The Government is amending the Climate Change Response Act, with Justice Minister Paul Goldsmith saying “the courts are not the right place to resolve claims of harm from climate change.”
On Tuesday, he said ongoing litigation in the High Court, where an applicant has brought civil claims against six businesses for their greenhouse gas emissions "is creating uncertainty in business confidence and investment that the Government must address."
Goldsmith said the Government was acting to give legal clarity and certainty, and to remove the possible development of a new regime contradicting the framework Parliament has enacted to respond to climate change.
"Therefore, the Government will amend the Climate Change Response Act 2002 to prevent findings of liability for tort for climate change damage or harm caused by greenhouse gas emissions in both current and future proceedings before the courts," Goldsmith said.
The Ministry of Justice’s website describes torts as common law actions where someone seeks compensation for harm caused by a wrongful act.
The Green Party has hit out at the move, saying the Government is "loosening the leash for corporate profits at the expense of our people and our planet".
'It seems really short-sighted'
The litigation that Goldsmith is referring to, involves iwi leader and activist Mike Smith, who in 2024, was granted permission by the Supreme Court to sue companies like Fonterra, over their greenhouse gas emissions.
Lawyers for Climate Action co-founder and president Jenny Cooper told interest.co.nz the Government's announcement was disappointing and a knee-jerk reaction for the Government to legislate over the top of a unanimous decision of the Supreme Court in Smith and Fonterra before the case has even gone to trial.
"It's also got much wider implications so I think it's really not well thought through. To completely cut out the possibility of any tort-related claims for climate-related harm before we have any kind of legislative framework to address that issue."
Cooper said it leaves the question of who is going to pay for the harms unanswered. "It seems really short-sighted to give this, essentially, immunity, under tort law to the people who are responsible [and] the companies are responsible for causing the harm when we haven't got any alternative in place".
Clarity and certainty
Goldsmith said the response to climate change is best managed by the Government at a national level, not through "piece-meal litigation in the courts."
“New Zealand already has a legal framework to manage greenhouse gas emissions set through Parliament through the Climate Change Response Act 2002 and the Emissions Trading Scheme.”
“It is essential to maintain the coherence of the regulatory system and to deliver consistent obligations for greenhouse gas emitters,” Goldsmith said.
“The courts are not the right place to resolve claims of harm from climate change, and tort law is not well-suited to respond to a problem like climate change which involves a range of complex environmental, economic and social factors.”
'Parliament is the place where we set our response to climate change'
Speaking to reporters following his announcement, Goldsmith said: “It’s about Parliament being clear that Parliament is the place where we set our response to climate change. We weigh up all the various factors. It’s a complicated area.”
“We have a regime in place and people can argue about whether that regime is good or not, and that’s a democratic process. But that is the accountability. To have a parallel, separate one, I think creates uncertainty.”
The law change would not change the Government’s responsibilities under the Climate Change Response Act and businesses that have obligations under the Emissions Trading Scheme will have to meet them.
Asked about this law amendment, Climate Change Minister Simon Watts told reporters he thought having clarity in regards to policy was helpful.
'Difficult to see how this benefits New Zealand'
Cooper said there were a few problems with removing the option of having tort-related claims for climate-related harm.
“First of all, as a basic principle, if people suffer harm and it’s someone else’s fault, then they should be able to seek a remedy," Cooper said.
"The second point is that the law should not be retrospective … if you have already suffered harm that you have a claim against somebody for, you should be able to pursue that and the law should not come in and take that away from you when you've already got that claims or suffered that harm.”
Cooper said the third point was that if someone has a case that’s already in front of the courts, Parliament should not come in and change the rules halfway through.
“That is a very important principle of the rule of law, which potentially, if it goes ahead, this legislative amendment infringes on.”
While Cooper agreed that certainty of law is important, “changing the law in this retrospective kneejerk way does not provide certainty to anybody, including businesses”.
Cooper said it was really difficult to see how this benefits New Zealand.
“We’re already seeing climate-related events costing the government, councils, property and business owners millions and millions of dollars. And that’s only going to get worse.”
