BY RACHEL BUCKMAN

In 2014, the Ministry of Foreign Affairs and Trade called climate change “the most urgent and far-reaching threat we face.”[1] A year later, the highly praised Paris Agreement was passed, committing the international community to the fight against global warming.[2] While symbolically powerful, the nature of its drafting has left the Paris Agreement’s ambitions far from certain.[3] Reinforcing this state of uncertainty, regular media reports describe how current actions to reduce emissions are simply not doing enough to combat the danger we face.[4]

The goal of the Paris Agreement is to hold warming well below 2 degrees Celsius above pre-industrial level and pursue efforts to limit warming to 1.5 degrees.[5] The framework it has created to achieve this is to allow strategies to be domestically decided – codified as Nationally Determined Contributions (NDCs).[6] Its effectiveness, therefore, turns on the decisions of individual states. New Zealand’s set its NDC in 2016: to reduce greenhouse gas emissions by 30 per cent below 2005 levels by 2030.[7] This would take a drastic turn if the recently announced Zero Carbon bill passes into law.[8]

Described as a plan for the next thirty years to “safeguard” the future of young people, Prime Minister Jacinda Ardern has called that “landmark action.”[9] The bill sets ambitious targets for 2050 based on the “two baskets” approach, which differentiates based on the type of emission.[10] The target is for emissions of long-lived greenhouse gases to reach net zero by 2050, whereas the short-lived gas methane, most notably produced by farming, are only required to be substantially reduced.[11] Mirroring the United Kingdom legislation, the Zero Carbon bill would also establish an independent Climate Commission to help hold the government to account.

Having passed its first reading and gone to the select committee, the bill has already received its fair share of criticism. Particular concern has come from the agricultural community who are unsure about the viability of what this legislation would ask of them given the amount of methane gas it produces. Andrew Hoggard, spokesperson for Federated Farmers, called it “frustratingly cruel.”[12] The 2019 budget committed to investing in aiding the agriculture sector in transferring its land and practices in ways that reduced its environmental impacts.[13] It is not just the money that farmers are concerned about though, but rather the necessity of the bill. Federated Farmers policy advisor emphasised that because methane is only short-lived, emissions only need to be slightly reduced to ensure no additional warming.[14]

However, even if we accept the goals of this legislation as a valid endeavour, the question remains whether this law would be enough to ensure success. Does it have the ability to ensure New Zealand is on route to the 2050 targets? Greenpeace Executive Director, Dr Russel Norman, expressed deep scepticism. He called it “a reasonably ambitious piece of legislation that’s then had the teeth ripped out of it.”[15] What he highlights is how putting a goal into law may, on the surface, appear impressive. Yet this is not a guarantee of anything. If we fail to reach our 2050 goals, or in the short-term fail to meet the “emissions budgets” intended as interim stepping stones, the legislation expressly states  “no remedy or relief is available.”[16]

Does putting our climate change policy into legislation create any legal consequences or accountability? Generation Zero, an organisation driving the creation of this legislation, saw the Court as having an important role.[17] They describe the courts as “the final actor in the ecosystem of accountability” that the public can turn to if “something has gone seriously wrong.”[18]

Courts taking up such a role is not unprecedented. In 2015, a court in the Netherlands ordered the Dutch government to increase its emissions reduction target from 17% to 25% by 2020.[19] Comparatively, New Zealand’s judiciary has not taken such drastic steps. On the contrary, the Court of Appeal expressed a relatively conservative opinion in 2013. It held the words “actual and potential effects on the environment” in the Resource Management Act 1991 did not include the impact on climate change of indirect greenhouse gas discharge.[20] Although this was prior to the Paris Agreement and its accompanying obligations, it shows that our court system has not proven it can protect progressive climate change aspirations in the way some may desire it to.

The specific way that Generation Zero see the Court’s role working is via judicial review of discretionary decisions made under the act – specifically whether policies and emissions budgets are keeping us on track for the 2050 target.[21] Again, New Zealand would not be the first country to do this. Globally, various domestic courts have held there is a judicial role to play in governments’ climate change decision making.[22] It would also not the be the first time attempt at utilising judicial review in regards to climate change policies, with Waikato law student Sarah Thomson attempting just that in 2017.[23] 

While this case raised high hopes, its ultimate decisions failed to make any breakthrough in the law of judicial reviewing. The first cause of action was in regards to the government’s decisions under the current climate change legislation, the law the Zero Carbon bill would significantly amend.[24] The argument was that the Minister had erred in failing to adjust New Zealand’s policy and targets in light of new information from the Intergovernmental Panel on Climate Change (IPCC).[25] Ultimately, the judge did not decide the matter due to the new Government’s announcement to change their target.[26] The case also addressed the New Zealand government’s decision as to our NDC under the Paris Convention. While accepting the discretion to determine our NDC could be judicable, the court would not undermine the decision simply because a different government may have made a different decision.[27]

Geoffrey Palmer argues that this case illustrates that “too much cannot be expected from judicial review in an area like climate change that exhibits a difficult mix of national and international obligation, hard science, high politics and many uncertainties.”[28] When discretion has been given to decide climate change policy, judges are going to be reluctant to intervene and substitute their own opinion.[29] This is far from unusual. High thresholds have to maintained in the field of judicial review to ensure the separation of powers between the judiciary and the executive are not undermined. Therefore, while technically judicial review would be available for the Zero Carbon bill, it should not be considered a perfect solution. While in theory judges have a range of powers to intervene in government decision-making, it is “not so much in practice.”[30] The likelihood is that judicial review will only be successful in extreme, and rare, cases.

