The challenge to the Climate Change Commission may have legs

Rural News

Guy Trafford reads the LCANZI legal challenge to the Climate Change Commission decisions (so you don't have to) and finds they may have an arguable case

6th Jul 21, 1:33pm by Guy Trafford

Having read the Lawyers for Climate Action NZ Inc submission, and tried to gain the gist of their complaint seeking judicial review of the Climate Change Commission’s advice to Minister for Climate Change James Shaw, I suspect this case may gain considerable more ‘airtime’ before it's over.

I should say that given some of the complexities of the submission readers need to provide me some latitude in my interpretations, and I advise them to also go into some of the links when seeking further elucidation, as it does get complex.

The ‘group’ of lawyers are a well organised collection of lawyers (300 has been mentioned) who operate under the name of “Lawyers for Climate Action New Zealand Inc” (LCANZI). The group has been in operation for at least 2 years (first AGM June 2019). They appear to be a ‘concerned’ group who are operating as watchdogs on the Government’s actions in regards to meeting New Zealand’s Paris Climate Change Agreements, among other issues.

They have put forward a number of submissions to both the Government and the Climate Change Commission, on issues like support for the clauses 22 and 23 of the Dairy Industry Restructuring Amendment Bill. These give Fonterra more ability to not pick up milk from new or expanding dairy farms and also farms that are not meeting their terms of supply, in particular around environmental issues (October 2019).

They have also thrown their support behind the Government’s moves to introduce new regulations to improve the nations freshwater quality.

However, as with the latest submission, they also take both national and local bodies to task. Auckland Transport copped their ire with their plans to further invest in infrastructure which would add to the cities GHG emissions, and targeted the Government with their policy to invest in “shovel ready” projects which largely involved spending on transport which again did little to steer the country down an energy lowering future.

The latest submission, which has turned into a decision to sue the Climate Change Commission, is quite a step further than LCANZI has gone in the past. It stems from the fact that they put a submission forward to the Climate Change Commission back in April pointing out (and with numbers to back their view) that what the Commission was proposing (and eventually put forward to Government in June), was not going to put New Zealand in a position to meet its Paris Agreement reductions, and was based upon flawed reasoning.

The figures for New Zealand to base its future reductions in CO₂e are below. The accepted historic figures for are in bold and underlined and on the right (Clauses taken from the LCANZI submission) and progressively increase each year. While the CCC modified approach are on the left and show a reducing trend.

69. While the actual level of historic net emissions has not changed, the figures calculated by the Commission for each of the three previous decades using the modified activity-based approach are significantly higher than the actual level of net emissions as reported in the GHGI:

a. 682 Mt CO2-e for 1991-2000 (cf 448 Mt CO2-e);
b. 701 Mt CO2-e for 2001-2010 (cf 537 Mt CO2-e); and
c. 652 Mt CO2-e for 2011-2020 (cf 543 Mt CO2-e).

The new modified numbers would mean that New Zealand would have a far easier task in meeting the reduction numbers but if these numbers were accepted by the government, it would be unlawful in the eyes of LCANZI. In summary taken from the LCANZI submission.

101. The Act mandates use of the GHGI net emissions accounting approach for setting emissions budgets and measuring performance under s 5Q(1)(a) and s 5X(4).

102. The Commission has erred in law by adopting the modified activity-based approach rather than the mandated GHGI approach.

103. The two measures are materially different for the reasons pleaded at paragraphs 66 to 71 above.

110. The Commission erred in law in:

a. failing to recommend emissions budgets that included projected offshore mitigation that formed part of its NDC analysis; and
b. failing to apply the Act’s restrictions on the use of offshore mitigation.

111. As a result of the error the Commission:

a. proposed emissions budgets which did not match its advice on the NDC;

5. On that approach, the figure for Aotearoa New Zealand for the period 2021-30 should be less than:
a. 568 Mt CO2-e (based on the Commission’s calculation); or
b. 484 Mt CO2-e (based on the corrected calculation pleaded in paragraphs 81-89 above).

116. In addition, Aotearoa New Zealand’s ‘fair share’ of the global carbon budget, as a substantial past emitter and as a developed country, requires a more ambitious target than 568 / 484 Mt CO2-e.

117. The Commission correctly concluded that an NDC which allowed emissions of 596 Mt CO2-e between 2021 and 2030 was not compatible with contributing to global efforts to limit warming to 1.5°C.

