Thomson v Minister for Climate Change Issues
[2017] NZHC 733
•2 November 2017
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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 DefendantJudgment:
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]. It is not in doubt that climate change is a global issue that needs to be addressed seriously and promptly by all states if global warming is to be kept at less than 2ºC. An increase of more than 2ºC would be dangerous.
[5] Judicial review is concerned with the lawful exercise of statutory or public powers. It provides a constitutional check on public power exercised by the Executive branch of government, but it has limits reflecting the separation of powers between the Courts and the Executive. There is a difference in view between the parties in this case about whether the Government’s response to climate change, as challenged in this proceeding, is amenable to review by the Court and if so, on what basis.
[6] This judicial review challenges two decisions made by the Minister for Climate Change Issues. Each concerns a target for reducing harmful greenhouse gas emissions. One of those, the 2050 target, was set under domestic legislation. It is accepted this is amenable to review but the parties differ on whether the Minister breached that legislation by not reviewing the target following updated international scientific consensus about climate change.
[7] The other decision concerns the setting of a 2030 target pursuant to an international agreement (the Paris Agreement). The defendant considers this decision falls to be determined in international rather than domestic fora. The defendant further considers the 2030 target is a policy decision which involves balancing competing considerations and is outside the Court’s proper role. The plaintiff considers the decisions are amenable to review on traditional judicial review grounds.
Climate change
[8] The defendant accepts the following matters (including those detailed in the footnotes) pleaded by the plaintiff:
(a) Human activities have been substantially increasing atmospheric concentrations of greenhouse gases, including CO2 (carbon dioxide), CH4 (methane) and N2O (nitrous oxide). The accumulation in the
atmosphere of greenhouse gases released as a result of human activity increases the natural greenhouse gas effect which causes the warming of the planet. Climate change will result on average in an additional warming of the Earth’s surface and atmosphere. This will adversely affect natural ecosystems and humankind.
(b)Evidence of the warming of the climate system is unequivocal and, since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere1 and ocean2 have warmed, the amount of snow and ice has diminished,3 sea levels have risen,4 and the concentrations of greenhouse gases have increased.5 It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century.
(c) Global warming will have many severe impacts, often mediated through water. The damage resulting from the effects of climate change will accelerate as the world gets warmer. Damage as a result of climate change is already being observed. The impacts of climate change are not evenly distributed, and risks are generally greater for disadvantaged people and communities in countries at all levels of development.
(d)The largest share of historical global greenhouse gas emissions originated in developed countries. On average, developing countries
currently and historically have had lower per capita emissions than
1 Each of the last three decades has been successively warmer at the Earth’s surface than any
preceding decade since reliable records began in 1850. In the Northern Hemisphere 1983 to
2012 was likely the warmest 30 year period in the 1,400 years prior to 2012.2 Ocean warming dominates the increase in energy stored in the climate system, accounting for more than 90 per cent of the energy accumulated between 1971 and 2010. It is virtually certain
that the upper ocean (0-700 m) warmed from 1971 to 2010, and it likely warmed between 1870 and 1971.
3 Over the last two decades the Greenland and Antarctic ice sheets have been losing mass, glaciers have continued to shrink almost worldwide, and Arctic sea ice and Northern Hemisphere spring
snow cover have continued to decrease in extent.
4 The rate of sea level rise since the mid-19th century has been larger than the mean rate during the previous two millennia. Over the period 1901 to 2010, the global mean sea level rose by 0.19 m.
5 Total anthropogenic greenhouse gas emissions were the highest in human history from 2000 to
2010 and reached 49 (+4.5) Gigatonnes of CO2 (GtCO2) equivalent (that is, CO2 and the equivalent in other greenhouse gases) per year in 2010.
developed countries. New Zealand is a high per capita emitter on some metrics when compared to other developed countries, but the respondent considers it is a low per capita emitter on others.
(e) Emissions have been, and continue to be, driven by economic growth.
Without additional efforts to reduce greenhouse gas emissions beyond those in place today, emissions growth is expected to persist driven by growth in global population and economic activities. Unless curtailed, the share of global emissions originating in developing countries will grow to meet their social and development needs. Stabilisation of greenhouse gas concentrations in the atmosphere is, however, feasible and can be consistent with continued growth.
(f) The risk of serious, irreversible impacts from climate change increases strongly as concentrations of greenhouse gases in the atmosphere rise. Limiting climate change and avoiding its dangerous consequences, including serious damage to the human environment in the future, requires substantial and sustained reductions of greenhouse gas emissions. A failure to reduce global greenhouse gas emissions is also likely to have significant adverse economic impacts. Delay in mitigating climate change may result in higher mitigation costs and fewer mitigation options.
(g)The global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response. Effective mitigation will not be achieved if individual states advance their own interests independently.
(h)Steps required to understand and address climate change will be environmentally, socially and economically most effective if they are based on relevant scientific, technical and economic considerations and continually re-evaluated in the light of new findings in these areas.
[9] The above matters are set out in the fifth Assessment Report (AR5) of the Intergovernmental Panel on Climate Change (IPCC). The IPCC is a scientific body established in 1988 under the auspices of the United Nations and the World Meteorological Organisation.6 The IPCC assesses and publishes reports on the latest information about climate change.7 The AR5 was published in stages between September 2013 and November 2014.8
[10] The AR5 is the most comprehensive assessment of scientific knowledge on climate change since its predecessor, the AR4, which was published in 2007. Professor Frame, a Professor of Climate Change at Victoria University,9 who has filed an affidavit for the defendant, describes the IPCC portrayal of the scientific scale of the climate change problem as “the best available synthesis of the literature and forms a sound body of evidence”.10 Professor Renwick11 and Professor Hansen,12 the climate change experts who have filed affidavits for the plaintiff, agree, although they say it represents a “conservative” consensus of the relevant scientific community.
[11] The AR5 contains the following details about the emissions levels that will have dangerous and irreversible consequences for the earth and its inhabitants and the global mitigation efforts required to avert this (the defendant accepts these matters):
(a) Dangerous anthropogenic interference with the climate system will inevitably occur if the global temperature rises by 2ºC or more above
6 The IPCC has 195 members including New Zealand.
7 These are generally divided into three working groups: Working Group I covers existing scientific knowledge about the climate system and climate change; Working Group II covers the consequences of climate change for the environment, economy and society; and Working Group III covers possible strategies in response to these changes.
8 The Working Group I report was published on 28 September 2013; the Working Group II report
was published on 30 March 2014; the Working Group III report was published on 13 April 2014;
and the AR5 Synthesis Report was published on 2 November 2014.9 Professor Frame is a Lead Author on Working Group I.
10 Affidavit of Professor Frame (14 April 2016) at [34].
11 Professor Renwick is also a Professor at Victoria University and a Lead Author for the AR5 and the AR4.
12 Professor Hansen is an Adjunct Professor at Columbia University. He holds degrees in physics, maths and astronomy and a PhD in physics and has focussed on the Earth’s climate since the mid-1970s. He was formerly a director of the Earth Institute’s programme on Climate Science Awareness and Solutions and a Director of the NASA Goddard Institute for Space Studies.
pre-industrial levels. It is also possible that dangerous anthropogenic interference with the climate system will result from a lower global temperature rise. In baseline scenarios (that is, in scenarios without additional mitigation), the global mean surface temperature will increase by between 3.7ºC and 4.8ºC by 2100 compared with pre- industrial levels.
(b)Mitigation scenarios in which it is likely that the temperature change caused by anthropogenic greenhouse gas emissions can be kept to less than 2ºC relative to pre-industrial levels have atmospheric CO2 equivalent concentrations in 2100 of about 450 parts per million (ppm). These scenarios are characterised by 40 to 70 per cent global anthropogenic greenhouse gas emissions reductions by 2050 compared with 2010, and emissions levels near or below zero (CO2 removal from the atmosphere) in 2100.
(c) The cumulative emissions that are consistent with staying under the
2ºC target are assessed at different levels of probability (33 per cent,
50 per cent, and 66 per cent).13 To have a 66 per cent probability of limiting global warming to less than 2ºC (since the period 1861-1880) there is a total emissions budget of 1000 GtC. To have at least a
50 per cent chance of limiting global warming to less than 2ºC, the total emissions budget is 1210 GtC. To have at least a 33 per cent chance, the total emissions budget is 1570 GtC.
(d)These budgets reduce to 790 GtC (66 per cent probability), 820 GtC (50 per cent probability), and 900 GtC (33 per cent probability) when
taking into account non-CO2 forcings.
13 Limiting the warming caused by anthropogenic CO2 emissions alone with a probability of 33 per cent, 50 per cent, and 66 per cent (or lesser) to less than 2ºC since the period 1861-1880 will require cumulative CO2 emissions from all anthropogenic sources to stay between 0 and about
1570 Gigatonnes of carbon (GtC) (5760 GtCO2), 0 and about 1210 GtC (4440 GtCO2), and 0 and about 1000 GtC (3670 GtCO2) since that period, respectively. These upper amounts are reduced to about 900 GtC (3300 GtCO2), 820 GtC (3010 GtCO2), and 790 GtC (2900 GtCO2) respectively when accounting for non-CO2 forcings as in RCP2.6 (this is the lowest measure of
emissions at the end of the 21st century considered in AR5 which is likely to correlate to a
temperature increase of 0.3ºC-1.7ºC).
(e) By 2011 515 GtC had already been emitted.14 At current rates of emissions, on the 820 GtC (50 per cent probability) basis, the remaining 305 GtC will likely have been emitted by 2035.
(f) There are multiple mitigation pathways that are likely to limit warming to below 2ºC relative to pre-industrial levels. Mitigation pathways consistent with limiting warming to below 2ºC are characterised by substantial global emission reductions over the next few decades and near zero emissions of CO2 and other long-lived greenhouse gases by the end of the century.
(g)Delaying global aggregate mitigation efforts beyond those in place today through until 2030 will likely substantially increase the difficulty of transitioning to low longer-term emissions levels and narrow the options for maintaining temperature change below 2ºC relative to pre-industrial levels, if that can be achieved at all. Global mitigation actions will require substantially higher rates of emissions reductions from 2030 to 2050; a much more rapid scale-up of low- carbon energy over this period; a larger reliance on carbon dioxide removal in the long term; and higher transitional and long-term economic impacts.
