While the Parliament grounds were literally burning last week, the rest of the world is heating up, which is one of the reasons why Lawyers for Climate Action NZ Inc (LCANZI) has taken on the
Climate Change Commission in a judicial review proceeding.
For context, Lawyers for Climate Action is a society of lawyers which donates its legal services to promote action on climate change in New Zealand.
"We are lawyers who want to use our legal skills and experience to ensure a better future for everyone," the official website reads.
"We accept that the scientific evidence shows that climate change will cause global catastrophe unless we cut emissions now and achieve zero net carbon emissions by 2050. We believe that New Zealand can and should do more in the global fight against climate change."
In a nutshell - the not-for-profit incorporated society brought judicial review proceedings arguing the Climate Change Commission's advice for cutting emissions didn't cut the mustard and negatively impacted New Zealand's climate change policies.
Climate Change Minister James Shaw was also named in the suit.
Jenny Cooper QC and James Every-Palmer QC represented LCANZI, Victoria Casey QC appeared for the Climate Commission, and the Crown represented James Shaw.
Affidavit evidence was provided by Professor Piers Forster from the University of Leeds, Dr Joeri Rogelj from Imperial College, London, Professor Donald Wuebbles at the University of Illinois, Dr Stephen of telecommunications commissioner fame, Professor Ralph Sims from Massey University, Dr Geoff Bertram from Victoria University's Institute for Governance and Policy Studies, and Dr William Taylor from Nera Economic Consulting.
The hearing kicked off on Monday, February 28, and was due to finish on Friday. It was interrupted after anti-mandate protesting on the Parliament grounds escalated on Wednesday.
A bit of background
The Zero Carbon Act asks the Climate Commission to set carbon budgets in a bid to contribute "to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5C".
In 2018 the Intergovernmental Panel on Climate Change (IPCC) provided advice on the urgent steps required to limit global warming to 1.5C. The expert body found that the world had to reduce its output of carbon dioxide by 40-58 per cent.
Last year the Climate Change Commission gave the Government its plan to reduce gas emissions. The three budgets pledged to cut domestic greenhouse gas emissions by 7 per cent by 2025, 20 per cent by 2030, and 35 per cent by 2035. The Government indicated it was likely to follow this path.
The commission concluded that deeper domestic emissions cuts could bring "damaging and inequitable levels of economic and social disruption".
The commission also provided advice on whether New Zealand's 2030 emission target under the Paris Agreement was consistent with keeping temperature rises to 1.5C. The New Zealand Government has subsequently revised its 2030 target based on the commission's recommendations.
Last week's case essentially comes down to maths. The IPCC compares net emissions in the baseline year in 2010 against net emissions, but in its advice the commission compared gross emissions against net emissions. Comparing gross emissions against net emissions is arguably comparing apples with oranges, LCANZI argued.
LCANZI argues that if the commission was to properly apply the IPCC report, the 2030 emission reduction target and emissions budgets recommended would involve much higher emission reductions.
LCANZ also argued the commission misinterpreted the statutory provisions relating to the tool used to measure emissions, and the proposed budgets were "irrational, unreasonable and inconsistent with the purpose of" the Climate Change Response Act.
During the hearing, the commission agreed it didn't use the IPCC's report as a starting point when setting its domestic carbon-cutting budgets. It said it wasn't obliged to, instead saying that it did its job based on the criteria of the Zero Carbon Act.
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The commission said it followed norms established over decades of global negotiations, from the Kyoto Protocol to the Paris Agreement.
Under the Paris Agreement for example, the Government is free to choose its own carbon-cutting target.
Climate Change Minister James Shaw, represented by the Crown, defended plans to introduce slow, steady national emissions cuts rather than ambitious action.
Crown lawyers said the Government didn't have a legal duty to align with leading scientific advice and the temperature target was more of an aspiration.
Where to from here?
Justice Jillian Mallon can only rule that a decision was unlawful as opposed to making a judgment on the quality of a decision.
If LCANZ convinces Justice Mallon, the Climate Change Commission may be directed to go back to the drawing board. While the Government has declared a climate emergency it's not compelled to heed the commission's advice.
The commission also has the ability to appeal the decision if it's found in favour of LCANZI. A judgment will be issued in the coming weeks.
Meanwhile, the IPCC released its sixth assessment into the impacts of global warming last Tuesday. It painted a grim picture of what it will be like for communities, ecosystems and biodiversity if we see temperatures rise above 1.5 and two degrees celsius.
The IPCC called for urgent action.