118. Setting emissions budgets that would allow 648 Mt CO2-e of net emissions over this period is inconsistent with the Commission’s analysis of the NDC and inconsistent with the purpose of the Act.

119. A reasonable decision-maker would have recommended 2021-2030 emissions budgets and a 2030 NDC allowing net emissions of no more than 400 Mt CO2-e.

120. In recommending emissions budgets that are inconsistent with the purpose of the Act and with subpart 3 of Part 1B of the Act the Commission has acted outside its legal powers.

LCANZI expect to be in court before the end of the year. Unfortunately there are no winners in this case (not even the lawyers this time unless they choose to pay themselves) as if LCANZI prove their case then New Zealand is on a more difficult and presumably expensive pathway to achieving its Paris Agreement targets. Agriculture may well come back into the ‘firing zone’ if this is the case. If the Commission and or government ‘wins’ then it probably means reductions are open to ‘interpretation’ and therefore may be highly variable between countries responses, which may mean the globe exceeding the 1.5^oC increase in global temperatures.

Neither option looks great. We can only hope that the correct decision is made (whatever that is) and maybe enjoy the sideshow in the meantime.

No chart with that title exists.

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31 Comments

by Foxglove. | 6th Jul 21, 1:44pm 1625535855

Appreciate this body of lawyers are qualified and learned but what mandate exactly has been given to them by the majority of New Zealanders, that they should act on their behalf? Or, more basically, why should they have more clout than 300 say plumbers or shearers?

by rastus1 | 6th Jul 21, 1:43pm 1625535809

More of a mandate than J Key, the Nats and now Jacinta had to sell off NZ to the world, massive immigration and the pollution of our lakes and rivers for corporate farming.

by GV 27 | 6th Jul 21, 1:49pm 1625536189

That isn't the question - and I think you'll find in a democracy, the powers of the sitting PM are endowed through the act of getting elected. That's about as much of a mandate as you'll get - unless this is one of those "it's only valid when people do things I like" deals.

by Foxglove. | 6th Jul 21, 2:05pm 1625537148

Aye but for better or for worse, take your pick, they were and are legally representative of the electorate. This lot of lawyers have elected themselves. Not actually having a go about the thrust of the cause itself, but it is of concern I suggest that professionals by dint of certain expertise and qualifications think to have leverage over the system, in a fashion distinctly different and an avenue hardly available to that of the majority of ordinary New Zealanders. It smacks of elitism.

by brisket | 6th Jul 21, 4:35pm 1625546155

They're not claiming to represent anyone, but they have the legal skills to mount this kind of challenge. Fair enough.
If there were lawyers around who were motivated to attack the Commission from the other end, I'm sure they could find some contestable assumptions in there if they looked.

by Foxglove. | 6th Jul 21, 5:53pm 1625550834

Sure, the subject could be lobbied from either side of the argument. That is not the concern though, far from it. Think about the actual process that is being enlisted here. The last thing the justice system, the courts, in New Zealand needs is various groups of lawyers using them to promote and pursue their own personal views on governmental matters. That makes for an elite faction as such identities are equipped with qualifications and capacity to facilitate such missions virtually exclusively, in comparison to other New Zealanders and potentially at their expense. Have no problem with the judiciary intervening, as the Chief Justice has done recently, in the legalities of government proposals because they are appointed by the government for precisely that reason amongst other duties. But a bunch of freewheeling vigilante lawyers is something else again.

by youngdumbandbroke | 6th Jul 21, 1:47pm 1625536023

They don't need one at present. I suspect that can read the room much better than the bureaucrats in Wellington, knowing that local and regional councils aren't being held to the same standard as the private sector.

by AndrewRiddell5886 | 7th Jul 21, 7:10am 1625598646

The mandate that arises from all (most) of us wanting people to act within the law.

by rastus1 | 6th Jul 21, 1:41pm 1625535672

Good luck to them. The old school running govt and council have made a massive balls-up in most areas of NZ life - environment and housing the two great stand-outs. Time they were brought screaming and yelling into the new reality.

by redcows1 | 6th Jul 21, 2:12pm 1625537555

@foxglove
Not sure why you think they need a mandate from the majority? They simply represent LCANZI.

by Foxglove. | 6th Jul 21, 2:21pm 1625538083

“If LCAINZ prove their case then NZ is on a more difficult……” My interpretation of that caption is that these 300 or so lawyers have not only opportunity but also capacity and capability to change the direction and/or ramifications of government policy that will impact on all New Zealanders. So how exactly has a majority of New Zealanders given them a mandate to do so.