Generation Zero suggested the bill should send a clear single as to “how intense judicial review should be in respect of decisions made under [the Act].”[31] The legislation does highlight mandatory considerations the Minister must take into account in establishing emissions budgets, for example the impact of any action on the 2050 target. Furthermore, when considering whether to revise a budget, the Minister must take into account any advice given by the Climate Change Commission.[32] However, once consideration occurs, the Minister still has discretion in deciding how to act. Moreover, no other public actor must take into account the emissions budgets when making decisions under their own discretionary powers, meaning the effect of this legislation could be in a relatively narrow domain.[33]

Judicial review may be a difficult path. However, it is not the ultimate determinate to the success of this bill. Legislating New Zealand’s climate change policy may have other political and social impacts.

Legislation can also be a significant driving force in normative change, providing a powerful signal for all New Zealanders.[34] It can also have genuine practical impacts. In 1990, the Government of the day adopted a strategy to reduce the emission of greenhouse gases by 20 percent before 2004 – a strategy that was ultimately abandoned after the election that followed.[35] Cementing climate change action into legislation makes it concrete and difficult for future governments to change without full justification and public support. If we want to deal with climate change, it cannot be treated as a discrete policy issue for the government of the day. Rather climate change needs to be treated as “a responsibility that stretches across many governments into the future.”[36]

A Zero Carbon act can be a useful tool, and it could spark a significant change in the way New Zealanders deal with climate change. It is important to consider why we think this though, and what we expect from such legislation. Thinking one law will fix everything is misguided, but that does not mean it does not have significance in its own right.

 

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Featured image source: pexels.com

[1] Ministry of Foreign Affairs and Trade Briefing to the Incoming Minister (6 October 2014) at 7.

[2] Paris Agreement (opened for signature 22 April 2016, entered into force 4 November 2016).

[3] Matthew CM Hill “Keeping Commitments: Examining the New Principles in the Paris Agreement” (2017) 21 N.Z. J. Envtl. L. 53 at 87.

[4] Fiona Harvey “Analysis warns of lack of progress on 2020 global emissions target” The Guardian (online ed, United Kingdom, 22 January 2019).

[5] Article (2)(1)(a).

[6] Article 4(2).

[7] “New Zealand’s Nationally Determined Contribution” (6 June 2018) Ministry for the Environment <www.mfe.govt.nz>.

[8] Climate Change Response (Zero Carbon) Amendment Bill 2019 (136–1).

[9] James Shaw, Minister for Climate Change “Landmark climate change bill goes to Parliament” (8 May 2019) and Jason Walls “Climate change plan: Government unveils details of ambitious Zero Carbon Act” The New Zealand Herald (online ed, Auckland, 8 May 2019).

[10] See Generation Zero “Zero Carbon Bill Consultation Submission” (July 2018) at 7.

[11] Clause 8.

[12] Jason Walls “From Federated farmers to Greenpeace, the zero carbon bill has been slammed by its critics” The New Zealand Herald (online ed, Auckland, 8 May 2019).

[13] Grand Robertson, Minister of Finance “Summary of Initiatives in Budget 2019” (30 May 2019) at 66.

[14] Macaulay Jones “Comment: Making sense of the Zero Carbon Bill” The New Zealand Herald (online ed, Auckland, 21 May 2019).

[15] Russel Norman “Russel Norman: Toothless Zero Carbon Bill has bark but no bite” (8 May 2019) Greenpeace <www.greenpeace.org/new-zealand>.

[16] Clause 8.

[17] Generation Zero “Making the Zero Carbon Act work: the Climate Commission and the Courts” (November 2017).

[18] At 6.

[19] Urgenda Foundation v The State of the Netherlands [2015] HAZA C/09/00456689 (24 June 2015) District Court of the Hague.

[20] West Coast Ent Inc v Buller Coal Ltd [2013] NZSC 87; [2014] 1 NZLR 32 at [172].

[21] At 12.

[22] Thomson v Minister for Climate Change Issues [2017] NZHC 733 at [133].

[23] Thomson, above n 23.

[24] Climate Change Response Act 2002.

[25] At [73].

[26] At [98].

[27] At [60].

[28] Geoffrey Palmer “Can Judges Make a Difference: The Scope for Judicial Decisions on Climate Change in New Zealand Domestic Law” (2018) 49 Victoria U. Wellington L. Rev. 191 at 200.

[29] At 200.

[30] At 203.

[31] Generation Zero “Making the Zero Carbon Act work”, above n 18, at 18.

[32] Clause 8.

[33] Clause 8.

[34] Duncan Ballinger “Why set greenhouse gas reduction targets in legislation?” (2018) 4 NZLJ 78 at 80.

[35] Geoffrey Palmer “New Zealand’s Defective Law on Climate Change” (2015) 13 NZJPIL 115 at 116-117.

[36] “Stepping stones to Paris and beyond: Climate change, progress, and predictability” (Parliamentary Commissioner for the Environment, July 2017) at [6].