Cooper said there are difficult questions such as how we’re going to pay for these impacts.
“It just doesn’t make sense to block the potential development of tort law, which has provided a really effective mechanism for these types of issues in the past, to block that from developing when we have nothing else to replace it.”
“There is no legislative scheme to deal with this issue,” Cooper said.
Cooper said internationally, this would be regarded as a serious backward step by New Zealand.
“I think it would put us out of step with other countries where these kinds of claims are going ahead such as the UK, the Netherlands, Germany and a number of other countries.
“This is still a very new and emerging area of the law but we will go from being at the forefront to being at the back.”
'A wrecking ball to climate laws'
The Green Party said this was yet another example of Prime Minister Christopher Luxon "loosening the leash for corporate profits at the expense of our people and our planet."
The party's co-leader and climate change spokesperson Chlöe Swarbrick said "Luxon’s Government has decided to prioritise protecting big polluters’ profits in the limited parliamentary time before the election."
“That tells us everything we need to know about who they work for. It’s the corporations ripping us off and destroying the ecosystems necessary for life as we know it," she said.
“They’ve spent two and a half years taking a wrecking ball to climate laws and, at the eleventh hour, they’re now ripping away New Zealanders’ and the courts’ ability to do what this government lacks the spine to do."
'Pretty big move'
Labour leader Chris Hipkins said generally speaking, governments had waited until the courts have actually made decisions.
“It’s not unprecedented for a government to disagree with a court decision and change the law."
"Generally doing that, intervening before you’ve reached a point where you know what the courts were going to decide is a pretty big move,” Hipkins said.
32 Comments
Crushing NZ's economy and taxation base over 0.080% of global emissions seems unbalanced. I'm sure Chlöe's passion for climate change is real, I think she could really help others in greater need. Lets sponsor her citizenship to Nauru so she relocate and make noise there against the largest polluters (China and the United States). Eliminating there emissions will actually have a chance of influencing climate outcome. Alternatively Iran or Russia are in the top six.
I'm sure they will take notice either way...
I believe that is called playing the man, not the ball.
A hypothetical: The road is in bad shape, but you are in a hurry. Sadly, you take the corner too fast and crash. Everyone says that the government should have fixed the road, that you were not to blame. What do you think? Do you have responsibility for your actions and the consequences?
if you have responsibility for your actions, do you also have responsibility for your pollution? Not the government. Not the Chinese or the yanks. You.
On a different note however in relation to your example, is it personal responsibility for recycling plastics to 'do good for the planet' given the overall production of plastic has never decreased, and is increasingly ubiquitous in our lives?
Is it the producers needing to take responsibility? The retail customers? The individual customers? It's an interesting concept.
So he didn't actually use any petrol when he tried to chainsaw that tree down on One Tree Hill?
Silly lawsuit in the first place to my mind - and it likely would have failed anyway. Surprising SC decision in that I'd have seen the action as a nuisance to the courts.
But suing an industrial user(s) for harm caused by water pollution/water depletion would have merit, I'd have thought.
So there's a difference between pollution air and polluting water?
Interesting.
You misinterpret.
I'm referring to point source vs non-point source pollution - the former being directly attributable to a single party.
It a legal point, not an environmental one.
I have no idea what level of GHGs Fonterra emits - but they/it (the dairy processing industry) is not one of those industries subsidized with 'free' (allocated) carbon credits by the government;
https://www.epa.govt.nz/industry-areas/emissions-trading-scheme/industr…
Another reason why I can't see the legal case succeeding.
Kate,
I didn't support the lawsuit, but I feel very strongly that the government should not have intervened at this stage. The court should have been allowed to pass its verdict which could well have gone against the submitters. What they have done is in my view yet another blow to our already shaky democracy. They have passed numerous bill under urgency simply to avoid proper scrutiny of them. When they moved against the equal pay cases, they even went as far as to backdate part of it.
The government has shown its increasingly open contempt of anything that might stand in the way of its legislative programme, aided and abetted by its coalition partners.
