Climate Minister responds as activist lawyers seek judicial review over ETS settings

Public Policy / news

James Shaw says he supports the right of citizens to challenge government decisions after being named in legal action

10th May 23, 3:38pm by Dan Brunskill

The Minister for Climate Change James Shaw with reporters in Parliament

The Minister for Climate Change says he is not worried about being taken to court over a Cabinet decision which activist lawyers claim breached the Climate Change Response Act.

Lawyers for Climate Action NZ (LCANZI) are seeking a judicial review of the Government’s emissions trading scheme settings, arguing the decision was not made in the way required by law.

In a statement, the society of 300 lawyers said the loose settings were motivated by concerns about how higher unit prices would flow through to households and did not align with emissions budgets.

The legal action asks the High Court to declare the regulations are inconsistent with the Climate Change Response Act, and an order that the regulations be remade.

It cited the Minister of Climate Change as the respondent, as the government minister responsible for administering the act and carrying out Cabinet’s decision.

James Shaw holds the climate portfolio but is not a member of cabinet and recommended the government impose tighter ETS settings in line with Climate Change Commission’s advice.

On Wednesday, he told reporters that he couldn’t comment on the specific case while it was before the court.

“But, I’ve always said that citizens should have the right to challenge Government decisions in court and we fought quite hard to ensure there were provisions in the Zero Carbon Act that enabled people to do that.”

“We’ll just have to see how it plays out,” he said.

While Shaw is not a Cabinet Minister, he does attend meetings when climate decisions are being made and is bound by the collective responsibility rule.

Carbon chaos

The emissions trading scheme has been clouded with uncertainty ever since the December decision to ignore the Climate Change Commission and keep unit prices low.

Confidence in the scheme has been shaken and unit prices have fallen much lower than anticipated as investors question the Government’s commitment to the scheme.

Additionally, a review into the role of forestry and gross emission reductions has thrown more uncertainty into the mix.

The chaos has left a $800 million shortfall in Government revenue relative to forecasts, with units priced at $54.50 instead of $85, which means less money is available to pay for climate initiatives.

Bronwyn Carruthers, president of LCANZI, said the ETS was supposed to act like a tether on emissions by making it costly to burn too much carbon.

“But, Cabinet signalled that whenever tension starts to go on it will throw out more rope. Unsurprisingly, the price of ETS units has collapsed following the December decision”.

The society of lawyers has argued the Cabinet decision went beyond the powers given to them in the Climate Change Response Act by weighing up cost-of-living over emissions budgets.

In the court filing, they claimed the government lacked the legal ability to base its decisions on considerations not included in the Act, at the expense of its relevant purpose which was meeting emissions budgets.

LCANZI has asked the High Court to declare the regulations were made without legal authority and were inconsistent with the Climate Change Response Act.

It then asks for a court order which would require Cabinet to remake its decision in accordance with the law.

Cabinet needs to make a final decision on the ETS settings for 2024 in time for the regulations to be updated by the end of September.

The Climate Change Commission has recommended even tighter volume and price settings than last time, but Government ministers have declined to say if they will accept the advice.

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26 Comments

by chebbo | 10th May 23, 3:53pm 1683690805

Great to see this team of 300 lawyers, and their registered charity LCANZI, selflessly leaving greed and profit to one side for the sake of the environment.

lol.

by powerdownkiwi | 10th May 23, 4:33pm 1683693216

They genuinely are, but they miss the point. By the time we take carbon energy out of society, we have so little surplus energy that paying for lawyers - and perhaps running a judicial system at all - is unlikely. So their name is somewhat oxymoronic; by the time they've succeeded, they're out of a job.

But from out grandchildren's perspective, a much needed move in that it might start the energy discussion. The best textbook of all time, is this:

https://open.umn.edu/opentextbooks/textbooks/980

It's free. By the time you have traversed it, there won't be much left not understood.

by Rob Reid | 10th May 23, 7:22pm 1683703326

OK thanks, have downloaded. But I don't want to read it because I suspect it will put me off Elon Musk, and his dreams are about all that is keeping me alive.

by rastus1 | 10th May 23, 3:58pm 1683691126

Good luck to these lawyers. Irrespective of how you feel about the scheme, this Govt needs calling into account for the way in which it believes it can trample over Legislation to suit their political agenda.

A win would be great for democracy.

by Shaft | 10th May 23, 5:34pm 1683696890

Here here!

by sit23 | 10th May 23, 4:06pm 1683691607

Maybe just one person could check what the voters want. We all know that 18% of Germans voted for the socalled Green policies. 82% couldn't be bothered with them. The same would be true of our voters. The govrnment needs to change the laws to suit what the electorate says they should do, not what loud minorities want.

by powerdownkiwi | 10th May 23, 4:28pm 1683692927

That approach requires the voters to be informed about energy, and the Limits to Growth.

By default, your comment suggests this is not the case.

by buyandhodl | 10th May 23, 4:35pm 1683693309

The irony of course being that you are also misinformed about the limits to growth.

by powerdownkiwi | 10th May 23, 4:43pm 1683693812

You mean there aren't any?

