High-powered lawyers are challenging the Climate Change Commission’s ambition in the High Court, Marc Daalder reports

A coalition of more than 300 lawyers has filed suit against the Climate Change Commission and Climate Minister James Shaw in the High Court.

They allege the commission’s recommended emissions budgets and advice on strengthening New Zealand’s Paris Agreement target are not consistent with the international climate pact, the Zero Carbon Act or limiting global warming to 1.5 degrees above preindustrial levels.

“The Climate Change Commission’s advice looks ambitious on a first glance. However, when you dig into the detail, it fails to adequately address the scale and urgency of the task and is inconsistent with the legislation and international agreements it is meant to address,” Jenny Cooper QC, the president of Lawyers for Climate Action New Zealand (LCANZI), said.

“There is scientific consensus that limiting warming to 1.5°C is essential to avoid the worst impacts of climate change. It is also the agreed global goal under the Paris Agreement, and the purpose of the Climate Change Response Act. The Commission’s current advice does not meet this target.”

Many of the arguments that LCANZI make in their legal filing mirror those found in their submission on the commission’s draft advice, which Newsroom reported on in March.

In their statement of claim, filed with the High Court on Thursday, the lawyers lay out five grounds for review and ask the court to order the commission to re-work its advice on the Paris target and recommended emissions budgets. They also want the court to declare that the commission acted unlawfully in providing its recommended emissions budgets and Paris target advice.

In a statement, commission chair Rod Carr acknowledged the filing of proceedings but said little more.

“We have received a copy of the proceedings from Lawyers for Climate Action today, and we will be taking the time to review them. The Board and the Commission will consider the issues raised, and the board plans to meet next Tuesday 6 July to discuss.”

The lawyers said they weren’t seeking any relief against Shaw at this stage, but would do so if he made any decisions based on the faulty advice. However, they also said they would prefer Shaw take some action (even if “inadequate and unlawful”) than let the court proceedings delay any progress.

“We do not want to slow down long overdue action to reduce emissions. Work to reduce emissions should not be delayed because of this litigation. However, it is important to get the budgets aligned with the science on what is required, or we will fail to achieve our goal of avoiding catastrophic climate change,” Cooper said.

Newsroom has reached out to Shaw’s office for comment.

Paris target revisions insufficient

LCANZI say the commission failed to heed their submission on its draft advice.

At issue are disputes over how to account for the effects of carbon-sucking forests. This largely technical area might appear anodyne, but has immense significance. Slight methodological changes could be the difference between appearing to meet our targets and missing them by a mile.

“These errors need to be addressed if Aotearoa New Zealand is to meet its obligations and address climate change,” Cooper said.

The lawyers’ first reason for seeking judicial review deals with the commission’s efforts to match New Zealand’s Paris target against international estimates for what is needed to limit warming to 1.5 degrees.

Everyone agrees our current Paris target – also called our Nationally Determined Contribution or NDC – is not compatible with 1.5 degrees. That was one of the main findings of the commission’s report and was an open secret in Wellington ever since an international panel of experts reported in 2018 on what reductions would actually be needed. That report, the Intergovernmental Panel on Climate Change’s (IPCC) Special Report on 1.5 Degrees, found that global carbon dioxide emissions would have to fall between 40 and 58 percent by 2030 from 2010 levels to have even a 50 to 66 percent chance of remaining within 1.5 degrees.

In determining what Paris target would be consistent with 1.5 degrees, the commission applied that range of reductions to New Zealand’s emissions. However, while the IPCC ranges involved net carbon dioxide (which takes into account the impact of forestry) in 2030 being 40 to 58 percent lower than net 2010 levels, the commission used a method called gross-net accounting.

Climate Change Minister James Shaw was also named in the suit. Photo: Lynn Grieveson


As one might guess, this meant it set a target whereby New Zealand’s net emissions in 2030 would be 40 to 58 percent below gross emissions in 2010. This makes the required cuts look steeper than they actually are.