It has to (see my comment below).
The gap between what it has to promise and what it can deliver is widening exponentially.
Hence the commandeering of all things - from traffic safety to conservation land to social wellbeing - in a doomed attempt to re-boot said growth.
Luxon will go down with the ship, still bleating: Economic growth....
It is worrying that NZ’s judiciary are being asked to intervene in government legislation on two counts. Firstly some legislation is poorly drafted and purposed giving rise to ambiguity and contention. Secondly that the courts are being used, on technicalities and theories often subjective, to promote political agendas. Politics and judiciary can never be interposed. The USA is a stark illustration of the peril of that.
A fundamental problem is that the NZ Judiciary are willing participants in scope creep ignoring the will of Parliament
https://www.nzinitiative.org.nz/reports-and-media/opinion/how-to-rein-i…
I agree with you.
but we have mission failure by our legislators.
now we have double mission failure from legislators.
Am not sure betting the remaining $ on red or black is much of a winning strategy.
actually we have across the world examples of how to determine a winning strategy. It’s called citizens assembly. The only political party plugging this is Oppotunity. Another good reason to vote for them this year. Them blues, pinks, reds, blacks and greens are not looking for long term solutions.
Don't judges appointed by elected representatives mean that the judiciary is far more answerable to the people: that their determinations are based on public consent?
Our law is created by parliament, Acts etc, that judges must decide outcomes on with reference to any existing precedents. Quite obviously some of our parliamentarian law makers wouldn’t have much capacity to fulfil the duty and there are as well plenty of old laws that are redundant or irrelevant now, still existing . If the judiciary consider legislation to be overly ambiguous or confusing etc then the remedy is to make a submission to parliament accordingly. In practice it is not as simple as that but the salient point is that the judiciary should not get involved in actual law making although there is ability for the government, the Attorney General to consult with the Law Commission over the drafting etc but that doesn’t include challenging the intention.
'... the salient point is that the judiciary should not get involved in actual law making...'
But what happens when they do start to make law by extending interpretations, and it pushes back against the elected representatives and the public's will?
That said, we do have some poor drafting of laws that gives all that wriggle room.
Totally agree with you linklater01.
We really need these guys gone - they are like a wrecking ball of a coalition government.
No intellect, no ideas - combined with pushing policy through without proper consideration of facts and alternate options/views (witness forced amalgamation in local government) is such a dangerous combination.
They need a divorce from one another. Any one of them on their own would make for better coherency (at least).
Three comments so far - can we raise the level folks?
At a small level, our grandchildren need representation - which in effect the cases were/would be - and are being denied this.
Big picture, it was inevitable that the sub-par ideologues currently in power, did this. Along with quashing MfE; trying to make Conservation a money-spinner - all these initiatives come under one banner: Trying to maintain GROWTH.
But growth is exponential, and both the planet, and NZ, are finite. So pick your doubling-time (3%=24 years) and reckon we're essentially half-way through the resource-stocks. So the imperative at the back of ALL these moves, is logically flawed. Doomed from the get-go.
I have been telling the Green echelon, for some time, that they need not protest - that the system is falling over even now. They, like the brigade hereabouts who only want to hear what they want to hear, haven't listened; it's still 'climate this' and 'climate that'. We agree that we're scr--ing out grandchildren's chances - but we have a different appraisal as to the available options.
That said, the Green echelon are streets ahead of the neanderthals - the Luxon types. They aren't just about yesterday - they're trying to bring back yesteryear. And it can't happen. Time we had real leadership addressing the forthcoming human predicament - and from his comments, that won't include Hipkins.
This looks emblematic of a struggle going on between the legal-administrative-bureaucratic class and elected government.
Is the purpose of the technocracy to execute the will of the people as expressed through elected representatives, or is it to run things as mandarins who interpret the laws to their own we-know-better ends, answerable to no-one but their peer in-groups?
If it's the latter, what value does representative democracy then have, where poor decisions are answerable to the citizens?
Wrong question.
try. For whose benefit is the country run? Presently it seems the 1% of the 1%.