[12] Professor Renwick sets out some of the likely negative impacts of climate change on humans as discussed in the AR5. These include undermining food
14 That is, 1890 GtCO2 with a 90 per cent uncertainly interval of 1630-2150 GtCO2.
security,15 increasing ill-health particularly in developing countries with low income,16 and increasing the displacement of people.17
[13] Professor Frame provides further commentary on the target of limiting warming to no more than 2ºC above pre-industrial levels. He describes this target as a proxy for the ultimate objective of “[stabilizing] greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.18 The IPCC does not state that 2ºC is the “safe-dangerous” threshold. Rather, the key risks become more acute with additional warming above
2ºC.
[14] The AR5 also discusses the close to linear relationship between cumulative CO2 emissions and projected global temperature rise. There is also a discussion about potential “tipping points” when abrupt or non-linear changes occur. There is
little consensus about the likelihood of these.
15 Due to projected climate change by the mid-21st century and beyond, global marine species redistribution and marine biodiversity reduction in sensitive regions will challenge the sustained provision of fisheries productivity and other ecosystem services (high confidence). For wheat, rice and maize in tropical and temperate regions, climate change without adaptation is projected to negatively impact production for local temperature increases of 2ºC or more above late 20th century levels, although individual locations may benefit (medium confidence). Global temperature increases of 4ºC or more above late 20th century levels, combined with increasing food demand, would pose large risks to food security globally (high confidence). Climate change is projected to reduce renewable surface water and groundwater resources in most dry subtropical regions (robust evidence, high agreement), intensifying competition for water among sectors (limited evidence, medium agreement).
16 Throughout the 21st century, climate change is expected to lead to increases in ill-health in many regions and especially in developing countries with low income, as compared to a baseline without climate change (high confidence). By 2100 for RCP8.5 (a measure of emissions at the end of the 21st century that is likely to correlate to a temperature of 2.6-4.8ºC), the combination of high temperature and humidity in some areas for parts of the year is expected to compromise common human activities, including growing food and working outdoors (high confidence). In
urban areas climate change is projected to increase risks for people, assets, economies and
ecosystems, including risks from heat stress, storms and extreme precipitation, inland and coastal flooding, landslides, air pollution, drought, water scarcity, sea level rise and storm surges (very high confidence). These risks are amplified for those lacking essential infrastructure and services or living in exposed areas.
17 Climate change is projected to increase displacement of people (medium evidence, high agreement). Populations that lack the resources for planned migration experience higher exposure to extreme weather events, particularly in developing countries with low income. Climate change can indirectly increase risks of violent conflicts by amplifying the drivers of these conflicts such as poverty and economic shocks (medium confidence).
18 Affidavit of Professor Frame (14 April 2016) at [27].
[15] One of the areas of uncertainty concerns the extent to which ice sheet loss will contribute to sea level rise. Professor Renwick, for example, comments:19
Sustained mass loss by ice sheets would cause larger sea level rise, and some part of the mass loss might be irreversible. There is high confidence that sustained warming greater than some threshold would lead to the near- complete loss of the Greenland ice sheet over a millennium or more, causing a global mean sea level rise of up to 7m. Current estimates indicate that the threshold is greater than about 1ºC (low confidence) but less than about 4ºC (medium confidence) global mean warming with respect to pre-industrial. Abrupt and irreversible ice loss from a potential instability of marine-based sectors of the Antarctic ice sheet in response to climate forcing is possible, but current evidence and understanding is insufficient to make a quantitative assessment.
[16] Professor Hansen also provides details about this and concludes:20
… humanity faces “near certainty of eventual sea level rise of at least … 5-
9m if fossil fuel emissions continue on a business-as-usual course”. … Much
of the US eastern seaboard, as well as low-lying areas of Europe, the Indian sub-continent, and the Far East, would then be submerged. Parts of Wellington, Christchurch and other New Zealand coastal communities may be exceptionally vulnerable.
[17] Professor Frame notes that the long-term contribution of melting ice sheets to sea-level rise is a live area of scientific debate. He says this debate does not change the “first order scientific picture of the problem”.21 He comments that if sea-level rise is a greater threat than is currently thought it would not significantly affect the relationship between cumulative CO2 and global mean surface warming and therefore would have little bearing on what is required “to meet the current CO2 warming target.”22 He also says:23
Neither does this dispute change the first order political dimensions of the problem. The discovery that sea-level rise was a greater threat than we currently think may (perhaps) affect the incentives to mitigate for low-lying areas and countries, but it is unlikely to change the overall pattern of incentives the countries face.
19 Affidavit of Professor James Renwick (9 November 2015) at [16](1).
20 Affidavit of Professor Hansen (13 November 2015) at [17].
21 Affidavit of Professor Frame (14 April 2016) at [19].
22 At [19].
23 At [20].
[18] Professor Frame says that Governments which base their expectations on the IPCC reports are “acting in accordance with the bulk of evidence”.24 The New Zealand Government has approved the AR5. For the purposes of this proceeding it is appropriate to proceed on the basis of the AR5, as the plaintiff accepts, while recognising that there are respected scientific experts who regard it as conservative. Because of this it is not necessary that I consider an affidavit provided by Professor Hansen shortly before the hearing which provides details of recent research.25
The international framework
The Convention
[19] The United Nations Framework Convention on Climate Change (the Convention) was the first international agreement to represent a collective response to climate change. 26 It has been signed by 197 countries. New Zealand signed the Convention on 4 June 1992 and ratified it on 16 September 1993. It came into force on 21 March 1994.
[20] The preamble to the Convention:
(a) noted that the largest share of historical and current global emissions are from developed countries and developing countries share of global emissions will grow to meet their social and development needs;
(b)acknowledged the need for the widest possible cooperation by all countries, “in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions”;
(c) recognised that steps to address climate change will be most effective
if they are based on “relevant scientific, technical and economic
24 Affidavit of Professor Hansen (13 November 2015) at [17].
25 The defendant objected to its admissibility on the basis it had not had the opportunity to respond to it, the research at this stage is unpublished, and it is not reasonable, nor practicable, to expect the Government to review and amend its decisions in response to every new scientific paper.
26 Adopted at New York on 9 May 1992.
considerations and continually re-evaluated in the light of new
findings in these areas”; and
(d)recognised that “low lying and other small island countries”, amongst others, are “particularly vulnerable to the adverse effects of climate change”.
[21] The Convention’s ultimate objective is as follows:27
The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.
[22] To achieve this objective and to implement the provisions of the Convention sets out guiding principles as follows:
Article 3
Principles
In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall be guided, inter alia, by the following:
1.The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.
2.The specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration.
3.The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-
27 Article 2.
effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties.
4.The Parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each Party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.
5.The Parties should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties, particularly developing country Parties, thus enabling them better to address the problems of climate change. Measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.
[23] Article 4 sets out the Parties’ commitments under the Convention. This
includes the following:
1.All parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall:
(a) Develop, periodically update, publish and make available … national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases …;
(b) Formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions …;
(c) Promote and cooperate in the development, application and diffusion, including transfer, of technologies, practises and processes that control, reduce or prevent … emissions … in all relevant sectors …;
…
[24] The Convention also sets out commitments that apply specifically to developed countries (which includes New Zealand). These require each developed country to:
(a) adopt national policies and take measures to mitigate climate change by limiting emissions and enhancing emissions sinks and reservoirs, and these policies and measures are to “demonstrate that developed countries are taking the lead in modifying longer-term trends in anthropogenic emissions consistent with the objective of the Convention …”;28
(b)communicate periodically detailed information on its policies and measures, its resulting projected emissions by sources and removal by sinks “with the aim of returning individually or jointly to their 1990 levels” of emissions;29
(c) periodically review its own policies and practices which encourage activities that lead to greater levels of emissions;30
(d)provide financial resources to developing countries to meet their costs in complying with the Convention;31
(e) assist developing countries that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaption to those adverse effects;32
(f) assist with environmentally sound technology transfer;33 and
(g)give “full consideration” to the actions necessary “to meet the specific needs and concerns of developing [countries] arising from the adverse effects of climate change and/or the impact of the implementation of response measures”, especially the needs of, amongst others, small
island countries and countries with low-lying coastal areas.34
28 Article 4(2)(a).
29 Article 4(2)(b).
30 Article 4(2)(e).
31 Article 4(3).
32 Article 4(4).
[25] The Convention established a Conference of the Parties (COP).35 All parties to the Convention are represented at the COP. The COP is the supreme decision making body of the Convention.36 Its purpose is to review the implementation of the Convention. The COP meets every year unless the parties decide otherwise. Parties are required to report to the COP their national inventory and a description of the steps being taken or envisaged by the party to implement the Convention.37
Developed countries are to include a detailed description of their policies and measures.38
The Kyoto Protocol
[26] The Kyoto Protocol39 was adopted at the third meeting of the COP (COP 3) at Kyoto on 11 December 1997. It was entered into “in pursuit of the ultimate objective of the Convention”.40 Of the 197 parties to the Convention, 192 signed the Protocol. New Zealand signed the Protocol on 22 May 1990 and ratified it on 19
December 2002. It came into force on 16 February 2005.
[27] The Kyoto Protocol tasks the IPCC with, among other things, setting methodologies for estimating the amount of emissions and removals for each country.41
[28] Developed countries are to set internationally binding emissions reduction targets, which they are to meet primarily through national measures, for certain commitment periods. The target emissions reductions were set from a base year (for most parties, 1990). The first commitment period was 2008-2012. For this period New Zealand’s target was to return to 1990 emissions levels. New Zealand met this commitment through a combination of domestic emissions reductions, carbon
removal by forests and international carbon trading.
