Comment

Court decision on greenhouse gas emissions a warning for NZ

In a landmark judgment issued earlier this month, the Hague Court of Appeal ordered that the Dutch state’s target to reduce greenhouse gas (GHG) emissions was in breach of its duty to protect its citizens’ human rights, and was deemed illegal. In the absence of ambitious action by world leaders on climate change, the case points to the growing tendency by citizens to force action through the courts.

The ‘Urgenda’ decision

Urgenda (‘Urgent Agenda’), a Netherlands-based citizens group, filed proceedings against the Dutch state in 2013 arguing that the government’s target to reduce GHG emissions by 17 percent by 2020 against 1990 levels was insufficient to avert dangerous climate change. The District Court of the Hague agreed and, in a world first, ordered the Dutch state to reduce its GHG emissions by at least 25 percent by 2020. 

The state appealed the decision. The state argued that the matter was not for the Courts, but rather for the elected government to decide. But the Court of Appeal earlier this month rejected this. Put simply, the Court concluded that a target below 25 percent would breach Dutch citizens’ right to life and right to home and private life. Finding in favour of Urgenda again, the Court said: “Up until now the state has done too little to prevent dangerous climate change and is doing too little to catch up… a dangerous situation is imminent, which requires interventions being taken now.”

The challenge for New Zealand

So what does this mean for New Zealand? We have emissions reduction targets for 2020, 2030 and 2050. The 2030 target is what the Government has committed to under the Paris Agreement. According to Climate Action Tracker, this target is “insufficient”. This means it is not consistent with the aim of the Agreement to hold global warming to below 2°C, let alone the preferred target of 1.5°C. The current Government has pledged to create a more ambitious 2050 target as part of the Zero Carbon Bill. No commitment has yet been made to update the interim targets that will take us there, nor to strengthen our commitment made under the Paris Agreement.

The Government, when considering these targets, would be well-advised to take heed of the Urgenda decision. Of course, neither the Dutch judgment, nor any foreign judgment, is binding on the New Zealand courts. The case, however, reflects a growing trend by judicial bodies worldwide to scrutinise government decisions relating to climate change.

Human rights and climate change

One way of doing so, which was successful in the Urgenda appeal, is on the basis of human rights—an approach which is gaining momentum. The Philippines Human Rights Commission, for example, is currently undertaking an inquiry into the alleged responsibility of the ‘Carbon Majors’ for climate change and its impact on Filipinos’ human rights. On the other side of the world, the Inter-American Court of Human Rights recently issued an Advisory Opinion ruling that state parties must take measures to prevent significant environmental harm to individuals inside—and outside—their territory.

A legal challenge on the basis of the Bill of Rights Act therefore seems increasingly possible if our Government fails to set sufficiently ambitious emissions targets. As identified by the Dutch Court of Appeal, there is “a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life”. Our Bill of Rights Act does not have the status of supreme law. Assuming therefore that the 2050 target is included in legislation, a successful claim would not deem the target illegal—as was the case in Urgenda. It appears that the Court could, however, (pending confirmation from the Supreme Court) issue a ‘declaration of inconsistency’. This would place the onus on the state to defend the targets to the New Zealand public. Any interim targets set by the government for 2020 and 2030 could also be challenged. If these targets are not included into legislation, as is the case now, a successful claim could potentially result in them being struck down.

New Zealand’s carbon targets have been challenged in court before, and with international developments such as this, we can expect that they will be again. A Special Report released this month by the IPCC on Global Warming of 1.5ºC warned that to keep warming below 1.5ºC, global net human-caused emissions of carbon dioxide (CO2) need to fall by about 45 percent from 2010 levels by 2030. This is scientifically feasible, but governments—like ours—are not currently doing enough to make it happen.

Marjan Minnesma, the Director of Urgenda, warned that the “Court of Appeal’s decision puts all governments on notice. They must act now, or they will be held to account.” As New Zealand works towards setting a new target, it would be wise to keep this in mind, or risk further challenges in court.

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