High Court with burning Earth superimposed
Image: Tina Tiller

Why a group of lawyers are taking the Climate Commission to court

The group argues that the commission gave bad advice to the government based on faulty carbon calculations, explains law professor Andrew Geddis.

In case you hadn’t noticed, our planet is at ever-increasing risk of burning up. Literally. Last week, thermometers nearly hit 50 degrees in Lytton, British Columbia. And then the town caught on fire.

I spent a year living in British Columbia, which involved travelling to the other side of the world to feel a lot like I’d arrived back at home. Sure, the interior regularly gets warm in summer; a little hotter than Canterbury in a nor’wester, for comparison’s sake. But this? This is madness. And unless we do something real big, real fast, this (or something equally devastating) is going to be the future for more and more and more of us.

We reality dwellers all know this to be true. However, just how big is the something that we need to do to have a chance of changing our future? And, just how fast do we have to do it? Those are the really hard questions to answer.

Which is why in 2019 He Pou a Rangi – The Climate Change Commission was set up. Its job isn’t to work out all of the various practical steps we need to take to avoid climate disaster. Rather, its most important function is advising the government on how to create a series of future “carbon budgets” to deliver the internationally agreed emission reductions we must make to keep global warming to no more than 1.5 degrees, and then monitoring how well the government is progressing on meeting those targets.

A firefighter looks out at the Bear fire near Oroville, California in September 2020 (Getty Images)

That role is a really important one, because we basically have three options as a society. We can begin making quite big personal and societal changes now and keep doing so over the next 30 years, to spread out the cost of avoiding catastrophe. Or, we can let things carry on much as they are for a while longer and then have to make huge changes in a very short period of time to avoid catastrophe. Or, we can burn like Lytton (or drown, or get blown away, or suffer whatever other fate a radically changed future climate delivers us).

While the first approach clearly is the sane one to take, it’s also the one that carries immediate economic, social and political consequences. And, unfortunately, we have a cognitive bias towards weighting such immediate consequences more heavily than far more serious consequences that lie down the track. Politicians then get elected (and voted out of office) based on three-year cycles, not what might happen decades from now. So, they have an incentive to prefer policy choices that avoid imposing short-term pain, even as they claim to be working to solve the long-term problem.

Which is where the Climate Commission comes into the picture. By focusing on the long-term, advising whatever government is in office on how to set ever-reducing carbon output targets, and calling out governments where the policies they follow are failing to hit these, it may partially help off-set the otherwise presentist bias in policymaking. Of course, the commission’s role not a complete fix for that problem. It can’t force governments to be good. Only we, the voters, can do that by punishing politicians who fail to heed its advice and warnings. However, it can be a voice for the future in a system that otherwise lacks one.

What that voice then says, and in particular the accuracy of the advice it gives in relation to setting carbon budgets, is really important. Politicians are not going to be incentivised to adopt policies that deliver greater carbon reductions than the commission advises (remember the presentist bias when it comes to policy choices!). Should its advice undershoot and recommend the government set carbon budgets at a level that actually are insufficient to meet our international obligations, then the reality is we won’t make the cuts in emissions that we need to in order to keep warming below the “safe” 1.5 degree figure. And if that happens, we’ve failed our future.

That is, in essence, what the Lawyers for Climate Action group is now claiming the commission did in the advice it gave to the government at the end of May this year. Last week, the group filed a judicial review challenge in the High Court arguing that the commission used the wrong basis for calculating future carbon budgets. As a consequence, it has told the government that it can have higher carbon budgets over the next 14 years than actually are required to meet our international obligations. And as such, the lawyers argue, the commission has failed to act in compliance with the legislation that sets out its obligations and duties.

The actual details of the legal argument are pretty technical; anyone with a mix of scientific expertise and legal interest can look at the statement of claim for themselves. And at this point I need to make a belated declaration of interest. I am a member of Lawyers for Climate Action, although I didn’t have a hand in the current proceeding. Two of the group’s leading figures are long-time friends of mine. For those reasons, I won’t presume to give my opinion on the strength of the legal claim because, well, why should you trust it?

All I will say is that it has been brought by serious people who aren’t prone to going to court frivolously. Climate change policy is a series of hard decisions made on sometimes contestable assumptions. As such, this case seeks to ensure that the assumptions that underpin the commission’s advice are warranted – and if not, to get it to revisit that advice with the proper assumptions in place.

Because there is one thing that is beyond dispute. Without going all the way down the “facts don’t care about your feelings” road, if we keep pumping more and more carbon into our atmosphere, we are going to burn up the only planet we have got. And we owe it to the future to make sure our efforts to avoid this future are as well founded as they possibly can be.




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