35 Article 7.
36 Article 7(2).
37 Article 12.
38 Article 12.
39 Kyoto Protocol to the Convention.
[29] The supreme decision making body of the Kyoto Protocol is the COP serving as the Meeting of the Parties to the Kyoto Protocol (CMP). The CMP takes place at the same Convention session as the COP. At COP 18 (CMP 8) in Doha (November
2012), the CMP agreed on an amendment to the Kyoto Protocol to establish targets for the second period from 2013-2020. New Zealand did not ratify this amendment immediately.42 Since 2010 New Zealand already had a conditional target of 10-20 per cent below 1990 levels by 2020 in place.43 After COP 18 New Zealand set a non-conditional target of 5 per cent below 1990 levels by 2020 under the Convention.44 Kay Harrison, the Director of Climate Change at the Ministry for the Environment, says New Zealand is on track to meet this target.
[30] Most developed countries met their target for the first commitment period. There was, however, criticism that the Kyoto Protocol was not an effective framework to combat global emissions. This was because it was not a global response. It excluded developing countries and not all developed countries participated. The countries with targets under the second commitment period made up only 11 per cent of global emissions. Dr Frame’s evidence is that this was because the Kyoto Protocol prioritised stringency (through internationally binding commitments) over participation, whereas the broadest participation is necessary in order to be effective.
The path to Paris
[31] The Paris Agreement was adopted on 12 December 2015. It is intended to be a global response to climate change. The steps leading to the Paris Agreement were:
(a) COP 15 Copenhagen (December 2009): the Copenhagen Accord provided for non-binding explicit emissions pledges to be made by all major economies. The key aspects of the Accord were an aspirational limit of keeping global temperatures to below 2ºC above pre-
industrial levels; a process for countries to submit their specific
42 On 30 November 2015 New Zealand accepted this amendment to the Kyoto Protocol.
43 The conditional target was set on 31 January 2010 when New Zealand indicated it would like to be associated with the Copenhagen Accord.
44 The unconditional target was adopted when Minister Groser advised this to the Convention on
29 August 2013. Cabinet agreed to this target on 16 August 2013.
mitigation pledges by January 2010; broad terms for reporting and verifying countries’ actions; and a collective commitment from developed countries to help developing countries to reduce emissions.
(b)COP 16 Cancun (November 2010): the Parties, amongst other things, committed to a maximum temperature rise of 2ºC above pre-industrial levels, and to review the adequacy of this target and consider lowering it to 1.5ºC in the future.45
(c) COP 17 Durban (December 2011): the Parties agreed to negotiate a global agreement applicable to all countries post-2020.
(d)COP 18 (CMP 8) Doha (November 2012): the Kyoto Protocol amendment to establish targets for the second commitment period (2013-2020) was adopted.
(e) COP 19 Warsaw (November 2013): in anticipation of securing a global climate change agreement, the Parties agreed to communicate their intended nationally determined contributions (INDCs). The Parties recognised that some countries are in a position to do more than others, and anticipated that further action would be required by all, with ambition ramping up over time. New requirements for monitoring, reporting and verification under the Convention, signalled in the Copenhagen Accord, were finalised.
(f) COP 20 Lima (December 2014): ground rules on how countries could submit their INDCs for the intended new agreement in the first quarter
of 2015 were agreed.
45 The AR5 records that estimated global emissions levels in 2020 based on the pledges made by Parties in Cancun are not consistent with cost-effective mitigation trajectories that are at least as likely as not to limit warming to below 2ºC relative to pre-industrial levels.
The Paris Agreement
[32] At COP 21 in Paris (December 2015) the parties to the Convention adopted a new post-2020 agreement (the Paris Agreement).46 New Zealand signed the Agreement on 22 April 2016 and ratified it on 4 October 2016.47 It came into force on 4 November 2016.
[33] The preamble of the Paris Agreement states:
In pursuit of the objective of the Convention, and being guided by its principles, including the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances,
Recognizing the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge,
Also recognizing the specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, as provided for in the Convention,
Taking full account of the specific needs and special situations of the least developed countries with regard to funding and transfer of technology,
Recognizing that Parties may be affected not only by climate change, but also by the impacts of the measures taken in response to it,
Emphasizing the intrinsic relationship that climate change actions, responses and impacts have with equitable access to sustainable development and eradication of poverty,
Recognizing the fundamental priority of safeguarding food security and ending hunger, and the particular vulnerabilities of food production systems to the adverse impacts of climate change,
Taking into account the imperatives of a just transition of the workforce and the creation of decent work and quality jobs in accordance with nationally defined development priorities,
46 Adopted on 12 December 2015.
47 On 6 April 2016 Cabinet approved the text of the Paris Agreement, considered a draft National Interest Analysis (NIA) and noted key obligations under the Agreement. New Zealand wanted to sign the Agreement at this point because: the NDCs sat separately to the international obligations
which gave the government comfort that it would be able to ratify the Agreement in due course;
the majority of countries (including China, the United States, Australia, other G20 countries and other Pacific Island countries) were expected to sign in New York; the UN Secretary General was calling on all 196 parties to the Convention (at the time, now 197 parties) to do so; signi ng would maintain our standard internationally by joining the critical mass of signatories; and New Zealand wanted to ensure political momentum was sustained.
Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity,
Recognizing the importance of the conservation and enhancement, as appropriate, of sinks and reservoirs of the greenhouse gases referred to in the Convention,
Noting the importance of ensuring the integrity of all ecosystems, including oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth, and noting the importance for some of the concept of "climate justice", when taking action to address climate change,
Affirming the importance of education, training, public awareness, public participation, public access to information and cooperation at all levels on the matters addressed in this Agreement,
Recognizing the importance of the engagements of all levels of government and various actors, in accordance with respective national legislations of Parties, in addressing climate change,
Also recognizing that sustainable lifestyles and sustainable patterns of consumption and production, with developed country Parties taking the lead, play an important role in addressing climate change,
[34] The objective of the Paris Agreement is to enhance the implementation of the
Convention. Article 2 states:
1.This Agreement, in enhancing the implementation of the Convention including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:
(a) Holding the increase in the global average temperature well below 2ºC above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5ºC above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;
(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and
(c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.
2.This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.
[35] The Paris Agreement reaffirms the goal of keeping average global warming below 2ºC above pre-industrial levels, and pursuing efforts to limit warming to
1.5ºC. It requires each country to put forward their own Nationally Determined Contribution (NDC) and to pursue “domestic mitigation measures, with the aim of achieving the objectives of such contributions”.48 Countries may choose to cooperate with one another, including by using internationally transferred mitigation outcomes towards their NDCs.49
[36] A country’s NDC is to be updated every five years.50 Each successive NDC is to represent a progression and is to be the country’s “highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”.51 Developed countries “should continue to take the lead by undertaking economy-wide absolute emission targets”.52
[37] The Paris Agreement also requires all parties to report regularly on their emissions and efforts, and undergo international expert review and multilateral consideration. There are also provisions concerning financial assistance to developing countries, technology transfer and development and education and training. It also includes mechanisms which will guide the development of future targets.
[38] The understanding is that global efforts together will keep warming below the
2ºC level. However contributions are to be nationally determined. There is no requirement for countries to adopt a target that if adopted by all would achieve this goal. Nor is there a requirement that any country adopt the target level of any other
country. Nor is a country’s NDC binding at international law. The Paris Agreement
48 Article 4(2).
49 Article 6.
50 Article 4(9).
51 Article 4(3). See also, art 4(11) providing that a country “may at any time adjust its existing [NDC] with a view to enhancing its level of ambition” and art 3 which provides for parties to “undertake and communicate ambitious efforts”.
52 Article 4(4).
is therefore more flexible than the Kyoto Protocol. This greater flexibility enabled greater agreement. There are now 197 countries that have agreed to the Paris Agreement.
[39] New Zealand’s NDC applies from 2021. The NDC sets a 2030 target and covers the period 2021-2030. Other obligations (e.g. reporting) are expected to take effect from 2020.
Further developments in international negotiation
[40] Negotiations did not end with the Paris Agreement. Details of the Agreement and how it will operate still need to be elaborated. In 2018 there will be a facilitative dialogue amongst the Parties to assess collective, rather than individual, progress towards the long term temperature goal set out in art 2. Additionally, a special IPCC report will be issued on the feasibility of limiting the global temperature increase to
1.5ºC. Parties will be invited to consider the outcomes of this dialogue as they prepare to communicate or update their NDCs by 2020.
[41] In 2020, Parties whose contributions run to 2025 will table their contributions for 2026-2030, and parties with 2030 contributions will review their existing contributions. At that point New Zealand will have the choice to restate its NDC or present a new one.
[42] The durability and ultimate effectiveness of the Agreement is intended to be achieved by five yearly global stocktakes. At these stocktakes collective progress towards the Agreement’s goals is assessed based on whether the mitigation, adaption and finance undertakings which have been made have been implemented. Parties are expected to take into consideration the outcomes of the stocktakes when reviewing their NDCs. The first global stocktake is scheduled for 2023.
New Zealand domestic legislation
[43] The purpose of the Climate Change Response Act 2002 is to:53
53 Section 3.
(a) enable New Zealand to meet its obligations under the Convention, the
Kyoto Protocol and any binding amendments to them (Purpose one);
(b)provide for a greenhouse emissions trading scheme (ETS) in New Zealand to support and encourage global efforts to reduce greenhouse gas emissions (Purpose two); and
(c) provide for levies on greenhouse gases from motor vehicles and other goods to support and encourage global efforts to reduce greenhouse gas emissions (Purpose three).
[44] The Act has undergone a number of amendments since it was first enacted. Purpose one was included from the outset. As first enacted, the Act contained provisions for the setting up of a registry to ensure New Zealand could comply with its target and accurately report under the Kyoto Protocol. Some of these provisions did not come into force until 19 November 2007.54 Purpose two was added as part of amendments made on 26 September 2008.55 These amendments introduced the New Zealand ETS in Part 4.56 They also introduced Part 6 which concerns the setting of targets. Purpose three was added as part of amendments made on 1
January 2013.57 These amendments added Part 7 which enabled the imposition of a levy on motor vehicles and other goods.
