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Thomson v Minister for Climate Change Issues

Thomson v Minister for Climate Change Issues

Case [2017] NZHC 733 2 November 2017

Standing

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

Climate Change Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE

CIV 2015-485-919 [2017] NZHC 733

UNDER
the Judicature Amendment Act 1972 and

Part 30 of the High Court Rules

IN THE MATTER OF

decisions made under the Climate Change Response Act 2002 and public decisions made in relation to the United Nations Framework Convention on Climate Change

BETWEEN

SARAH THOMSON Plaintiff

AND

THE MINISTER FOR CLIMATE CHANGE ISSUES

Defendant

Hearing: 26-28 June 2017

Appearances:

D Salmon, M Heard, S Humphrey for the Plaintiff
P Gunn, K Laurenson, K Stone for the Defendant

Judgment:

2 November 2017

JUDGMENT OF MALLON J

Table of contents

Introduction ....................................................................................................................................... [1] Climate change .................................................................................................................................. [8] The international framework ......................................................................................................... [19] The Convention............................................................................................................................. [19] The Kyoto Protocol....................................................................................................................... [26] The path to Paris .......................................................................................................................... [31] The Paris Agreement .................................................................................................................... [32] Further developments in international negotiation ...................................................................... [40] New Zealand domestic legislation .................................................................................................. [43]

New Zealand’s targets in more detail ............................................................................................ [48]

THOMSON v THE MINISTER FOR CLIMATE CHANGE ISSUES [2017] NZHC 733 [2 November 2017]

The 2050 target............................................................................................................................. [49] The 2020 target............................................................................................................................. [55] The 2030 target............................................................................................................................. [56] How does New Zealand intend to meet its target ......................................................................... [70] The 2017 General Election ............................................................................................................. [72] First cause of action ........................................................................................................................ [73] Introduction .................................................................................................................................. [73] Does s 225 require a review? ....................................................................................................... [75]
Is the Minister required to exercise her discretionary power under s 224? ................................. [84] Second cause of action: NDC decision (failure to take into account relevant considerations) . [99] The pleading ................................................................................................................................. [99] Justiciability ............................................................................................................................... [101] Business as usual ........................................................................................................................ [135] Tokelau and developing countries .............................................................................................. [142] The NDC..................................................................................................................................... [158] The third cause of action: NDC irrational/unreasonable .......................................................... [161] Fourth cause of action: NDC decision (mandamus) ................................................................... [177] Result .............................................................................................................................................. [178]

Introduction

[1] This is a judicial review proceeding concerning the Government’s response to climate change. It is brought by the plaintiff who is a law student concerned at that response and the consequences of its alleged inadequacy on future generations.

[2] It is common ground that climate change presents significant risks and that serious and prompt global action is required if dangerous consequences for the planet and its inhabitants are to be prevented.

[3] For example, Professor Hansen, who is a leading expert in climate change and who has filed affidavit evidence for the plaintiff, says:

We will not preserve a habitable climate system unless developed nations act without further delay, both to phase out their own emissions and to aid the balance of nations in the development of their own carbon free energy sources.

[4] Similarly, the Hon Timothy Groser, the Minister for Climate Change Issues over the relevant period, who has filed an affidavit on behalf the defendant, says:

Tackling climate change is crucial if we are to avoid harm to people, the environment and the economy. As Minister, I accepted the global scientific

consensus on climate change as set out in the [AR5].…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thomson v Minister for Climate Change Issues

Details

AGLC: Thomson v Minister for Climate Change Issues [2017] NZHC 733
Case: [2017] NZHC 733
Decision Date: 2 November 2017

CaseChat Overview and Summary

The plaintiff, Sarah Thomson, a law student, brought this judicial review proceeding against the Minister for Climate Change Issues challenging two decisions relating to targets for reducing greenhouse gas emissions. The first concerned the 2050 target set under domestic legislation. The second concerned the 2030 target set under the Paris Agreement. The plaintiff sought declarations that the Minister had breached the Climate Change Response Act 2002 by not reviewing the 2050 target following updated international scientific consensus about climate change, and that the Minister had made an irrational or unreasonable decision in setting the 2030 target. The plaintiff also sought orders quashing the relevant decisions and orders that they be remade. The Minister argued that the 2050 target was not amenable to review and that the 2030 target fell to be determined in international rather than domestic fora and was a policy decision involving balancing competing considerations outside the Court’s proper role. The Court held that, following the release of the AR5, the Minister was required to turn her mind to whether there had been any material change as between the AR4 and the AR5 that was relevant to the 2050 gazetted target, and that this did not occur. However this cause of action had been overtaken by subsequent events. The new Government had announced it intended to set a new 2050 target. Court ordered relief was therefore unnecessary. The Court was not persuaded the Minister made any reviewable error for which the Court may intervene in relation to the 2030 target. The international framework had been followed. It had not been demonstrated the NDC decision was outside the Minister’s power under this framework. Nor did it prevent New Zealand from doing more between now and 2030 than contemplated in its NDC decision. The international process envisaged review and demonstrated progression by developed countries including New Zealand. The community had elected a new Government and it was for that new Government to weigh the competing factors and to reach a view about the appropriate targets going forward. The application for judicial review was dismissed.

Orders