How do you get through a doorway, at that height?

by fat pat | 10th May 23, 6:37pm 1683700672

So the hysterical pre-teen gluing themselves to the road is "informed" but the middle aged scientist, dentist, or engineer etc. whose read quite a bit about it and is consequently skeptical of manmade global warming is what? ..."uninformed"

by makechange | 10th May 23, 8:46pm 1683708399

If there are middle aged scientists or engineers that have read a lot and are still skeptical, they are definitely in the minority. I know lots, and don't know any who are doubting the science that IPCC refers to

by Palmtree08 | 10th May 23, 8:50pm 1683708633

I guess if those middle age "professionals" refuse to acknowledge physics, they probably can't be accused of hysteria, more like greed motivated insanity.

by Shaft | 10th May 23, 5:35pm 1683696942

👏👏👏👏

by Belle | 10th May 23, 4:29pm 1683692967

Does this mean that currently all the dudes that planted trees expecting a windfall (ahem) have seen their return drop from mid $80s last year to mid $50s now? Also with the hope that it would go into the $100s...going forward?

And I thought returns on beef and lamb were shonky at times.

But now the pollies have wilted at the first hurdle. Again. (Didnt they crash in europe to $3 back in 08) Well its a bit disconcerting to those of us watching the countryside turn to pine forest. Which has blown in half, blown over and washed out land bridges crops and housing. And burnt, in the space of a couple of years. All for what? You might just think the carbon credit plan is not working.

by solardb | 10th May 23, 4:35pm 1683693319

I would think the lawyers are angling for a carbon price that would encourage a reduction in carbon emissions , rather than an increase in carbon planting .

The returns from carbon forestry vs hill country farming are so big , a temp reduction in carbon price is not going to stop planting.

by Belle | 10th May 23, 5:41pm 1683697307

As with a lot of things farming it works if you have lots and lots of acres. If you dont it doesnt. Then there is the liability your acquire by taking the credit. Plus the loss of your property rights.

As we run low on our natural resources, the population will revolt at paying for this nonsense. As it is now.

by sheepdog | 10th May 23, 6:13pm 1683699219

Not to mention alot of farming business have a multi generational outlook, which is definitely not the case with a carbon business.

by makechange | 10th May 23, 8:50pm 1683708634

Did you mean "carbon farming using monocrop pine"?

The business of locking up atmospheric carbon in soil, biomass and deep seas are what will slow and reverse much of the effects of humans on the climate

by Te Kooti | 11th May 23, 12:22am 1683721378

Then why are the moaning about the carbon price?

by powerdownkiwi | 10th May 23, 4:42pm 1683693732

Belle - try reading that textbook I linked.

Then tell me what your 'return' means?

Assumptions are funny things.

Physics is irrespective of money, profit, loss, debt, bets. Physics is, and physics overrides. What we've done, is evolve for all our history, in a world with X carbon above-ground (in our habitat). As have all other species presently present. We are digging historically-buried, sunlight-originated carbon, burning it for the energy, and releasing it into? Our habitat. 100,000,000 barrels a day, I kid you not - it's planet-forcing.

The polycrisis - it's not just CC - tells us Growth is probably a thing of the past, particularly if we're counting in entropy (the energy needed to parry decay). Perhaps better to question what food-production (it's just a form of energy) looks like without fossil energy? And how to husband soil-quality in the post-FF era. Which is nearly upon us, regardless of whether we address CO2.

by Belle | 10th May 23, 4:49pm 1683694168

I usually agree with most of what you say PDK. I have generally tried to live my life a little easier on the environment than many in doing what I do (farming) This business of planting pines to enable others to carry on polluting just gets my goat. I just dont believe pine is the answer. And it seems neither does our government.

by powerdownkiwi | 10th May 23, 5:09pm 1683695393

The surface acres just aren't there to sequester - Rod Carr really needs to be brave and tel it like it is. I planted a mostly-exotic (macro, eucs, natives, no pines) back in '94. Purposely kept out of the ETS. Did it for the planet, and as my legacy to my kids (2 then) and grandkids (3 now). But pine is a disaster; wildling for a start, crap timber for a second, disease-ready (zero diversity) for a third. And 3 rotations just about stuffs the soil, but the economics are they'll never put anything back in.

The aim, as you nicely put it, is living a little easier on the environment.

Go well

by Osty123 | 10th May 23, 8:41pm 1683708096

I'm laughing my ass off at the forestry consultant that I invited to speak to our farm discusion group last year. His statement that there was "zero risk in planting trees" will remain with me for life. Not one person at the meeting are planting any trees that I am aware off. SCAM OF THE CENTURY. He said it would likely per $160 ton FCOL

by powerdownkiwi | 11th May 23, 6:37am 1683743872

No - the scam of the century was or generation raping the planet - a one-off event.

Every future generation - I REPEAT, EVERY FUTURE GENERATION - will be grumpy with us.

If there are any...

by makechange | 10th May 23, 9:07pm 1683709657

Carbon credits could be good, but the ETS is more holey than Swiss cheese.

It only recognises 1 of the 7 possible negative emissions technologies, being forestry
the public subsidise carbon intensive industries through free allocations from govt instead of letting the market signal which industries are sunset ones
Only a portion of all human induced emissions in NZ are actually counted
Much of the possible emissions as well as the mitigations have a wide band of uncertainty, so we don't include them yet

MFE commissioned a study on what the price of carbon equivalent should be for net zero. It was $272/tonne CO2(eq) in 2019$

Can someone please tell me how we're to have a functional, market driven scheme with those kinds of settings?

Regardless, we're improving on this. My pick is that if businesses can't operate at that emissions price, they'll be sunset industries within a decade.

by powerdownkiwi | 11th May 23, 6:41am 1683744086

Do any of your other 6 stack up in EROEI terms?

CCS doesn't, for instance.

It's energy we get from the burning, and it's energy we choose not to expend sequestering. Can you point out how we can both have the energy and do the sequestering?