[45] For present purposes Part 6, which concerns targets, is of most relevance. Initially (that is as at 26 September 2008) the power to set targets was set out in s
224 which provides:
54 Climate Change Response Commencement Order 2007, s2. The parts that came into force in
2007 were Part 2, subpart 1 (setting out the Minister of Finance’s powers to carry out trading activities if necessary to ensure compliance powers) and subpart 2 (providing a registry to track units). The sections that were in force between 2002 and 2007 provided for an inventory agency to enable reporting, and included a compliance section relating to collecting information to estimate emissions and removals of greenhouse gases.
55 Climate Change Response (Emissions Trading) Amendment Act 2008.
56 Ms Harrison describes the ETS as New Zealand’s “primary response to global climate change”
in her affidavit dated 14 April 2016 at [38]. It puts a price on greenhouse emissions in order to provide a financial incentive to reduce them. It also incentivises investment in energy efficiency and the planting of trees. Under the scheme units are traded. One unit is equivalent to one tonne
of CO2 equivalent emissions. Certain sectors are required to acquire and surrender units to account for their emissions.
57 Climate Change Response (Emissions Trading and Other Matters) Amendment Act 2012.
224 Gazetting of targets
(1) The Minister must set a target.
(2) The Minister responsible for the administration of the Act may set a target, or amend or revoke an existing target, at any time.
(2A) Before the Minister sets, amends, or revokes a target, the Minister must consult, or be satisfied that the chief executive has consulted, persons (or their representatives) that appear to the Minister or the chief executive likely to have an interest in the target.
(3) As soon as practicable after setting, amending, or revoking a target under this section, the Minister must—
(a) publicly notify the target or revocation of the target in the
Gazette; and
(b) make the target or revocation of the target publicly accessible via the Internet site of the department of the chief executive.
(4) To avoid doubt, a Gazette notice under this section is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.
(5) To avoid doubt, any number of targets may be set using the process under this section.
[46] A second provision, s 225, which also enabled the setting of targets, was introduced on 8 December 2009.58 The consultation requirement in s 224(2A) was also added at this time.59 Section 225 provides:
225 Regulations relating to targets
(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations setting a target.
(2) Before recommending the making of an Order in Council under subsection (1), the Minister must consult, or be satisfied that the chief executive has consulted, persons (or their representatives) that appear to the Minister or the chief executive likely to have an interest in the order.
(3) The Minister—
58 Climate change Response (Moderated Emissions Trading) Amendment Act 2009. A minor change was also made to s 225 in 2011. It is not relevant for present purposes.
59 Minor stylistic amendments were also made to s 224 in 2011 and 2013. These are not of any consequence for present purposes.
(a) must review the target following publication of any Intergovernmental Panel on Climate Change Assessment Report or report of a successor agency; and
(b) may at any time recommend to the Governor-General the setting of a target, or amendment or revocation of a target, having regard to the following matters:
(i) any Intergovernmental Panel on Climate Change
Assessment Report or report of a successor agency: (ii) any other matters the Minister considers relevant.
(4) To avoid doubt, any number of targets may be set using the process under this section.
[47] The 2050 target was set under s 224.
New Zealand’s targets in more detail
[48] Since ratifying the Convention, in addition to the first commitment period under the Kyoto Protocol (2008-2012), New Zealand has committed to a number of
targets as follows:
Name Target Date of adoption Instrument 2050 target 50 per cent reduction in greenhouse gas emissions by
2050 (using 1990 as a baseline
year) (50 by 50)
Gazetted in the 31 March
2011 New Zealand
Gazette.Climate Change Response Act 2002, s 224. 2020 target 5 per cent reduction in greenhouse gas emissions by
2020 (using 1990 as a baseline year) (5 by 20)
[Replacing the conditional
2020 target of 10 to 20 per cent below 1990 levels made on 31
January 2010]
On 29 August 2013 Mr Groser sent a letter to the UNFCCC advising New Zealand had adopted this target. Target intended to cover the second commitment period under the Kyoto Protocol (from 2013-
2020).
2030 target 30 per cent reduction in greenhouse gas emissions by
2030 (using 2005 as a baseline year) (30 by 30)
On 7 July 2015 this target was tabled with the UNFCCC as New Zealand’s INDC. On 4
October 2016 this target was tabled with the
UNFCCC as New
Zealand’s NDC.
Communicated as part of the Paris Agreement.
The 2050 target
[49] The affidavit evidence provides little detail about the background to the 2050 target. The AR4, the IPCC report published in 2007, the year prior to the 2008
amendments to the Climate Change Response Act, refers to the year 2050 in a number of places and used 2050 in its calculations on stabilisation scenarios.60 At this time a 2050 target seems to have been part of international discussions. For instance at COP 13 Bali (2007) the United States and Australia referred to global reductions by 2050 and the statement by the Executive Secretary stated emissions needed to decrease by 50 per cent by 2050.61
[50] As noted, the 2050 target was made pursuant to s 224 of the Climate Change Response Act. The 26 September 2008 amendments which introduced this section were made in the lead up to the 2008 General Election. At this time the Labour led Government and the National party opposition had differing views about the appropriate target. The then Prime Minister, the Rt Hon Helen Clark, had earlier announced an aspirational goal of becoming carbon neutral. Targets relating to the electricity sector (90 per cent renewable by 2025) and transport sector (50 per cent reduction in emissions by 2040) amongst other things had been announced.62 At the second reading of the amendment Bill,63 Dr Smith, a National Member of Parliament said:64
National has outlined six principal areas where we think this bill is deficient. First, it is not balanced. The bill reflects the idealistic, carbon-neutral mantra of the Prime Minister. The bill should reflect National’s more modest goal of a 50 percent reduction in emissions by 2050, which would be in line with the goals of our major trading partners. The Government needs to be honest: if New Zealand is to be a world leader in reducing emissions, and is going to be carbon neutral under an emissions trading scheme, it will mean world- leading costs for consumers. I do not think that is something New Zealanders will bear.
60 It was recognised at COP 13 in Bali that AR4 requires global emissions of greenhouse gases to peak within five to 10 years (at 2007) and be reduced to very low levels (below half of 2000 levels by 2050) Draft Decision/CP13 COP 13 Bali, FCCC/CP/2007/CRP.1 (13 December 2007).
61 Report of the Conference of the Parties on its thirteenth session held in Bali from 3 to 5
December 2007: Part One Proceedings FCCC/CP/2007/6 (14 March 2008).
62 David Parker, Minister for Climate Change Issues at the time, “A New Zealand Emissions Trading Scheme” (Banquet Hall, Parliament Buildings, Wellington, 20 September 2007); David Parker “Carbon Neutral Electricity by 2025” (Carbon Neutral Electricity in New Zealand Symposium, 21 February 2008); and David Parker “Energy Strategy Delivers Sustainable Energy System” (Launch of NZ Energy Strategy, Grand Hall, Parliament Buildings, Wellington,
11 October 2007).
63 Climate Change Response (Emissions Trading) Amendment Bill (187-2).
64 (28 August 2008) 349 NZPD 18079. See also at 18095-96 per the Hon Chris Tremain (National Party MP). At the final reading the legislation was passed with Labour (49), NZ First (7), Green (6), and Progressive (1) voting in its favour and National (47), the Māori Party (4), United Future (2) and Act (2) voting against it.
[51] Following the General Election on 8 November 2008, a National led
Government was formed. It remained the Government when the 2050, 2020 and
2030 targets were set.
[52] Work on the 2050 target began in 2009. Public consultation took place between 29 January 2011 and 28 February 2011. The purpose of the 2050 target can be found in the Minister’s Position Paper dated January 2011, provided to the public as part of the consultation process, which is referred to in an affidavit from Ms Harrison.65 This paper states:
The Government is committed to implementing an economically sound and environmentally effective climate change policy. A part of this will be a credible long-term emissions reduction target. To provide certainty for business over the long-term direction of climate change policy, the Government proposes to notify in the New Zealand Gazette a long-term emissions reduction target for New Zealand.
…
A 50 per cent reduction … is a realistic time-bound target for New Zealand. This gives taxpayers, business, industries and farmers clear, long-term certainty about where domestic climate change policy is headed so that they can plan and invest accordingly.
[53] This paper included a comparison of New Zealand’s proposed 2050 target
with that of other developed countries as follows:
Country Percentage of world emissions: 2007 Emissions change:
1990-2007
2050 target (adjusted to 1990 base year for ease of comparison, approximate only) New Zealand 0.2% ↑ 22.1% Reduce greenhouse gases by 50%
below 1990 levels.
Australia 1.4% ↑ 30.0% Reduce emissions to 50% below
1990 levels.
Canada 1.9% ↑ 26.2% A reduction of about 50-65% on
1990 levels.
EU-27 13.0% ↓ 9.3% Considering reducing emissions to
80% below 1990 levels by 2050.
Japan 3.5% ↑ 8.2% Reduce emissions to 55-80% below
1990 levels.
USA 18.3% ↑ 16.8% Reduce emissions to about 80%
below 1990 levels.
65 Affidavit of Kay Harrison (14 April 2016) at [41]. Ms Harrison has been involved in climate change for the Ministry since January 2009, apart from a period in 2012 and 2013.
[54] Ms Harrison also explained in her affidavit that following the submission process and two briefing papers to the then Minister for Climate Change Issues, the Hon Nick Smith, the 2050 target was issued in the 31 March 2011 Gazette.
The 2020 target
[55] The next target related to the second commitment period under the Kyoto Protocol (2013-2020). Following the Copenhagen Accord, on 31 January 2010 New Zealand tabled a conditional target of 10-20 per cent below 1990 by 2020.66 This target was conditional on an effective global agreement being reached. By 2013 this had not eventuated. New Zealand therefore considered an unconditional target pending international consensus on a new agreement to apply to all Parties. In August 2013 a Cabinet paper sought Cabinet approval of an unconditional target of five per cent below 1990 by 2020. Cabinet agreed to this. On 29 August 2013, Mr Groser notified this target under the Convention.