While New Zealand uses gross-net accounting for communicating its targets, including its Paris target, the lawyers say this method can’t be applied to imply compatibility with the IPCC ranges, which were calculated completely differently. In essence, they say the commission is comparing apples with oranges. They describe the choice to use gross-net accounting in this as a “logical error” and say the commission’s advice on the NDC is therefore “unlawful and irrational”.

Emissions budgets should be strengthened

LCANZI’s second ground for the proceedings deals with the recommended emissions budgets. It says the commission failed to develop these in the right way, as it created them from the starting point of what was feasible with existing technology while not doing undue damage to the economy. The commission also determined that any emissions budgets that were consistent with meeting New Zealand’s 2050 net zero and biogenic methane targets would be consistent with the Zero Carbon Act, while the lawyers say those budgets are also required to be consistent with 1.5 degrees and the Paris Agreement.

Instead, the lawyers say, the commission should have developed budgets that were consistent with 1.5 degrees – as set out by the IPCC ranges – and then offered up recommendations on how much of those budgets could be completed. The remaining gap between what was achievable and what the science called for could then be achieved by funding decarbonisation efforts elsewhere.

While the commission said the budgets would represent everything that could be achieved domestically and the NDC would be a 1.5 degree-consistent target (with the difference made up with offshore mitigation), the lawyers say the budgets out to 2030 and the NDC should be one and the same. They also say more should be done domestically than called for by the commission.

Emissions between 2021 and 2030 should be limited to 400 million tonnes of greenhouse gases, LCANZI argues. That’s 32 percent lower than the maximum NDC the commission proposed and 38 percent below the emissions budgets for that period.

“The Commission’s Advice on the proposed emissions budgets and the revised 2030 NDC is advice no reasonable decision-maker in its position could have given,” the lawyers write.

Forestry accounting challenged

Finally, the lawyers also take issue with the entire accounting method underpinning the commission’s report. Because New Zealand undergoes multi-decadal cycles of planting and harvesting vast numbers of pine trees, the CO2 removals from forestry look like a massive rollercoaster. New Zealand is on the verge of embarking on another harvesting spree, which will release significant amounts of CO2 into the atmosphere and could mask the impacts of genuine emissions cuts.

For example, in 2010, forests sucked almost 28 million tonnes of carbon dioxide out of the atmosphere. In 2030, they’ll be sequestering less than a quarter of that. That means that even if gross CO2 emissions fell 20 million tonnes in the intervening period, net emissions would remain flat.

The traditional way of accounting for land emissions (called land-based or GHGI), which is used by New Zealand in its annual updates to the United Nations, would report our progress that way. This method gives a real-time depiction of “what the atmosphere sees”. When trees are planted and growing, net emissions fall. When they’re harvested, net emissions rise.

The commission used a different framework, modified activity-based accounting, which smooths the impact of forestry over the entire planting and harvesting cycle.

The commission wrote that a land-based approach could damage the case for climate action.

“This results in significant fluctuations in net emissions due to harvest cycles. These are temporary and obscure underlying, more enduring trends, confusing policy and price signals about the action needed. These fluctuations also make it easier to reach net zero but difficult to maintain it after 2050,” the commission wrote.

“In the NDC’s modified activity-based accounting, averaging smooths out the fluctuations. This makes it clear that Aotearoa needs to plant new forests and reduce deforestation to contribute to longer-term emissions reductions.”

But the lawyers argue that the modified activity-based approach masks what’s really happening and risks making the commission’s budgets look more ambitious than they are. They say the commission is required to use the land-based method by the Zero Carbon Act.

“The commission has erred in law by adopting the modified activity-based approach rather than the mandated GHGI approach,” they write.

“This presentation is misleading as Aotearoa New Zealand’s actual net emissions have been increasing for each of the three previous decades and will continue to increase in 2021-30 under the proposed budgets.”