Some say the government ‘had’ to legislate to put a stop to Mike Smith’s climate lawsuit, suggesting ‘activist’ judges went rogue in allowing the case to proceed. They’re wrong, says Steven Price.

The government’s decision to torpedo Mike Smith’s climate lawsuit against the country’s biggest carbon emitters has, unsurprisingly, drawn fire. Governments don’t usually vaporise a court case midway through. Especially not one that’s been given the green light by a unanimous supreme court. More especially when they’re following a legislative strategy mapped out for them by some of the defendants, whose paper trail the government somehow misplaced.

All in all, it’s a saga that was ripe for discussion by the intrepid crew of The Spinoff’s very own politics podcast, Gone By Lunchtime. Listeners could settle in for an amusing and authoritative primer by the usually excellent and even-handed Ben Thomas.

But what’s this he’s saying? It’s a case about the private law of nuisance, typically brought against a neighbour “when their untreated sewerage runs onto your property”. But that law has been misused by “carbon dioxide vigilantes just suing anyone who releases carbon dioxide”. The Crown asked for it to be struck out and the supreme court, in an “extremely activist decision”, refused. The judges were “totally out of line”. The case undercuts the Emissions Trading Scheme, a “very comprehensive set of regulations about carbon emissions”. The government “had” to legislate to overturn any liability the court might impose. In fact, any government would. “There is no way that a Labour government would let a court action – if that was successful – like Mike Smith’s stand. There just is no way.”

It’s difficult to find any part of this that is accurate. 

For a start, the case isn’t a private nuisance case. It’s a public nuisance case. Those are about threats to public health or safety of a class of people. In this particular case, that class is a large one, and in fact is everyone, though Smith has to show he’s been particularly affected.

The courts developed the law of public nuisance a long time ago to tackle harms suffered by the public, which you might think is a pretty accurate description of climate change. Still, the courts put boundaries around it, and it hasn’t been widely used to deal with greenhouse gases. That’s why Smith’s case is regarded as a landmark decision. But the supreme court pointed out that the common law has always evolved to meet societal crises, such as the environmental impacts of the industrial revolution. It has the potential to rise to the occasion with climate change too.

But the case isn’t just about nuisance. Smith is also arguing for the existence of a novel tort alleging the defendants have a legal obligation not to damage the climate system.

That might strike you as weird. You mean, lawyers and courts can just make up new laws? But in fact, yes, they can. The modern law of negligence was established as late as 1932. The tort of privacy emerged in the last few decades. A new public interest defence to defamation was invented by lawyers and courts in 2019. Anyone giving advice before those developments would have said, “the law can’t help you there.” They would have been wrong.

The new tort that Smith is arguing for wouldn’t let you sue someone for their car exhaust. It’s limited to a handful of companies that, together, are responsible for about a third of the country’s emissions.

The Crown is not involved in the case. But the defendant companies did seek to strike Smith’s claim out. They partially won in the high court, won in the court of appeal, and lost in the supreme court.

There’s a good argument to be had about whether this was a good decision. Those who think it wasn’t call it “activist”. This is code for: power-hungry judges getting too big for their boots, tromping their way across territory that is rightfully parliament’s, and illegitimately foisting their liberal ideology on us. 

But there’s another way of looking at this. The law makes it hard to strike out cases. You have to show they’re doomed to fail. Judges have traditionally been reluctant to throw out cases where the law is developing. They tend to say, “let’s have a look at all the evidence as it comes out at trial, then we’ll be in a much better position to say what the law requires.” The decision in Smith’s case is consistent with that approach.

The supreme court judges acknowledged that Smith’s claim faced serious obstacles. But they thought it deserved a trial.

Our judiciary is generally not especially activist. As Lord Cooke used to say, there are two types of judges – the conservative, and the very conservative. The supreme court judges may have had in mind the uniform failure of governments around the world to deal with climate change, widely regarded as the most serious threat the planet is facing. They may have been thinking about the responses of some courts that decided to reluctantly step up to the plate. 

They certainly did consider the Emissions Trading Scheme. The ETS is New Zealand’s primary mechanism for dealing with greenhouse gases. But that doesn’t mean it’s comprehensive. For example, the ETS doesn’t deal with compensation for harms caused by carbon emissions. It doesn’t even specifically require companies to reduce their carbon emissions. Nor does it authorise or immunise emissions. It just facilitates market signals via a trading scheme. 

In fact, the ETS doesn’t even cover all emissions. For example, it doesn’t cover agricultural emissions, or emissions from fossil fuels produced in New Zealand but sold overseas. 

And in this month’s ETS auction, the market flatlined – as it has for the past couple of years. Not a single unit was sold. The Climate Change Commission has warned that, without reform, the ETS is likely to fail.

When the defendants asked the government to blow up this case, officials said: let’s wait and see. That’s also the position of the Labour Party and the Green Party.

Maybe the case is a big stretch. Maybe it will unsettle the law. Maybe judges aren’t the best people to tackle the climate crisis. 

Then again, the government has failed to deal with the climate crisis in any meaningful way. Maybe it’s the courts or bust. 

Steven Price is a Wellington barrister specialising in media law. He is a member of the greenwashing committee for Lawyers for Climate Action, NZ Inc. The views here are his own.