The 2030 target
[56] As countries were working towards reaching consensus at Paris, they were asked to announce a national target to reduce greenhouse gas emissions after 2020 (their INDC).67 Countries were free to choose the baseline year from which they would measure emissions reductions. Those whose emissions peaked around 1990, for example the European Union and Belarus, tended to choose 1990.68 Countries whose emissions peaked later, such as the United States, Canada, Australia, and Japan, tended to choose 2005. New Zealand also chose 2005.69
[57] As Mr Groser says in his affidavit, setting New Zealand’s INDC was a
“substantial policy process” which took place in 2014 and 2015 during which he
66 It appears from the Minister’s Position Paper concerning the 2050 target that this was first announced in August 2009.
67 Parties were invited to table their INDC for 2020 by 2015 at COP 19 in Warsaw in December
2013.
68 Professor Frame notes that circumstances in the late 1980s and early 1990 (such as the reunification of Germany, the switch in the United Kingdom from coal to gas and the gradual
decline in production from North Sea hydrocarbons) has meant that EU countries achieved large reductions in emissions prior to the establishment of climate change policy.
69 Affidavit of Professor Frame (14 April 2016) at [49] and [50]. Professor Frame at [51] goes on to say that there is nothing special about choosing any particular year. The climate system responds to cumulative emissions across centennial timelines.
received “numerous briefings on that process and advice on the possible form and level of the INDC”.70 The evidence bears this out. The table below sets out the
process:
6 November 2014 Mr Groser received a Ministry memo attaching papers which elaborated on
and analysed options for New Zealand’s contribution under the new climate
change agreement (originally presented 15 September 2014).
19 November
2014
Mr Groser received a Ministry briefing note setting out options for target
form.
December 2014 COP 20 held in Lima. Parties agreed on ground rules for how countries
could submit their INDCs for the new global agreement.
December 2014 –
January 2014
Mr Groser met with Ministry officials and discussed pathways to tabling
New Zealand’s INDC.
12 March 2015 Mr Groser received a Ministry briefing note seeking his decision on hui and
public meetings to be held as part of the public consultation on the INDC.
25 March 2015 Mr Groser received a Ministry briefing note with various papers (including
a draft discussion document) on the INDC in advance of his discussions with his Cabinet colleagues.
30 March 2015 Cabinet Strategy Committee meeting. Recommendation made to reduce
greenhouse gas emissions by 10 per cent below 1990 levels by 2030.
7 April 2015 Mr Groser received a Ministry briefing note seeking approval to publicly
consult on New Zealand’s INDC and attaching draft discussion document.
9 April 2015 Cabinet Business Committee paper seeking agreement on consultation for
New Zealand’s post-2020 climate change contribution.
13 April 2015 Cabinet Business Committee Meeting. Mr Groser was invited to give
further consideration to the consultation paper and submit a revised paper.
4 May 2015 Cabinet agreed to Mr Groser finalising the discussion document and
undertaking public consultation on New Zealand’s INDC.
7 May – 3 June
2015
The Ministry for the Environment conducted public consultation on New
Zealand’s INDC. Around 1,700 people attended the 15 public meetings and
hui. 17,000 submissions were received.15 June 2015 Mr Groser received a Ministry briefing note advising an appropriate target
would be in the range of reducing greenhouse gas emissions by 29 to 37 per cent from 2005 levels (equivalent to 19 to 20 per cent from 1990 levels) by
2030.
17 June 2015 Mr Groser provided a paper to the Cabinet Economic Growth and
Infrastructure Committee (CEGI Committee) attaching the draft INDC.
24 June 2015 CEGI Committee considered the proposed target of reducing greenhouse
gas emissions by 29 per cent from 2005 levels (equivalent to 10 per cent from 1990 levels) by 2030 and agreed to table a draft INDC
6 July 2015 Cabinet approved a slightly higher target of 30 per cent below 2005 levels
by 2030 as New Zealand’s INDC.
7 July 2015 Mr Groser approved and publicly announced New Zealand’s INDC
(reduction in emissions by 30 per cent from 2005 by 2030). New Zealand tabled its INDC under the Convention.
12 December
2015
COP 21 held in Paris. Parties agree to adopt the Paris Agreement. 5 April 2016 Paper presented by the Minister (Hon Paula Bennett) to the CEGI
Committee setting out the key aspects of the Paris Agreement and seeking approval for its signature.
6 April 2016 Cabinet approved the text of the Pairs Agreement, considered the draft NIA
and noted the key obligations under the Agreement.
22 April 2016 Ms Bennett signed the Paris Agreement on behalf of New Zealand. She
also endorsed a high level statement on promoting the early entry into force of the Paris Agreement.
July 2016 Paper presented by Ms Bennett to the CEGI Committee considering
ratification of the Paris Agreement.
11 July 2016 Cabinet Business Committee directed officials to begin work to enable New
Zealand to ratify the Paris Agreement by the end of 2016.
10 August 2016 Paper presented by Ms Bennett to the CEGI Committee seeking approval to
begin the Parliamentary Treaty Examination Process for the Paris
Agreement.
17 August 2016 Paris Agreement referred to the Foreign Affairs, Defence and Trade
Committee.
October 2016 Cabinet agreed that New Zealand would adopt its INDC as its NDC (30 per
cent below 1990 levels by 2030). It also agreed to present the Paris
Agreement and NIA to the House of Representatives for examination.
70 Affidavit of Timothy Groser (14 April 2016) at [31].
4October 2016 New Zealand communicates its instrument for ratification and NDC target to the UN.
[58] Mr Groser explains the background to deciding upon New Zealand’s INDC. New Zealand’s greenhouse gas emissions as at 2013 were as follows:
[59] Mr Groser says this particular emissions profile means the relative cost of abating emissions is high. He gives two reasons for this:
(a) First, in contrast with many other countries, by 1990 New Zealand’s energy generation was largely renewable. This means that one of the cheaper and easier ways to reduce emissions was not available to New Zealand.
(b) Secondly, half of our greenhouse gas emissions are from livestock.71
From a New Zealand perspective Mr Groser considered it was important to set emissions targets that did not undermine a significant sector of the economy and which allowed New Zealand to maintain efficient food production.
[60] Mr Groser says:72
71 New Zealand emitted 17.2 tonnes of CO2 equivalent per person in 2012. If the figures are for emissions of CO2 only, New Zealand emits 8.3 tonnes per person per annum. Our per person emissions of all greenhouse gases are higher than those to the United Kingdom at 9.2 tonnes per person but lower than Australia and the United States (24.0 and 20.4 tonnes per person, respectively).
72 Minister Groser goes on to explain specific aspects of the process and matters considered. These
are discussed in relation to the plaintiff ’s second and third causes of action below.
32.In recommending an INDC to Cabinet, I considered a range of factors. It was important that in order to play our part internationally, our INDC be fair and ambitious and was seen as such domestically and internationally. It was also important that the costs, financial and otherwise, of meeting the reduction could be managed and the target would assist New Zealand in the transition to a low emissions world that we will have to engage in, including by sending appropriate signals to the various sectors of our domestic economy. These principles flowed explicitly from the mandate we received from successive General Elections where we made it clear that if New Zealanders supported us in the ballot box we would not elevate climate change as the sole driver of policy, but one important factor to be taken into account in a balanced approach to both economic and environmental objectives. This is the plain meaning of the phrase ‘doing our fair share’ and it was my responsibility as a Minster to convert a high level but very clear political statement of intent to the New Zealand electorate in our Manifestos into operational terms.
33.It was also necessary for the INDC to represent a progression from the earlier target of five percent below 1990 levels as required by the [Convention].
[61] A review of the briefing papers referred to in the above table, confirms that the key objectives were to set a target that was domestically and internationally credible, appropriately managed costs and impacts to society, and guided New Zealand over the long-term in a global transition to a low-emissions world. The briefing papers also referred to the need for New Zealand to do its fair share, the need for developed countries to show progression on their current targets and that all countries will be called upon to make greater emissions over time.
[62] The briefing papers considered three forms which the New Zealand target might take: a whole economy target; a target for non-agricultural emissions with an intensity based approach for agriculture; or a target applying just to long lived gases and stabilisation of short-lived gases. Economic modelling on the costs associated with each of these approaches was undertaken. Economic modelling was also undertaken on the costs associated with a range of economy wide targets. For example, the Minister’s paper to the CEGI Committee dated 17 June 2015 included the following comparison:
Target reduction on Target reduction on Annual cost (reduction
1990 by 2030 2005 by 2030 in RGNDI in 2027)73
Current RGNDI $220b Projected 2027 RGNDI (business as usual) $299b -5% -25% $3.5b (1.18%) -10% -29% $3.7b (1.23%) -15% -33% $3.9b (1.32%) -20% -37% $4.1b (1.37%) -40% -53% $5.0b (1.66%)
[63] At the end of the process Mr Groser recommended to Cabinet a target of
10 per cent below 1990 levels by 2030 which equates to 29 per cent below 2005
levels by 2030. The Minister’s paper to the CEGI Committee dated 17 June 2015:
(a) Set out the background to the INDC. This began with the statement that “[t]ackling climate change is crucial to avoid economic costs and harm to people and the environment”.
(b) Discussed the reasons why an economy wide target was preferable.
This included that it would help maintain pressure on the agricultural sector to invest in agricultural emissions reduction research and help keep New Zealand at the forefront of this work.
(c) Compared other countries INDCs and noted New Zealand’s challenges in reducing emissions meant that it could justify making relatively smaller emissions reductions than other developed countries.74
(d)Discussed the estimated costs of delivering the targets and provided the table set out above from the briefing paper.
(e) Summarised the submissions received during consultation. This included that there was a “strong call for an ambitious target and
leadership from the Government”, with the most common target
73 RCNDI is Real Gross National Disposable Income which is a measure of the size of the economy based on GDP but which gives better accounts for the cost of purchasing international units.
74 A rough indication was that a New Zealand target of +10 per cent above 1990 levels would cost about the same as the EU target of -40 per cent on 1990 by 2030. A target costing the same as the US’ target (of -26 per cent to -28 per cent on 2005 by 2025) would be roughly a New Zealand target or +5 per cent to -10 per cent on 1990 levels.
suggested by stakeholders being 40 per cent below 1990 levels or a zero carbon target by 2050. It also included that there was a “strong concern” the estimated costs were “overly conservative and excluded possible benefits of acting and the costs of inaction.”
