The Court of Appeal has thrown out an attempt to force seven large polluting companies to cut greenhouse gas emissions, saying climate change is a matter for national regulations and international coordination.
However, Mike Smith (Ngāpuhi and Ngāti Kahu), the Māori environmentalist behind it, says he will appeal.
“It was a bit unsurprising,” Smith says of the Court of Appeal decision. “The judgment was quite interesting – on some counts they said no and other counts they said maybe – and so we’re off to the Supreme Court, that’s the next step.”
A legal expert says the country’s highest court might decide to hear it, keeping alive the possibility of the New Zealand judiciary following the lead of courts around the world in making a radical decision on climate change.
“I certainly think there’s a prospect that the Supreme Court would grant leave for another appeal,” says Jenny Cooper QC, president of Lawyers for Climate Action. “It’s a matter of public importance – you can’t think of a more important issue – and it’s a novel area of testing whether the law is ready to develop on these points.”
The case against the ‘Polluting 7’
Iwi leader Smith launched proceedings against New Zealand’s biggest company Fonterra, farming giant Dairy Holdings Ltd, electricity generator Genesis Energy, which runs the Huntly power station, NZ Steel, owner of the Glenbrook mill, fossil fuel company Z Energy, NZ Refining Company, and BT Mining, a joint venture between Bathurst Resources and Talley’s Energy operating the Stockton mine on the South Island’s West Coast.
The claim said climate change science is clear and by continuing to pollute, or selling products that are burnt and emit greenhouse gases, the companies are contributing to environmental damage, such as increased temperatures, sea level rise, ocean acidification, and increasingly extreme weather events.
Smith wanted the court to require each company’s emissions to reach net zero by 2030.
If the big corporates didn’t know the harm they were causing, they should have, the claim said. The legal strategy was three-pronged: public nuisance, negligence and a proposed new “tort” – an area of law dealing with obligations of one party to another – breach of duty.
Smith, who has an interest in coastal land at Wainui Bay, Northland, took proceedings in his own name. The land has customary, cultural, nutritional, historical and spiritual significance to him which, he argued, made him more vulnerable to climate change than the average person.
The companies asked the High Court to strike out the case, stating, indisputably, they were operating within statutory and regulatory requirements. In March last year, Justice Edwin Wylie partially upheld their request, knocking out the first two causes of action, but allowed the novel breach of duty tort to continue.
All parties appealed the decision.
News of the Court of Appeal judgment comes as heavy rain (three months’ worth in 48 hours), rising rivers, and flooding prompted a state of emergency to be declared in Gisborne. A Newsroom analysis of eight decades of climate data revealed average summer temperatures are up 2°C in Auckland, Christchurch and Hamilton.
At the UN climate summit, COP26, in Glasgow, pressure is being heaped on governments to follow through on emissions reduction pledges.
At first blush, the Court of Appeal decision, released last month, is a stinging rejection for Smith and his pro bono legal team, led by Davey Salmon QC.
Justices Christine French, David Goddard and Mark Cooper said the polluting companies’ activities were not unlawful and tort law is concerned with unlawful activities.
“This is not the domain of tort law.”
Courts don’t have the expertise to set a regulatory regime. Smith’s remedy – net-zero emissions by 2030 – is inconsistent with New Zealand’s law of net-zero by 2050.
“Private litigation against a small subset of emitters, requiring them to comply with requirements that are more stringent than those imposed by statute, will not be effective to address climate change at a national level, let alone globally,” the justices said. “It will be costly and inefficient. And it will be arbitrary in its application and impact.”
The judgment goes on: “This pressing issue calls for a sophisticated regulatory response at a national level, supported by international co‑ordination.”
Striking out the claim doesn’t breach the Treaty of Waitangi, the court said. But that’s not to say courts have no meaningful role in responding to climate change.
“They do, in fact, have a very important role in supporting and enforcing the statutory scheme for climate change responses and in holding the Government to account. Our point is simply that it is not the role of the courts to develop a parallel common law regulatory regime that is ineffective and inefficient, and likely to be socially unjust.”
