The Government has recently introduced the Climate Change Response (Tort Liability) Amendment Bill (Bill) into Parliament. The Bill sheds light on the extent to which the Government plans to limit liability in climate change litigation.

The Bill represents a significant legislative development. Once passed, Parliament would have removed tortious liability that would otherwise potentially exist at law, a step that has important implications for the people, groups or organisations who take action on climate change, and provides certainty to emitters or others operating within the Emissions Trading Scheme.

When the Government announced its intention to introduce this Bill, we flagged that some key questions would only be answered once the Bill was released (see our previous article here). We discuss those answers and what they mean for businesses and the public below.

What does this mean? 

For businesses currently operating within New Zealand’s emissions regulatory framework, the Bill will provide certainty, as the risk of facing tort claims for climate change harm caused by greenhouse gas emissions, whether direct or vicarious liability, would be removed. 

For climate advocacy groups and potential claimants, the Bill closes off the common law route for bringing climate-related claims in tort. The Emissions Trading Scheme (ETS) regulatory framework remains, but the courts are no longer a forum for pursuing a remedy in tort for climate-related harm caused by emissions.

The Bill will now go through the Parliamentary process, but this contentious Bill has already been met with resistance, with the Labour Party promising to repeal the law if enacted. We will continue to monitor its progress with interest. 

The Bill and its detail

We address four key questions about the Bill: 

• Scope: The Bill is very broad and decisive. The Bill inserts a new Part 8 into the Climate Change Response Act 2002 (CCRA) creating an absolute statutory bar that no person (including the Crown) can be found liable in tort for climate change, or any climate change-related damage, caused by greenhouse gas emissions.
  
  The statutory bar applies to what the Bill defines as emissions-related climate change effects. That definition is deliberately expansive. It captures both direct and indirect emissions, for example, not just the emissions from a factory's own processes, but also emissions arising from a factory's use of non-renewable energy.
  
  The Bill also defines tort liability as including all forms of tort recognised at common law (negligence, nuisance, trespass, duty of care and any other novel claims of loss) that may have been recognised but for the proposed statutory bar.
  
  This decisive statutory bar is to apply notwithstanding any other enactment. This is a strong legislative statement which means the bar will not be displaced or qualified by any other legislation that might otherwise appear to preserve climate related tort liability. Parliament has made clear that, where there is any tension between the Bill and another Act, the Bill would prevail.

• Does the bar apply retrospectively? No, but its practical effect is similar. The Bill does not apply to proceedings that have been determined by a court or tribunal but does apply to all existing proceedings that have not yet been ‘finally determined’. The Bill explicitly applies to the active Smith v Fonterra proceeding, meaning that once the Bill is enacted, the case will be over (but could be reinitiated if the legislation is later repealed). 
• How does the bar interact with existing rights and decisions? As discussed above, the statutory bar will apply to all proceedings that have not yet been finally determined and any proceedings commenced after the Bill, removing any rights those individuals have to bring (or continue) those claims while enacting statutory immunity for current defendants against climate-related tortious liability. 
• This bar will also impact the existing rights of private individuals and groups who might seek to bring civil claims against emitters. From the commencement of the Bill, no proceedings will be able to be brought for tortious liability for emissions-related climate change effects. The regulation of greenhouse gas emissions will remain firmly within the remit of Parliament, not the courts. 
• How are decision-makers directed to act? Courts and tribunals must act in accordance with the statutory bar. There is no discretion. Judges cannot find liability in tort for climate change or emissions-related climate change effects, regardless of the strength of the evidence or the novelty of the claim. 
• What does the bar not affect? The Bill makes it clear that New Zealand’s climate change response will be managed through the CCRA and Emissions Trading Scheme (ETS). Therefore, those regulatory measures will not be impacted, and the bar does not affect:
  • Obligations under the CCRA itself or under the ETS. Businesses with ETS obligations remain fully bound by them.
  • Obligations of decision-makers under the CCRA itself or under the ETS. The public can still judicially review decision-making processes and decisions. 
  • Regulatory and enforcement action by public bodies. The Government's responsibilities and powers under the CCRA are unaffected.
  • Claims in tort that are not based on, or related to, emissions-related climate change effects. Ordinary negligence, nuisance, and other tort claims which are not related to climate change remain available.
  • Criminal liability. The Bill is confined to civil tort claims.

Get in touch

If you would like to speak to one of our experts about the Bill and what it means for you, please get in touch.

Special thanks to Tawhiwhi Watson for his help in preparing this article.