(f) Noted that the Ministry of Foreign Affairs and Trade (MFAT) strongly supported the proposal, the Ministry for Primary Industries supported the proposal, and Treasury did not support it.
[64] As to the target level, the paper said:
57.The extra cost of marginally deeper targets (e.g. -10% vs -5%) is relatively small.FN On the other hand, New Zealand’s costs are still at the high-end of those faced by developed countries.
58.Strong calls were received for an ambitious target from a large number of submitters during consultation. The response from business and agriculture stakeholders was more mixed. Some business stakeholders suggested an ambitious target; others including Business New Zealand suggested a more cautious approach to ensure the target is realistic and achievable and manages costs.
59.Calls for a highly ambitious target need to be balanced against the real economic costs which a target imposes across the population, regardless of their stance on climate change and I believe my recommended target achieves this.
60.The target level I propose … signals a steady long-term trajectory to the economy.
61.I recommend expressing the target as a reduction relative to 2005 levels. This makes the target more clearly comparable with others (the US and Canada) and reduces the apparent disparity between New Zealand’s target and the EU’s.
FN This is firstly because of the substantial growth in New Zealand’s emissions since 1990, which means the bulk of effort is to bring emissions back to 1990 levels. In addition, within the modelling setup used, around half the cost is borne regardless of New Zealand’s target level. This cost arises from the projected slowdown in economic growth due to a global carbon price ...
[65] Cabinet, at a meeting on 6 July 2015, decided on the slightly higher target of
30 per cent from 2005 levels (equating to 11 per cent from 1990 levels). In accordance with Cabinet’s decision Mr Groser announced this as New Zealand’s INDC on 7 July 2015. This was provisional pending ratification of the upcoming
Paris Agreement. The INDC was tabled under the Convention the same day. This set out our national circumstances, New Zealand’s commitment to doing its fair share and matters demonstrating its ambition.
[66] The process following Paris is discussed in an affidavit from Joanne Tyndall, Acting New Zealand Climate Change Ambassador employed by MFAT.75 Cabinet approved the Paris Agreement on 6 April 2016, after considering a paper from the Minister to the CEGI Committee dated 5 April 2016 which set out the key aspects of the agreement. This included that its purpose was to hold the global average temperature increase well below 2ºC, to pursue efforts to limit the temperature to
1.5ºC and that developed countries were expected to take the lead. At this time the Minister expected ratification of the Paris Agreement to occur by the end of 2018 at the latest. Cabinet considered this time was necessary because there were uncertainties to be resolved around the accounting rules for emissions and removals by forests and other land uses, and for carbon markets.
[67] However by the time of the signing ceremony in New York on 22 April 2016, it became clear there was political momentum towards early ratification. On 4
October 2016 New Zealand ratified the Paris Agreement recognising this would show its commitment to climate change, provide greater certainty that New Zealand could protect its interests in negotiations on important Paris Agreement matters, and further our internationally communicated intentions to promote the early entry into force of the Paris Agreement.
[68] Alongside ratifying the Paris Agreement, New Zealand needed to finalise and communicate its NDC. Ms Tyndall explains that the INDC had been set after the extensive process discussed above. Absent any compelling new development the expectation was always that the INDC would become New Zealand’s NDC. As, however, New Zealand’s INDC was tabled on an explicitly provisional basis, Cabinet had to consider whether it was comfortable confirming the INDC as its NDC. The Hon Paula Bennett, the then Minister for Climate Change Issues, set out
in a paper to the CEGI Committee why she was comfortable in doing so.
75 Ms Tyndall was not involved in the process of ratifying the Paris Agreement but was involved in preparing the INDC and is familiar with the ratification process.
[69] Ms Tyndall says New Zealand’s approach was consistent with the Paris Agreement (which explicitly creates the assumption that each country’s INDC will become its NDC unless the country notifies otherwise when it deposits the instrument of ratification). She also says this is consistent with the approach of other countries. She is not aware of any country, out of the 147 countries that had ratified the Agreement at the time of her affidavit, that have submitted an NDC which is different from their INDC.76
How does New Zealand intend to meet its target
[70] New Zealand’s INDC, which is now its NDC, states:
[134] This approach is consistent with the view that justiciability concerns depend on the ground for review rather that its subject matter. The subject matter may make a review ground more difficult to establish, but it should not rule out any review by the Court.148 The importance of the matter for all and each of us warrants some scrutiny of the public power in addition to accountability through Parliament and the General Elections. If a ground of review requires the Court to weigh public policies that are more appropriately weighed by those elected by the community it may be
necessary for the Court to defer to the elected officials on constitutional grounds, and
147 Massachusetts, above n 106, was a judicial review of inaction under a domestic statute; Juliana, above n 115, was a novel constitutional challenge (for the infringement of life and liberty) and violation of a public trust claim; Friends of the Earth, above n 121, was a claim under a domestic statute; ClientEarth, above n 124, was a claim for breach of European Union Law; and Urgenda, above n 133, was a tort claim arising in a jurisdiction which has differences in its civil and constitutional law from New Zealand. As to the latter, the defendant refers to Matthew Soar “Would the Urgenda case fly in New Zealand?” (1 October 2015) Deconstructing Paris: Analysing the COP 21 Draft Text < in support of these differences.
148 See for example Finn above n 99.
because the Court may not be well placed to undertake that weighing.149 I proceed to consider the particular grounds advanced in light of these considerations.
Business as usual
[135] In setting the INDC the Minister obtained extensive economic modelling of the costs of reducing emissions from Infometrics Ltd, Landcare Research and the New Zealand Institute of Economic Research.150 That economic modelling used a “business as usual” scenario. That is, it simulated a future in which no action on climate change is taken against which alternate possible futures are compared. It also assumed the economy would continue to grow at its current rate.
[136] Ms Harrison explained the reason for this in her affidavit. She says this approach to modelling was taken because, if New Zealand did nothing and the world did nothing, the cost would be exactly the same as if New Zealand made significant effort and the rest of the world did nothing. Ms Harrison also says, while New Zealand can be confident that the costs of climate change will be significant, the actual social, cultural and environmental impacts are “extremely uncertain and not able to be quantified or projected with any level of confidence”.
[137] The plaintiff contends the Minister was required to incorporate in its modelling the costs to New Zealand of dealing with dangerous climate change when making the INDC and NDC decisions. She says the information to incorporate those costs was available to the Minister from the work of multiple national governments and the Convention Secretariat. She says it was necessary for the Minister to incorporate these costs because the Convention requires developed countries to take the lead. Similarly the Paris Agreement requires Parties to put forward their fair and ambitious contributions to limiting climate change and repeats the need for developed countries to take the lead.
[138] I am not convinced by Ms Harrison’s evidence that the costs of dealing with dangerous levels of emissions should not be modelled because of the difficulty and
uncertainty in doing so. Economists are skilled at assessing cost parameters
149 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 546.
150 NZIER provided quality assurance of the modelling undertaken by Infometrics and Landcare.
incorporating uncertainties. The consultation responses included submissions that the modelling should take account of the costs of dealing with dangerous climate change. Additionally a report of the Foreign Affairs, Defence and Trade Committee on the International treaty examination of the Paris Agreement commented adversely on the economic modelling which had been undertaken as follows:
The economic modelling has been undertaken within a narrow range of assumptions. Notably it assumes that agriculture sits outside of the ETS. This is a political decision and we consider that robust economic modelling should have considered scenarios whereby agriculture was included.
Furthermore, the report assumed only modest targets to actually reduce domestic emissions and relied heavily on international carbon markets. We note that the availability of these credits will be subject to international transparency rules being developed. We also have concerns about the projected costs of planning to purchase large volumes of international credits with no real forecast of the expected unit price.
[139] That said, I do not accept the economic modelling on which the Minister’s INDC and NDC decisions were based involved a failure to take into account a mandatory relevant consideration. For one thing, the Minister was alerted to concerns about the modelling from some quarters and therefore presumably took them into account, but this did not cause the Minister to form any different view about how to carry out the modelling. Moreover, neither the Convention nor the Paris Agreement stipulate any specific criteria or process for how a country is to set its INDC and NDC, nor how it is to assess the costs of the measures it intends to take. The Paris Agreement seeks a contribution from a country that represents its “highest possible ambition” and developing countries should continue “taking the lead by undertaking economy-wide absolute emission targets” but it leaves these matters to be nationally determined.151
[140] Moreover, the economic modelling was only one input into the NDC decision. The dangerous consequences of climate change are in a sense already part of or inherent in the decision. The reason why New Zealand is a party to the Convention, the Kyoto Protocol and the Paris Agreement is because it accepts the dangerous consequences of inaction. Its targets are predicated on that fact. New
Zealand also accepts that it must play a leadership role, although its own efforts at
151 Article 4.
reducing emissions will make no difference if other countries do not play their part. The business as usual modelling, carried out by the experts that were engaged, simply recognised this reality.
[141] There may have been better ways for the Minister to assess the costs of action and inaction. If there are, the new Minister may pursue those options. However I am not able to say that the INDC and NDC were outside the proper bounds of the Minister’s power because of the manner in which the economic modelling was undertaken.
Tokelau and developing countries
[142] Tokelau is one of the places in the world most vulnerable to the impacts of climate change. It is made up of three atolls that sit between three and five metres above sea-level. Climate change risks sea-level rises that will completely inundate the atolls posing a direct threat to Tokelau’s existence.
[143] The Tokelau Act 1948 declares Tokelau to form part of New Zealand.152 The Act gives the General Fono the power to make such rules as it thinks necessary for the peace, order and good government of Tokelau.153 However any such rule is of no effect, to the extent that it is inconsistent with any New Zealand Act of Parliament that is in force in Tokelau, any Regulation made by the Governor-General applying to Tokelau,154 or any international obligation of Tokelau.155 New Zealand statute law is not applicable unless it expressly states so.156 Generally English common law applies in Tokelau except to the extent that it is excluded by any other enactment or
is inapplicable.157
152 Section 3.
153 The General Fono is a national assembly made up of elected representatives from each atoll. It
meets three times a year. “Tokelau Government: Political System” Government of Tokelau
< s 4 the Governor-General can make any regulations she thinks necessary for the peace, order and good governance of Tokelau. No regulation can be made that is repugnant to any New Zealand Act of Parliament in force in Tokelau.155 Section 3B.
