Lawyers for Climate Change Action NZ Incorporated v Climate Change Commission [2023] NZCA 443 (13 September 2023)

Last Updated: 18 September 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA714/2022 [2023] NZCA 443

	BETWEEN	LAWYERS FOR CLIMATE CHANGE ACTION NZ INCORPORATED Appellant
	AND	CLIMATE CHANGE COMMISSION First Respondent MINISTER OF CLIMATE CHANGE Second Respondent

Hearing:	26 June 2023
Court:	Gilbert, Courtney and Katz JJ
Counsel:	J D Every-Palmer KC for Appellant V E Casey KC and H M L Farquhar for First Respondent A L Martin and H T N Fong for Second Respondent
Judgment:	13 September 2023 at 3 pm

JUDGMENT OF THE COURT

1. The application to adduce further evidence is declined.
2. Costs are reserved.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

• [1] This judgment responds to an application by Lawyers for Climate Action NZ Inc (LCANZ) to adduce further evidence in support of its appeal.

High Court proceeding

• [2] LCANZ applied for judicial review of advice, published in its final form on 31 May 2021, by He Pou a Rangi | the Climate Change Commission to the Minister of Climate Change pursuant to the Climate Change Response (Zero Carbon Act) Amendment Act 2019 (the Act).^[1] The challenge focused on two parts of the Commission’s advice, referred to in the High Court judgment as “the NDC Advice” and “the Budgets Advice”.^[2]
• [3] The NDC Advice concerned whether an international commitment made by New Zealand in 2016 as to the level by which it would reduce its greenhouse gas emissions by 2030 — referred to as the 2016 Nationally Determined Contribution (the 2016 NDC) — was consistent with global efforts to limit global warming to 1.5ºC above pre-industrial levels. The Commission advised that the 2016 NDC was not consistent with the 1.5ºC global effort and provided advice on the level of commitment that would be compatible with it.^[3]
• [4] The Budgets Advice concerned budgets for New Zealand’s emissions of all greenhouse gases from 2022 onwards. These budgets set the quantity of the emissions permitted for specific periods.^[4]
• [5] LCANZ advanced four grounds in its application for judicial review:

(a) error of logic;

(b) misapplication of statutory purpose and criteria;

(c) error of law in recommending that the Minister use an incorrect accounting methodology for measuring progress towards meeting emissions budgets and targets; and

(d) unreasonableness.

• [6] The hearing in the High Court took place in late February and early March 2022. Mallon J dismissed the claims for reasons set out in her reserved judgment delivered on 23 November 2022. LCANZ’s appeal against the judgment is scheduled to be heard later this year.

The proposed further evidence

• [7] LCANZ now applies to adduce further evidence in support of its appeal, being extracts from three reports of the Intergovernmental Panel on Climate Change (IPCC) and one report of the Ministry for the Environment | Manatū Mō Te Taiao (MfE). These reports were all released after the High Court hearing.
• [8] The IPCC is the United Nations’ body for assessing the science relating to climate change and its objective is to provide governments with scientific information they can use to develop climate change policies.^[5] Its current (sixth) assessment report comprises four reports, one by each of its three working groups and an overall synthesis report.^[6] Each of these reports contains an introductory summary for policy makers. The summary from the first working group report (physical science), released on 9 August 2021, was placed before the High Court, and is included in the case on appeal.^[7] LCANZ wishes to produce as updating evidence the equivalent summaries for the other three reports (adaptation report dated 28 February 2022,^[8] mitigation report dated 4 April 2022,^[9] and synthesis report dated 20 March 2023^[10]). LCANZ submits that these reports provide an up-to-date picture of the effects of climate change and the action needed to combat it. It says the reports will help this Court understand the complex and multi-faceted issue of climate change.
• [9] The MfE report was published in December 2022.^[11] It records New Zealand’s historical and projected greenhouse gas emissions and trends, progress towards meeting its emissions reductions targets, and policies and measures implemented to address climate change. LCANZ notes that this report uses greenhouse gas inventory (GHGI) accounting, as opposed to the modified activity-based measure (MAB) accounting recommended by the Commission. It says the report provides cogent evidence of what it contends is an inadequate level of ambition in the Commission’s recommended emissions budgets.

Positions of the respondents

• [10] The Commission opposes the application. Because the reports post-date its advice, the Commission says they cannot be relevant to the grounds of review advanced in the High Court and will not assist this Court in determining the appeal.
• [11] The Minister does not oppose the application but reserves his position on the weight to be placed on these reports, given they were published after the hearing in the High Court and were not available at the time of the impugned advice.

Applicable principles

• [12] The criteria for the admission of new evidence on a civil appeal are well‑established. The evidence will generally not be admitted unless it is fresh, credible, and cogent. Evidence that is not fresh should not be admitted unless the circumstances are exceptional and the grounds compelling.^[12]

Is the evidence cogent?

