Northland activist loses appeal for courts to hold big business accountable for climate emissions

Marsden Pt Oil Refinery

A Northland activist has lost an appeal to get the courts to legally enforce a reduction in greenhouse emissions by corporate giants, including the Marsden Pt Oil Refinery and Fonterra.

The Court of Appeal has reinforced a High Court decision that government legislation, rather than the courts, was the best way to address climate change.

Mike Smith, (Ngāpuhi and Ngāti Kahu) and climate change spokesperson for the Iwi Chairs' Forum, took a case to the High Court last year asking that the it legally enforce a reduction in greenhouse emissions by corporate giants, including Marsden Pt-based New Zealand Refining Company, Fonterra, Genesis Energy, Z Energy, Dairy Holdings, New Zealand Steel and BT Mining.

Smith filed a statement of claim alleging negligence, public nuisance and breach of duty in terms of greenhouse gas emissions from the companies.

However, the High Court rejected is arguments, saying a better course for aggrieved victims of climate change is to hold the government responsible rather than seek declaration through the courts, which are poorly equipped to deal with the issue.

Smith then appealed to the Court of Appeal, which this week released it's judgement rejecting the appeal.

Smith contended that too little is being done in the political sphere on the issue of climate change and called for a bold response from the common law through the court.

The seven New Zealand companies are all involved in industries that either emit greenhouse gases or produce/supply products which release greenhouse gases when they are burned.

These activities, Smith said, contribute to dangerous anthropogenic interference with the climate system and lead to adverse climate events. He said poor and minority communities will be disproportionately burdened by these adverse effects.

Smith sought redress against the defendants under three causes of action — public nuisance, negligence and a proposed new tort "breach of duty". As to remedy, he sought declarations that each respondent has unlawfully caused or contributed to the negative effects of climate change or breached duties owed to him. He also sought injunctions requiring each to produce zero net emissions by 2030.

But the Court of Appeal said to recognise such a duty would be a radical response contrary to the common law tradition which is one of incremental development.

''This is especially true in this case which would require fundamental principles to be departed from. No other tort claim recognised by the courts involves a scenario where every person in New Zealand and the world (to varying degrees) is both responsible for causing the relevant harm and is also the victim of that harm,'' the appeal court judges, Justices French, Goddard and Cooper said.

Smith sought to identify a small group of those responsible, but he was unable to identify any principled basis for singling them out, the judgement said.

It was accepted that none of the defendants standing alone materially contributed to climate change. If their contribution to climate change is an actionable wrong, the logic underpinning that finding would apply to every individual and every business that has not achieved net zero emissions, the court said.

''It would be a surprising result if every person and business in New Zealand could be brought before the courts for contributing to climate change and therefore restrained from doing so — such a situation would have tremendous social and economic consequences.

''Additionally, such restraint would have to be enforced and monitored by the courts which would require some sort of emissions offset and trading regime parallel to the statutory regime. Actions would have to be brought on an ad hoc basis which would be inherently inefficient and unjust.''

For these reasons, and others, the Court of Appeal said the issue of climate change cannot be effectively addressed through tort law.

''Climate change is a pressing issue which involves competing social and economic considerations which are more appropriately addressed by the legislature,'' the judges said.