Allowing an activist and activist lawyers to use the current law and court system looks like a stunt that would if successful shut down farming in NZ.
Legislation change is necessary.
Farming would continue, but would look very different as farmers would then have greater incentive to consider the effects of their actions on-farm.
Shutdown is a fear, not a fact.
Please explain then how farms would stop emissions ?
The Carbon Farming Solution by Eric Toensmeier
Drawdown Explorer™ | Project Drawdown®
TL:DR - increase the carbon storage vs emissions ratio, and the longevity of the carbon stored to maximise farm resilience over the long term.
Fundamentally, the amount of carbon drawn down from the atmosphere has to exceed the amount of carbon emitted to atmosphere over the medium to long term if we'd like a relatively stable climate.
In the right forms, carbon has a handy benefit of making soils more fertile and helping manage water supply too.
Without a stable climate, storm intensity goes up by a third (that shifts a 1 in 100 year flood to 1 in <10 years), and losses mount as people, animals and crops struggle with heat stress. Ask hydrologist, meteorologist or older farmer how rainfall intensity has been trending across decades.
There's also other emissions like methane and F gases which have been considered and debated on this site which have significant warming effects.
You miss the point
farms can reduce emissions marginally, but they cannot eliminate emissions.
Farms can both reduce emissions and store carbon. If emissions > storage, problem. If emissions < storage, helpful.
Great question. Farms don't stop emissions, that's impossible as every animal, plant and microbe naturally respires some CO2.
Instead they change the balance of sequestration (conversion of atmospheric carbon into living matter and soil carbon) vs emissions (respiration and burning stuff)
The activists were wanting the courts to stop emission, hence the need for legislative changes
The case alleges public nuisance and negligence arising from the respondents' actions, and proposes the defendants owe a duty to cease materially contributing to damage to the climate system.
I would consider the emissions to be best considered on a net basis i.e. emissions less storage. Meaning that emissions are fine, so long as they're balanced by long term carbon storage
The judgement below
[71] The third cause of action advances the novel, proposed climate system damage tort. We set the draft amended pleading out in full: The defendants owe a duty, cognisable at law, to cease materially contributing to damage to the climate system, dangerous anthropogenic interference with the climate system, and the [a]dverse [e]ffects of climate change through their emission of [GHGs] into the atmosphere (or their production or exportation of coal in the case of BT Mining; and their production and supply of [f]uel [p]roducts in the case of Channel and Z Energy). The defendants have breached, and will continue to breach, the duty by [emitting GHGs] into the atmosphere (or [causing] the emission of [GHGs] through the sale of fossil fuel products) for their own profit and knowing that those emissions will contribute to damage to the climate system, dangerous anthropogenic interference with the climate system, the [a]dverse [e]ffects of climate change, and injury to the plaintiff and people like him.
[72] The relief sought is cast in similar terms to that sought for the first cause of action.
If Smith had sought to stop emissions entirely the case would have been thrown out. That is not what is happening.
Whitney, your argument is illogical, because it begins with a skew.
On behalf of my grandchildren, and the world they will inherit - I say: Sod you.
More practically, we need to wean ourselves of current-format agriculture anyway. For all the hype, NZ does not 'feed 40 million people' - it takes many calories of fossil energy - oil, coal and gas, from finite stocks - which it turns into very few food calories. That is temporary, thanks to the word 'finite'. You argument is about feeding B Deck on the Titanic - totally out of context.
But according to Upton Sinclair, you will choose not to see that. I wonder what your grandchildren will say...
what else would one do when the central government doesn't address these kinds of issues which have national implications, and proposes to shut down debate and court rulings?
Where does one seek justice then?
At its best, a policing and justice system helps deter harm and escalating acts of vengeance - safer communities together and whatnot.
Have these politicians considered what it would mean for them if by their actions, entire generations of people were prevented access to justice in this area?
You have to make change through the ballot box, which means convincing enough people of the rightness of your cause.
There are other little matters - rights and justice.
Which somewhat override, I'd have thought.
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