by positivelywallstreet | 6th Jul 21, 3:13pm 1625541197

The lobby group are claiming the Commission is not carrying out the will of Parliament as stated in the act.
Sounds like an illegal action to me..
The Government can ignore the Commission of course..

by Kate | 6th Jul 21, 9:28pm 1625563722

The law is their mandate - if the CCC has acted outside the law and in contravention to their authority - thank goodness we have a legal entity calling them out.

by Burni | 6th Jul 21, 5:04pm 1625547852

Aotearoa New Zealand? Maybe Aotearoa can pay half the IPCC levies.

by maaltd | 6th Jul 21, 7:51pm 1625557896

I am but a humble engineer working in the horticultural industry, where even after producing my product and sending it to the other side of the world - I do it with generally less carbon cost than they can supply their own markets at the same time with over there, but we get local zealots telling us not to produce as we cost carbon.
I just used to think that I was providing nice employment and satisfied, happy customers.

I see other New Zealand people in Primary industry providing food for 9 to 10 times our population at the least carbon cost, they are being told not to do it as it makes NZ's total carbon amount bad. Where is the leadership or brains?
My problem with all the uneducated comments, including some main stream media untruths is that if carbon is a global problem treat it as that and reward low carbon worldwide producers.

This will not happen as all the climate accords were about political compromise to get a signature, not about any possible reality of carbon problems!

I still have faith, as we have time.

by Kate | 6th Jul 21, 9:35pm 1625564125

We have time? I don't think so;

https://www.youtube.com/watch?v=HvD0TgE34HA&list=WL&index=4

by powerdownkiwi | 6th Jul 21, 8:05pm 1625558715

There are three aspects to this.

Firstly, we have an inter-generational obligation - to not hand them on a crock of shyte. That is irrespective of politics or mandate. Hiding behind ' they have no mandate' is cowardly, I'd suggest.

Secondly, this is lawyers, keeping the Government to it's Law, nothing wrong there.

Third, though, is interesting: what we do is use the energy that exhausts as CC, to supply the stuff they buy with their big fees. One wonders whether they realise that without FF, the system they charge in, isn't. I doubt they've gone that far.

by Foxglove. | 6th Jul 21, 8:55pm 1625561759

0Lawyers keeping the government to its laws. That is the role of the judiciary or the law commission. Not used to you PDK resorting to sweeping generalisations and only because the said agenda might, I would suspect, align with that of your own. What would you be saying if they were attempting to water down the commissions findings then? Lawyers have the right of any individual to express whatever personal views that they may harbour but they should not form collectively to use the court system to their advantage to pursue those aims, nothing more than their personal opinion(s,) simply because they are equipped and have the means to act as such, as opposed to those who are not so. You yourself with all your fervour and undoubted sincerity do not have much of this ability do you, and certainly not on this scale. The courts are not the exclusive stamping ground on any issue, that should limited to a select group of identities carried forward only by virtue of the qualifications they possess.

by powerdownkiwi | 6th Jul 21, 10:22pm 1625566972

Bollocks. The Courts are where we adjudicate 'property rights'. Sure, the rules were set up by the winners to suit themselves; but at the end of the day truth - as in: fact - has to prevail. Logic tells you that; anything based on horsepoo cannot really be argued. Oh, and all they are doing is put it in front of the Judiciary - interesting attempt to fudge, that

But the joke is that I sent them a piece about the Limits to Growth and got a lightweight nga mihi-type pat-away in reply. They are RIGHT to push Climate; we're into feedback territory already (as the Northern hemisphere currently, tells anyone but an imbecile). But without addressing energy, resources, population and growth, they're wasting their time.

You seem to have a bias yourself - ever wondered what the next generation, and the next and the next - will think of our self-indulgence and ignorance?

by AndrewRiddell5886 | 7th Jul 21, 7:13am 1625598829

You are effectively arguing for a dictatorship.

by Kate | 6th Jul 21, 9:33pm 1625564038

Think of it this way - if they win Earth wins. Time to stop side-stepping: reality is upon us.

https://www.youtube.com/watch?v=HvD0TgE34HA&list=WL&index=4

Listen to the Earth systems scientists.

by jason barrier | 7th Jul 21, 6:12am 1625595168

If this gaggle of legal busybodies is so determined to get to the "actual level of 'net' emissions" then are they also accounting for the huge volume of previously emitted methane which breaks down each year and largely offsets our new 'gross' methane emissions? - i.e. Are they using net methane or GWP* in their calculations? If not - why not? Seems to me incongruous to argue on the one hand for accurate 'net' figures and then completely overlook that most important 'net' figure of all for New Zealand - that of net methane emissions. Here is a link to Brian Easton's excellent article on this https://www.pundit.co.nz/content/up-in-the-clouds

by powerdownkiwi | 7th Jul 21, 11:44am 1625615055

I read that, and it took me two seconds to see the bollocks; the net GHG emissions are still there, just turned into CO2.

