues for the Government:
First, it meant that the Government’s consultation for the second emissions reduction plan was unlawful as the consultation materials didn’t contain enough detail about the assumptions and policies included in the baseline. This meant the public weren’t able to provide informed responses and understand the government’s emissions reduction strategy.
Second, the projected reductions in the emissions baseline are the result of modelling assumptions, and not “policies and strategies” for meeting Emissions Budget 2 as required by s 5ZG(1).
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Description text goIn terms of relief, Lawyers for Climate Action NZ and ELI are seeking:
For the First Emissions Reduction Plan (2021-2025), declarations that the Minister erred in law by:
failing to maintain a current plan;
failing to consult with the public as required;
ending up with an unlawful plan that lacks coherence and internal consistency.
For the Second Emissions Reduction Plan (2026-2030), declarations that:
the plan itself is unlawful;
the process followed when consulting on the plan was unlawful;
that the plan’s reliance on offsetting, which treats forestry offsets as equivalent to actual emissions reductions at source, is based on a fundamental error of fact, and the Minister failed to have regard to the potential for that assumption to result in an emissions reduction plan that is inconsistent with New Zealand’s obligations under international law
the Minister’s decision was not based on a fair, accurate, or adequate report from officials.