156 Section 6.
157 Section 4B.
[144] In international law Tokelau’s status is as a non-self-governing territory of
New Zealand.158 It does not have its own separate international legal personality.159
Unless a different intention is established, a treaty is binding upon each party in respect of its entire territory.160 Accordingly New Zealand can enter into binding treaty obligations on behalf of Tokelau.
[145] The Convention requires countries to give “full consideration” to “[t]he specific needs and special circumstances of developing [countries]”161 especially the needs of “small island countries and countries with low-lying coastal areas”.162
Given this obligation, the plaintiff submits the Minister was required to take into account the circumstances of Tokelau, and developing countries more generally, when developing the NDC. She submits this should have led the Minister to pursue efforts to limit the temperature increase to 1.5ºC, consistent with the purpose of the Paris Agreement, when deciding on New Zealand’s NDC. She submits there is no evidence the Minister did so.
[146] The plaintiff submits this is reinforced by s 20 of the New Zealand Bill of Rights Act 1990 (NZBORA) under which an “ethnic … minority” has the right not to be denied “in community with other members of that minority, to enjoy the culture
… of that minority”. She submits this required the Minister to base the target on an assessment of what the world needed to do to limit the temperature increase to 1.5ºC and to make its NDC consistent with that.
[147] The defendant submits the decision on the 2030 target had regard to the adverse effects of climate change on New Zealand citizens as a whole, which
158 Tokelau has been on the United Nations’ list of Non-Self-Governing Territories since 1946, following the declaration of the intention by New Zealand to transmit information on the Tokelau Island: General Assembly Resolution 66(I) (14 December 1946). See also for recent confirmation of Tokelau’s status Resolution adopted by the General Assembly on 6 December
2016: Question of Tokelau 71/107, A/Res/71/107 (2016) and Tokelau: Working Paper by the
Secretariat A/AC.109/2017/14 (2017).
159 See generally Tokelau Act 1948 (NZ) and Ministry of Foreign Affairs and Trade “Tokelau”
< is typically subject to major treaties to which New Zealand is a party by virtue of the
1988 Declaration of New Zealand to the United Nations Secretary General UNGA LE 22 and New Zealand’s communication on 10 April 2002 (United Nations “Multilateral Treaties Deposited with the Secretary-General: Historical Information” < See also Laws of New Zealand International Law (online ed) at [58].
161 Article 3.
162 Article 4.
included the adverse effects of climate change on Tokelauans although this was not a mandatory relevant consideration. The defendant also submits the application of NZBORA was not pleaded, it is not part of Tokelauan law and it does not in any event assist the position advanced.
[148] I agree the NZBORA argument was not pleaded. Nor did I receive full submissions from either party about its application to Tokelau. I also agree with the defendant that the NZBORA argument does not really add to the plaintiff’s argument, which is that New Zealand’s NDC should have been made on the basis of a 1.5ºC goal if the impact on Tokelauans had been considered, and the Convention and Tokelau’s status as part of New Zealand required this.
[149] Turning to the evidence, I have not been referred to anything in the various documents leading to the INDC and NDC decisions that the impact on Tokelauans was factored into what New Zealand’s contribution should be. I do not accept the defendant’s submission that because the NDC took into account the adverse effects of climate change of New Zealand as a whole, this meant the specific circumstances of Tokelau were considered.
[150] The evidence from Ms Tyndall is that New Zealand consulted with Tokelau about ratifying the Paris Agreement. She refers to the report of the Foreign Affairs, Defence and Trade Committee on the International treaty examination of the Paris Agreement. This refers to MFAT consulting with Tokelau’s climate change advisors about its inclusion in New Zealand’s ratification process, and preparing a consultation document for Tokelau to consider. It also states:
We strongly encourage MFAT to continue to engage with Tokelau as to whether New Zealand ratification will extend to Tokelau. Tokelau, like many Pacific Islands, stands to be substantially impacted by the effects of climate change and it is critical that its views are given an international voice.
[151] Tokelau advised that it did wish to be included in ratifying the Paris
Agreement. This was announced at CMA 1.163 Ms Tyndall says New Zealand’s
report on reductions of greenhouse emissions will therefore extend to Tokelau. In
163 The supreme decision making body of the Paris Agreement is the COP serving as the meeting of the parties to the Paris Agreement (CMA): Paris Agreement, art 16.
addition to this, she says the New Zealand Government is currently determining how the extension to Tokelau will be implemented. She also says New Zealand is considering an adaption goal for Tokelau which it will communicate separately from New Zealand’s NDC.164 Additionally I note the financial assistance for Pacific Islanders which Mr Key, the then Prime Minister, announced at Paris.165
[152] It is therefore clear that New Zealand had Tokelau in mind when deciding whether to ratify the Paris Agreement and it intends to assist Tokelau and other developing Pacific Island countries to meet their climate change costs and to adapt to the adverse effects of climate change. The plaintiff’s point is, however, a different one. In essence she says New Zealand should have considered its NDC against a target of 1.5ºC rather than a target of below 2ºC because of the severe consequences for Tokelauans of climate change. In other words the submission is that New Zealand’s NDC was less ambitious than it might have been because Tokelauans were not considered.
[153] Ms Tyndall notes that in the negotiations leading to the Paris Agreement many small island states argued the goal should be to hold the increase in the global average temperature to 1.5ºC. She says this was ultimately reflected in the Paris Agreement. I accept the Minister made the NDC decision understanding that the aim was to hold the increase in global temperatures to well below 2ºC while pursuing efforts to limit the temperature increase to 1.5ºC. In other words, the NDC decision was made in light of the correct temperature objectives which recognised the temperature goal advocated by Pacific Island countries.
[154] In the international arena New Zealand has the opportunity to factor the impacts on Tokelauans into its NDC, if and to the extent to which it considers it appropriate to do so. As set out earlier, under the Paris Agreement a country’s NDC must be updated every five years and each NDC is to represent a progression. Next year a special IPCC report is envisaged reporting on the feasibility of limiting the global temperature increase to 1.5ºC above pre-industrial levels and parties will be
invited to consider this as they prepare to update their NDC by 2020.
164 As required by art 4(4) of the Convention.
165 As required by art 4(3) of the Convention.
[155] Lastly I note Mr Groser’s view that New Zealand’s INDC:
Represents a fair and ambitious target, is an appropriate response to the serious problem of climate change, complies with our international obligations, appropriately reflects our national circumstances and reasonably balances the various scientific social cultural and economic factors that were at play.
[156] As discussed earlier New Zealand had to decide whether to confirm its INDC as its NDC earlier than it had anticipated because of the international momentum to ratify the Paris Agreement. This meant New Zealand did not have certainty about the accounting and international carbon market access rules that would apply. At this stage New Zealand was consulting with Tokelau about whether it wished to be included in the Paris Agreement. In light of the uncertainties about how New Zealand might meet its INDC, there is nothing to suggest that the Minster would have considered it appropriate to communicate an even more ambitious NDC than it did because of Tokelauan considerations. It was and is separately considering how to assist Tokelau.
[157] In summary I consider the impact on Tokelauans is a mandatory relevant consideration when New Zealand is considering its responses to climate change, given Tokelau’s dependence on New Zealand and its status in international law. However I am not persuaded this meant New Zealand’s NDC needed to be consistent with a 1.5ºC target. Nor am I persuaded New Zealand’s NDC was likely to have been any different if the specific circumstances of Tokelauans had been considered when making the NDC decision. The international framework provides the opportunity for New Zealand to take account of the special needs and circumstances of Tokelau in its climate change decisions as appropriate. The evidence indicates New Zealand intends to do that.
The NDC
[158] The last pleaded mandatory relevant consideration concerns the scientific consensus that the Parties’ combined INDCs fell short of the extent and speed of reductions needed to stabilize greenhouse gas concentrations in the atmosphere at a
level that would prevent dangerous anthropogenic interference with the climate system.166 This is depicted as follows:
[159] The plaintiff contends the Minister failed to consider this between communicating New Zealand’s INDC and confirming it as the NDC. In my view this was not a mandatory relevant consideration at this stage of the Paris Agreement process. Under the Paris Agreement each country was to determine their own NDC. The assumption under this Agreement is that a country’s INDC would become its NDC on ratifying the agreement unless the country notifies otherwise. The Paris Agreement did not require countries to repeat the substantial process involved in deciding upon an INDC between communicating the INDC and confirming it as the NDC. There was no requirement for countries to adopt a target that if adopted by all would achieve warming well below 2ºC, nor to alter its NDC because the combined INDCs were insufficient to meet the target. This stage of the process is about individual decision making (towards the common goal). The Paris process envisages a 2018 facilitative dialogue intended to assess the collective progress towards the
long term temperature goal.
166 This scientific consensus can be seen in Aggregate Effect of the intended nationally determined contributions: an update – Synthesis Report by the Secretariat (FCCC/CP/2016/2, COP 22
Marrakech, 7-18 November 2016).
[160] The Minister set New Zealand’s NDC, considering it to represent New Zealand’s fair contribution in light of its national circumstances, recognising it would need to determine ways to “bend the curve” on our greenhouse emissions and to show progression over time. The nature of the decision involved a balancing of competing factors. The Government of the day was concerned about imposing burdensome costs on the economy especially when there was no “easy” solution to lowering our emissions from a switch to renewable energy and a large proportion of our emissions arose in the agriculture sector. A period of time was needed for the solutions to lower our emissions that the Government wished to pursue. A differently constituted Government may have balanced the competing factors differently and made different choices about how to lower our emissions. But that does not mean the NDC was outside the proper bounds of the Minister’s power, even though the combined INDCs were an insufficient response to the dangerous climate change risks.
The third cause of action: NDC irrational/unreasonable
[161] The plaintiff’s third cause of action pleads that the NDC decision was
irrational or unreasonable because:
(a) there is no rational basis for the belief that the NDC will strengthen the global response to the threat of climate change; and/or
(b)the global scientific consensus shows the NDC falls short of the extent and speed of reductions needed to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.