Farming, as practiced, is the process of turning fossil energy into food energy, fairly inefficiently. That's emitting in all sorts of ways already. Besides being unsustainable, due to to finite nature of the source.

And by the time farming becomes truly sustainable, it won't be your current business model. Nothing like it. Self-justification often leads us down a false pathway - good luck to you.

by sparrow | 7th Jul 21, 11:52am 1625615559

The methane is turned into CO2 in the atmosphere, but that was where it came from in the beginning.

The grass removes CO2 out of the atmosphere when it grows and the ruminant eats the grass. Its a cycle.

by rastus1 | 7th Jul 21, 12:01pm 1625616111

ummmm you forgot that carbon is being injected into the cycle via fossil fuel based ferts etc!!

by profile | 7th Jul 21, 12:22pm 1625617356

...and perhaps you forgot soil carbon.
' - Adaptive multi-paddock grazing can sequester large amounts of soil C.
- Emissions from the grazing system were offset completely by soil C sequestration.
- Soil C sequestration from well-managed grazing may help to mitigate climate change.'
https://www.sciencedirect.com/science/article/pii/S0308521X17310338?via…

by sparrow | 7th Jul 21, 12:33pm 1625618016

Indeed they are, but the topic was biological methane which adds no new carbon to the atmosphere (unlike methane from oil and gas wells, which does add new carbon).

And unfortunately with 7 billion people on the planet the only alternative to modern farming methods is mass starvation.

by powerdownkiwi | 8th Jul 21, 9:22pm 1625736173

That is incorrect. See below re the FF input to farming.

And as to the second point, if they are going to die without fossil-fuelled agriculture, they're gone burgers anyway.

by jason barrier | 7th Jul 21, 6:00pm 1625637640

Dear Powerdownkiwi - Perhaps try re-reading Brian Easton's article and this time take more than 2 seconds to try and understand it. Since 1980, on average, agriculture emits roughly the same amount of methane as what is annually breaking down (approx 1Mt) - with a NET warming effect close ZERO. Nitrous Oxide emissions from agriculture are another matter as they accumulate just like CO2 does. With respect to the rest of your somewhat random commentary about 'unsustainable', 'inefficient and self justifying farmers - please take a deep breath - all I am saying is you can't argue for accurate comparisons only when it suits your world view. You are either for accurate comparisons or you are against them. I am all for accurate scientific comparisons and for the comparison of NET emissions for all gases - including methane.

by powerdownkiwi | 8th Jul 21, 9:19pm 1625735997

I consulted two scientists in the (actual) game before getting back to you. One acknowledges that Easton is right if you merely look at the inner circle. But he points out that due to it's potency and the timeframes involved, we need to address it. That said, he reckoned other sectors, like transport, contribute more to GHG, and that we need food but we don't need to fly to the Bahamas.

The problem - as Rastus pointed out - is that Ag as practiced is responsible for drawing-in external GHG deficits, including their portion of those from transport, and from de-rainforest-ation for your palm kernel etc. I see you as taking in several calories of fossil energy (carbon) to produce one of food, so I see you as fairly inefficient food producers, using a finite resource which ends up as GHG's.

Rod Carr, speaking tonight (Otago Uni, Science Festival) said that ruminant methane was the biggest tech puzzle for NZ - and he struck me as having his head around it all.

The other scientist reckoned the first Comment (Pundit/Easton) said it all.

Maybe I was a bit quick, and I apologize for that (there is some unfinished business I have with Pundit). In practical terms, my better half co-started and still contributes to Our Food Network - some of us are pushing for a way forward (because either way, fossil fuels are leaving food production and when they do, the world will be a different place. We need to have a Plan B.

Go well

by Pietro | 7th Jul 21, 11:59am 1625615991

When farmers are bankrupt, when the poor are unable to drive, and when there is mass unemployment because access to energy is restricted to the wealthy, these entitled liberals will still be dragging in high six figure incomes. The world is bonkers. Slow and sure, taking everyone along, is the way to do these things, not narcissism.