10/08/2021·3 mins to read
Climate change litigation risk
This article is from Issue 1 of our “Local government climate update” series.
Climate change litigation is on the rise. Activist groups are using the courtroom as a means to instigate change, particularly in situations where governing bodies are slow to take action. Local government is at risk of being targeted, given its inherent high public profile and its broad decision-making functions, including under the Local Government Act 2002 and the Resource Management Act 1991. Several significant climate change decisions have been released in the past year, across a variety of jurisdictions and legal avenues.
Tort (“Private”) law
The development of climate change duties is restricted by the normal bounds of tort law, however, recent decisions indicate judges are increasingly willing to push boundaries to address climate change issues. Smith v Fonterra Co-Operative Group is a leading case, relevant to local government in that it marks the potential development of a new legal duty. This case involved proceedings by Mr Smith against several corporate defendants, each with a strong link to greenhouse gas emissions. Mr Smith alleged that he would suffer harm from the effects of climate change, brought on by the release of greenhouse gases, by these corporates, into the climate system. The High Court struck out Mr Smith’s claims in nuisance and negligence, but refused to strike out a new common law claim that would hold corporates responsible to the public for their emissions. The High Court decision was appealed and we are expecting the Court of Appeal’s decision to be released shortly.
More recently, the Australian Federal Court established a new duty of care in Sharma and others v Minister for the Environment. In short, this involved a class action on behalf of all Australian children, seeking an injunction to prevent the Minister for the Environment from approving an extension to a coal mine. The Court held that the Minister owed a duty to take reasonable care to avoid causing harm to children, recognising that a reasonable person in the position of the Minister would foresee that approving the extension could expose children to a risk of personal injury (from climatic hazards, such as bush fires). Although the Court ultimately declined to grant the injunction, we anticipate the Australian Courts are likely to see a significant increase in claims based on this new duty of care and there is potential for similar claims to develop in New Zealand.
Climate change litigation is also emerging in the judicial review space. In Hauraki Coromandel Climate Change Action Inc v Thames-Coromandel District Council, the High Court quashed the Council’s decision not to approve the Mayor signing the Local Government Leaders’ Climate Change Declaration. The relevant motion (which failed to pass) was moved by a councillor at the meeting in the absence of an officer report. The Court ordered the Council to reconsider its decision consistently with the requirements of the Local Government Act 2002 and the Council’s Significance and Engagement Policy. The Court also commented on the fact that climate change is a significant issue.
This case serves as a reminder to local authorities about the importance of following robust decision-making processes, especially in relation to contentious topics like climate change.
There is also a body of climate change litigation testing the bounds of human rights law by alleging that state inaction is a violation of fundamental human rights - in domestic or international law. This approach has been particularly successful in Europe, where a strong body of human rights law exists - flowing from the European Convention on Human Rights (ECHR).
In the recent case of Milieudefensie et al v Royal Dutch Shell ECLI:NL:RBDHA:2021:5339, the Hague District Court held (among other things) that Shell owed a duty of care to reduce its greenhouse gas emissions. This was on the basis of Articles 2 and 8 of the European Convention on Human Rights (ECHR) - the rights to life, and to a private life, family life, home and correspondence, respectively. This decision was shortly followed by VZW Klimaatzaak v Kingdom of Belgium 2015/458, where the Court held that the state of Belgium had failed to take appropriate measures to prevent the effects of global warming, consequently breaching the Belgian Civil Code and again, Articles 2 and 8 of the ECHR. These decisions build on the landmark decision of Urgenda Foundation v State of the Netherlands  HAZA C/09/00456689 (Urgenda) in which the Dutch Supreme Court ordered the Dutch Government to reduce its greenhouse gas emissions.
Though these decisions are significant in a global context and growing in number, they are less likely to be applicable in New Zealand. This is because the statutory scheme under the New Zealand Bill of Rights Act 1990 and the New Zealand Human Rights Act 1993 are significantly different to the European laws.
These decisions illustrate that courts are aware of the significance of climate change and are increasingly willing to contemplate novel claims in this area. Such development does increase the risk of climate change litigation being brought against local government. However, the successful claims we are seeing internationally are limited in their application to the current New Zealand context, and judges are cautious to take the leap from recognising duties and obligations, to actually requiring action (ie granting injunctions).
Thanks to Rachael Mortiaux and Emily Moon for their assistance in writing this article.
  NZHC 419.