Lawyers for Climate Action NZ Incorporated v. The Climate Change Commission

New Zealand’s Climate Change Response Act 2002 (as amended 2019) (Act) sets a goal of net-zero emissions by 2050 (2050 Target), and created the He Pou a Rangi | the Climate Change Commission (Commission) to provide periodic expert advice to the government in meeting that goal. On July 1 2021, Lawyers for Climate Action NZ Inc (LCANZI) filed a judicial review application against the Commission and Minister for Climate Change (Minister) arguing that advice provided by the Commission to the Minister was unlawful. LCANZI is an incorporated society of over 300 lawyers seeking to ensure more effective action in Aotearoa New Zealand against climate change. The Commission had provided advice for the purpose of setting New Zealand’s first three domestic emissions budgets under the Act (Budgets Advice), and on whether Aotearoa New Zealand’s then current nationally determined contribution (the 2016 NDC) was compatible with contributing to the global effort under the Paris Agreement to limit global average temperature increase to 1.5°C above pre-industrial levels (the 1.5°C Goal) - the Commission advised on the level of commitment that would be compatible with that effort (NDC Advice). NDC Advice LCANZI challenged that advice as being based on a faulty methodology which amounted to an “error of logic” ([81]). The Commission compared the level of New Zealand’s international commitment (as set out in the 2016 NDC) with modelling in the IPCC’s 2018 Special Report. That modelling was of different global pathways that would be consistent with the 1.5°C Goal, comparing net emissions in the target year that would be consistent with net emissions in a base year (a net:net measure) to derive a percentage reduction. The Commission applied this modelling to New Zealand’s gross emissions in the base year (a gross:net measure) to derive a percentage reduction by the target year that would be consistent with the 1.5°C Goal. LCANZI argued that it was an error to use the gross:net measure, as it meant that the NDC Advice understated the level of reductions necessary to be consistent with the 1.5°C Goal, and was unlawful, irrational, and unreasonable. Budgets Advice In terms of the Budgets Advice, budgets must be set with “with a view to meeting the 2050 target and contributing to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5° Celsius above pre-industrial levels” (s 5W, s 3). LCANZI argued that the Commission impermissibly focused only on the 2050 Target, rather than the 1.5°C limit, and further the Commission had pursued “economically affordable” budgets rather than the statutory requirement that budgets be “ambitious but likely to be technically and economically affordable” (s 5ZC). LCANZI further challenged the accounting methodology recommended by the Commission to measure progress towards meeting emissions budgets and the 2050 Target. LCANZI contended that the legislation mandated Greenhouse Gas Inventory accounting (GHGI Accounting) whereas the Commission recommended modified activity-based accounting (MAB Accounting). LCANZI argued that the Commission erred in law in recommending MAB Accounting, the consequence of which it risked portraying a false sense of ambition of the level of emissions reductions in the budgets than the emissions that the atmosphere would actually see during the budget periods. Lastly, LCANZI contended that the Budgets Advice was irrational, unreasonable and inconsistent with the legislative purpose of contributing to the global 1.5°C effort, as it would ultimately allow for emissions to increase over the 2010 - 2030 period. High Court decision On November 23, 2022, the High Court rejected all four claims. As a preliminary issue, Mallon J held that advice from the Commission was reviewable, despite its status as advice rather than traditional government decision-making. This is because it is public advice, with public consequences that are separate from the consequences of the Minister’s ultimate decision ([65]). In terms of the NDC Advice, Mallon J held that the Commission did not make a mathematical or logical error in its application of the IPCC Modelling, as it did not intend to make a direct mathematical comparison, using the IPCC modelling only as an indirect comparator. Mallon J held that the NDC Advice “was potentially misleading (particularly to lay readers or anyone without the time to read the Advice in its full detail)”, to the extent that it could be interpreted as advice that reductions of 36% below 2005 gross levels would be compatible with the IPCC Modelling ([119]). However, Mallon J went on to find that “while it might have been more transparent to carry out a strictly mathematical comparison and to then adjust for value judgments, the Commission did not make a serious logical error that led to an irrational recommendation. The Commission knew what it was doing and had reasons for its approach. It meant that its NDC Advice on consistency with the 1.5°C global effort was not based entirely on a truly mathematical comparison with the IPCC 1.5°C global pathways” ([127]). Further, the Minister, as the decision-maker, had been made aware of the Commission’s approach ([125]). In terms of the Budgets Advice, Mallon J held that the Commission had correctly understood its role as being to provide advice, taking into account both the 2050 Target and contributing to the global 1.5°C effort. Mallon J found that LCANZI sought to elevate the statutory purpose to contribute to the global 1.5°C effort as a primary, independent, and enforceable duty ([162]). Mallon J agreed with the Minister that the words “contribute to” are more consistent with an aspiration, rather than an obligation ([162]). Thirdly, Mallon J held that the Commission did not err in law by recommending MAB Accounting as the accounting methodology to measure progress, holding that the Act empowered the Commission to give advice on the appropriate accounting methodology. Finally, Mallon J held that the Commission’s Advice was not irrational or unreasonable. While Mallon J held that LCANZI was “correct that neither the NDC Advice nor the Budgets Advice put New Zealand on track to reduce domestic emissions by 2030 as per the IPCC global pathways”, the legislation did not require this in order to contribute to the global 1.5°C effort. On December 21, 2022, LCANZI sought leave to appeal to the Court of Appeal, which was granted. On March 28, 2025, the Court of Appeal released its judgment. The Court of Appeal agreed with the High Court that the Commission’s advice was, in principle, amenable to judicial review. However, the Court dismissed the grounds of review, largely adopting the reasoning of the High Court. While the Court of Appeal agreed that emissions budgets are intended to serve the dual purpose of the Act, being both the 2050 Target and contributing to the goal of limiting warming to 1.5°C, it did not accept that this makes contributing to the 1.5°C goal a substantive bottom-line requirement under the Act ([104]). While LCANZI argued that a budget allowing for an increase in net emissions over the budget period will be contrary to the purpose of the Act and unlawful, the Court of Appeal held that it does not necessarily follow that an increase in net emissions in a particular budget period means that the series of emissions budgets of which it forms part of have not been set with a view to contributing to the global effort to achieve the 1.5°C goal ([107]). On April 30 2025, LCANZI sought leave to appeal to the Supreme Court. LCANZI is seeking to bring two arguments to the Supreme Court (not continuing the accounting methodology and unreasonableness challenge). First, LCANZI is asking the Court to find that New Zealand’s emissions budgets are not consistent with the purpose of the Act, which is to: “provide a framework by which New Zealand can develop and implement clear and stable climate change policies that contribute to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5°C above pre-industrial levels”. Second, that the approach taken by the Commission in the NDC Advice was unlawful as it was not mathematically meaningful or logical, and did not provide a valid basis either to assess whether the NDC was consistent with the 1.5°C goal, or for the Minister to decide to adopt a new NDC, and was not communicated in a transparent or readily understandable way.