[162] The plaintiff’s written and oral submissions elaborated on this cause of action. The matters which together were said to have led to an unreasonable and irrational decision were:
(a) The Minister in setting the NDC focussed on 2ºC as the target, when this should have been treated as an upper limit, and the aim was to pursue efforts to limit the temperature increase to 1.5ºC.
(b)New Zealand’s decision was based on optics (that is, how the decision would look as compared with other countries) when, as a developed country, New Zealand needed to take the lead and not be satisfied with “shuffling along with the crowd”. If New Zealand can do more then it must do more.
(c) New Zealand’s pathways for achieving its target rely heavily on carbon trading in international markets and envisage a “star trek” solution relying on future technology, and it is wrong to base decisions on technology that does not and may never exist.
(d)The modelling that was carried out showed the incremental cost of deeper targets was comparatively small.
(e) New Zealand’s decision failed to take into account the cost of delay.
This included failing to take into account intergenerational equity, that is that delaying action now imposes unfair costs on future generations. It also included failing to take into account that delaying action will increase the accumulation of carbon levels in the atmosphere and will mean negative emissions will not be achievable without future (uninvented) technology.
(f) New Zealand failed to take into account the alleged mandatory relevant considerations referred to in the second cause of action.167
[163] The plaintiff seeks a declaration that the NDC decision was unlawful, an order quashing the NDC and an order that the decision be remade.
[164] As discussed earlier, I am not persuaded the Minister had the wrong global temperature aim in mind when setting the NDC. New Zealand was actively involved
in the process leading to the Paris Agreement and was well aware of what it
167 Failed to take into account the cost of climate change if no action is taken, the interests of Tokelau and the inadequacy of the combined global INDCs. These have been considered under the second cause of action and did not need further consideration here.
provided. The feasibility of limiting the global temperature increase to 1.5ºC is soon to be the subject of further international dialogue.
[165] Nor am I persuaded the Minister’s decision was based on optics. The extensive process leading to the NDC has been discussed earlier. The relevant papers appropriately discussed a range of key objectives, one of which was international credibility. It is wrong to read that as meaning simply doing what others were doing regardless of our ability to do more. Other countries’ targets were relevant to test the fairness and ambition of our target.
[166] The evidence shows that our target is fair when considered on this basis. Professor Frame provides a comparison of New Zealand’s 2030 target against other
developed countries in the following table:
Country Name Base year Emissions reductions End year Australia 2005 -26-28% 2030 Canada 2005 -30% 2030 New Zealand 2005 -30% 2030 Japan 2005 -25.4% 2030 EU 1990 (2005) -40% (-36%) 2030 United States 2005 -26-28% 2025
[167] I am also not persuaded New Zealand’s target is based on “star trek” technology. The papers I have discussed above do not show this. They do, however, show that a range of choices were available and New Zealand was contemplating the possibility of meeting a large percentage of its target by buying overseas emissions. Professor Renwick regards this as meeting the letter of the Convention, but doing nothing to reduce the atmospheric burden of CO2 and other greenhouse gases. However it is the legal position which is the Court’s concern and the use of “internationally transferred mitigation outcomes” or carbon credits is permitted under the Paris Agreement. It can be expected that the extent to which international carbon markets will in fact be utilised will be influenced by a number of factors, including the carbon prices in both international and domestic markets over the period to 2030. The documents before me also indicate New Zealand was supporting research into reducing biological emissions, but I have not been provided with information to show this envisages “star trek” technology.
[168] I am also not persuaded the NDC decision was unreasonable in a judicial review sense because the costs of deeper targets are comparatively small and there are other costs associated with delay. How the costs considerations are appropriately balanced is properly for the Executive to decide, especially as the international legal framework does not stipulate how a country is to determine this.
[169] More generally the plaintiff’s submission is that delaying additional mitigation to 2030 will substantially increase the challenges associated with limiting warming to below 2ºC. This submission is supported by Professor Renwick’s evidence. He says that the consequence of delay is that it will require substantially higher rates of emissions reductions from 2030 to 2050; a much more rapid scale-up of low carbon energy over this period; a larger reliance on CO2 removal in the long term; and higher transitional and long-term economic needs. He also says that technology required for large scale CO2 removal does not presently exist. This may all be so, but New Zealand’s NDC does not remain set in stone until 2030. Reviews are envisaged. It is for the new Minister to consider any appropriate review.
[170] Professor Renwick says that New Zealand’s 2030 target is not consistent with its 2050 goal. The direct pathway between a 5 per cent reduction from 1990 levels in 2020 and a 50 per cent reduction in 2050 would require about a 20 per cent reduction from 1990 levels in 2030 (or about 37 per cent from 2005 emission levels). This contrasts with New Zealand’s 2030 target of 30 per cent from 2005 levels (equating to 11 per cent below 1990 levels by 2030). More importantly New Zealand’s emissions trajectory is rising, and is projected to continue to increase.
[171] Professor Frame says that what is important is a country’s cumulative CO2 emissions in the period between pre-industrial times and net zero global emissions, rather than a country’s emissions in any given year or the rate of reduction across a decade or two. The AR5 sets out a range of climate budgets consistent with limiting warming to under 2ºC at different levels of probabilities. These budgets are not part of an international agreement. Professor Frame says this means a country’s decision on which budget and probability it will pursue is not a question for science – but involves social, economic and political judgments about relative risks of over and under mitigation.
[172] Professor Frame says that emissions plans are important in determining the rate at which CO2 emissions (and other long-lived greenhouse emissions) are capped. The AR5 states that global emissions need to reduce to 40-70 per cent of
2010 levels by 2050. Professor Frame provides a graph which compares New Zealand’s 2030 INDC (now NDC) against the European Union’s (EU) INDC and also as against our 2050 target. His graph is as follows:
[173] The black line is a plot of global CO2 emissions; the blue line is a linear
projection of the EU’s baseline year (1990) and target (a 40 per cent decrease by
2030); the red line is a linear projection of New Zealand’s baseline year (2005) and target (a 30 per cent decrease by 2030); the “x” reflects New Zealand’s 2050 target; the green line represents a reduction of 40-70 per cent by 2050 against a 2010 baseline year. The blue and red lines are projected to net zero emissions, since this is a necessary condition of temperature stabilisation.
[174] Professor Frame accepts that these linear projections are a simplification which likely under-estimates cumulative emissions. This is because of the implausibility of a rapid reversal of emissions trends near the red and blue diamonds pictured and the historical emissions trends across the recent past (when real emissions grew from 1990 to 2014). However, the fact that it takes time to reverse course on emissions growth, is also why in Professor Frame’s view a steepening of emissions reductions over the next 50 years should be expected if mitigation policy is successful.
[175] Professor Frame further comments:
(a) Professor Renwick is correct that New Zealand’s INDC does not lie along a line connecting 1990 emissions with New Zealand’s longer term 2050 target. However the difference is small and is consistent with inertia in the technological and economic systems that give rise to emissions.
(b)The blue line (EU approach) has lower cumulative emissions than the red line (New Zealand approach) and less warming. However both approaches “if taken at a global level, would be broadly consistent with the 2ºC goal, depending on the details of warming arising from non-CO2 gases and allowing for uncertainty in climate system parameters”. It is “certainly not clear that the red line is at all inconsistent with the 2ºC aspirational goal”.
(c) New Zealand’s INDC, if scaled to the global level, is also consistent
with the AR5 statement that global emissions need to be reduced by
40-70 per cent on 2010 levels by 2050 (as shown by the red line’s
intersection with the green line).
[176] In my view Professor Frame’s analysis shows that New Zealand’s 2030 target is somewhat less ambitious than its 2050 target and somewhat less ambitious than the EU’s target. That may increase the costs to New Zealand of reducing our emissions over time. That, however, does not mean it is inconsistent with the global temperature goal under the Paris Agreement such that the NDC does not meet our international obligations and is outside the proper bounds of the Minister’s power. Importantly, nor does it mean that a new Minister will take the same view about the appropriate level of ambition for New Zealand. As noted earlier, the new Government intends to amend the 2050 target. Amending the 2030 target may
follow from this.168 It is open under the international framework to review the 2030
168 The new Minister has recently made this point. See “Government considering experimental climate change visa” (1 November 2017) Stuff.co.nz < and Dateline Pacific “NZ points to Zero Carbon Act to curb emissions” (31 October 2017) Radio New Zealand
< It is also open under our domestic law to set a new 2030 target or other targets as is considered appropriate in light of the relevant economic, environmental, social and international considerations involved.
Fourth cause of action: NDC decision (mandamus)
[177] The plaintiff ’s fourth cause of action is for a writ of mandamus in relation to the NDC decision. It is sought in the event the plaintiff’s application for declarations and orders is successful to require the Minister to make the NDC decision again. As I have considered it is not appropriate to make the declarations and orders sought under the other causes of action, it is not necessary that I consider this cause of action further.
Result
[178] On the first cause of action (relating to the 2050 target) I accept 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 has been overtaken by subsequent events. The new Government has announced it intends to set a new 2050 target. Court ordered relief is therefore unnecessary.
[179] On the second and third causes of action (relating to the NDC decision which set a 2030 target) I am not persuaded the Minister made any reviewable error for which the Court may intervene. The international framework has been followed. It has not been demonstrated the NDC decision was outside the Minister’s power under this framework. That is not to say another Minister would have assessed the appropriate 2030 target in the same way and reached the same decision. Nor does it prevent New Zealand from doing more between now and 2030 than contemplated in its NDC decision. The international process envisages review and demonstrated progression by developed countries including New Zealand. Quite apart from the international process, New Zealand remains free to review its 2030 target (or any other target) as it considers appropriate. The community has elected a new
Government and it is for that new Government to weigh the competing factors and to reach a view about the appropriate targets going forward.
[180] For these reasons the application for judicial review is dismissed.
[181] My preliminary view is that the costs should lie where they fall. If there is any issue about this the parties may submit brief memoranda (no more than five pages each and limited to the issues in dispute) within three weeks of the date of this judgment.
Mallon J
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