The High Court has dismissed law student Sarah Thomson’s audacious bid for a judicial review of the last government’s emission-reduction goals. But the ruling delivers some remarkable victories, Thomson writes.
Read Sarah Thomson’s explanation of why she took the government to court here
I received the judgment at the same time as the rest of New Zealand. Immediately, the phone started ringing. Did I see it as a win or a loss? Well, it was neither, and it was both.
My case against the government had challenged two decisions. The first was a failure by the minister for climate change issues – first Tim Groser and later Paula Bennett – to review our 2050 emissions target to keep it in line with updated climate science. The second was the minister’s decision to set our Paris target well below what is needed to keep global warming below 1.5 or 2 degrees.
It’s been two years since I first filed my judicial review case, and now the verdict has finally arrived from the High Court.
Within those 75 pages, there are some wins. The first is for science and reason. The judge found that you can’t just set a target to reduce emissions and forget about it; not when climate science is constantly developing (and it usually turns out things are worse than we thought!)
The judge confirmed that climate ministers have an obligation to review the 2050 target whenever a new IPCC report comes out; a report written by hundreds of climate scientists summarising the most recent consensus on climate science.
By failing to do so, the minister had acted unlawfully. It was what my lawyers and I had argued all along! But there was a twist.
Despite her finding, the judge declined to order the government to go back and review the target.
As her fingers hovered above the keyboard in the final weeks of writing the judgment, a new government came into power. It announced that it has a goal for a carbon zero New Zealand by 2050. Because of this announcement, the judge decided there was no need to order relief from the court
Of course, the new 2050 ambition is exciting, but now it is incredibly important that this is followed through, and that we have a real, tangible plan to get us there.
And what about the Paris Agreement target? Well, I didn’t quite get what I was hoping for – a declaration that the decision was unlawful and unreasonable, and an order for the minister to go back and re-set the target. Once again, this was partly influenced by recent events – a suggestion by the new minister for climate change issues, James Shaw, that the target may be up for review next year.
However, something just as important has come from the case.
The government’s main defence was that the Paris target decision shouldn’t be open to review by the court. It argued that the decision involved the balancing of complex socioeconomic and financial policy factors, and it is not appropriate for the court to review such a decision. It also argued that, because the target is set under an international agreement, it is a matter of “politics”, and not domestic law.
The New Zealand courts have a long history of pushing complex “political” decisions back into the hands of parliament. But not this time.
Successful overseas climate cases have made it clear that even though climate change is a complicated and politically charged issue, this shouldn’t stop courts from making governments accountable to law and reason. The judge confirmed this point with this amazing remark:
“The Courts have recognised the significance of the issue for the planet and its inhabitants and that those in the Court’s jurisdiction are necessarily among all who are affected by inadequate efforts to respond to climate change.”
Further, she said that the importance of the matter warrants scrutiny of the public power by the courts, in addition to accountability through parliament and elections.
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So the Paris target decision was ultimately reviewable. In my view that’s a really powerful and meaningful outcome. One case paves the way for another, and each success is a stepping stone for the next case. Widening the scope for climate change decisions to be reviewed by the New Zealand courts is a win, in my view. A win for people and our future.
Now, the ball is in new minister, James Shaw’s court. The onus is on him and the new government to deliver on their promise – and quickly. While Shaw’s recent announcement is incredibly encouraging, it is absolutely critical that he follows through. (An appeal hasn’t been ruled out, yet!) The climate clock is ticking, and there’s no time to let politics get in the way.
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