• [13] The evidence is plainly fresh and credible. The sole issue on this application is whether the evidence is cogent, given it was not available to the Commission at the time it formulated its advice.
• [14] The further evidence is said to be relevant to two of the four grounds of review advanced in the High Court, being alleged misapplication of statutory purpose and criteria (the second ground) and unreasonableness (the fourth ground). In the introductory section of her judgment, the Judge succinctly summarised these grounds and her reasons for dismissing them.
• [15] The Judge summarised the second ground as follows:^[13]

... [LCANZ] says that the Commission wrongly grouped the mandatory statutory considerations and adopted “economically affordable” budgets rather than the statutory requirement to recommend budgets that are “ambitious but likely to be technically and economically achievable” and that would meet the statutory purpose of contributing to the global 1.5ºC effort.

• [16] The Judge rejected that claim on the basis that:^[14]

The Commission did not misinterpret the statutory purpose, as it correctly understood that the emissions budgets should be set having regard to the mandatory relevant considerations and with both the 2050 Target [set by the Act, the principal aspect of which is that New Zealand’s net emissions of greenhouse gases, other than biogenic methane, must be zero by 2050] and contributing to the global 1.5ºC effort in mind. The Commission also correctly applied the mandatory relevant considerations and did not mischaracterise them.

• [17] The Judge’s summary of the fourth ground was as follows:^[15]

... LCANZ contends that the Budgets Advice was irrational, unreasonable and inconsistent with the legislative purpose of contributing to the global 1.5ºC effort. It says the Commission’s recommended budgets will see emissions increasing over the next decade and are inconsistent with reductions the 2018 Special Report says are necessary between 2010 and 2030 for the global 1.5ºC effort. It also says the Budgets Advice was inconsistent with the Commission’s analysis as to the NDC that what would be consistent with the global 1.5ºC effort and New Zealand’s fair share of the global budget as a substantial past emitter and a developed country. Finally, it says that the Commission failed to address the relative costs, benefits and risks of further domestic reductions as compared with the proposed purchase of offshore mitigation to meet New Zealand’s NDC.

• [18] The Judge summarised her reasons for rejecting this claim:^[16]

The Commission’s Advice was not irrational or unreasonable. The value judgments on which the NDC Advice [was] based reflected New Zealand’s particular circumstances as a developed country, but with significant commercial forestry with cyclical swings sequestering carbon from the atmosphere and then releasing it. The [MAB] methodology was intended to provide a clear signal and stable basis on which to drive climate change action rather than relying on removals of carbon from existing forestry. The Commission’s reasons and [the] material on which [they were] based supported its choice of [MAB]. The Budgets Advice reflected the same reasoning and material.

LCANZ was correct that neither the NDC Advice nor the Budgets Advice put New Zealand on track to reduce domestic net emissions by 2030 as per the IPCC global pathways but the legislation did not require this in order to contribute to the global 1.5ºC effort. There were a range of considerations the Commission was required to take into account. Amongst other things, the Commission concluded that there was the risk of severe social and economic impacts on New Zealand communities, people and businesses, with legacy impacts on other generations and Māori, by trying to make a contribution solely through domestic action at this early stage of New Zealand’s transition to a low emissions economy. The Advice would put New Zealand on track to reach the net zero carbon target sooner than the 2050 Target. The Commission’s reasoning and the material on which [it] was based justified its Advice. No error in that reasoning or the material on which it was based has been shown.

• [19] MAB accounting was the methodology used by the Commission, and recommended to the Minister, to account for net emissions in its recommended emissions budgets and in assessing progress towards meeting the budgets and the net zero 2050 target. In the third ground of review, LCANZ claimed the Commission erred in law by using MAB, contending that the Act mandates national inventory reporting based on data tables contained in New Zealand’s GHGI. The choice of accounting methodology matters because the GHGI number represents what the atmosphere sees whereas LCANZ says MAB “tilts” the trajectory for net emissions by making historic net emissions look worse than they actually were and net emissions in the 2025–2035 period look better than they actually will be. For example, the 2010 MAB number is higher than the reality of what the atmosphere sees, and the 2030 MAB number is lower. This may indicate that New Zealand is doing more between 2026 and 2030 to reduce emissions than is the reality. Conversely, the position reverses from 2036.^[17]
• [20] LCANZ observes that the MfE report uses the GHGI measure and argues this report provides cogent evidence of the inadequate level of ambition in the Commission’s recommended emissions budgets in terms of what the atmosphere actually sees. For example, one of the tables in the report shows a 12.1 per cent projected decrease in New Zealand’s gross emissions between 2010 and 2030 when excluding emissions and removals from the land use, land use change and forestry sector and a 13.1 per cent increase in net emissions over the same period when including emissions and removals from the land use change and forestry sector.^[18]
• [21] We accept the Commission’s submission that the new evidence cannot have any material bearing on the outcome of the appeal and it is therefore not cogent. Because none of the reports was available at the time the Commission provided its advice to the Minister, they cannot assist with the analysis of the grounds of review pursued in the High Court. The appeal is necessarily confined to those same issues and the lawfulness of the advice based on the information available to the Commission at the time.
• [22] While the IPCC reports provide updating evidence about the threat of climate change and the action needed to combat it, there is no dispute between the parties about the seriousness of the threat or the urgent need for action requiring fundamental changes both domestically and globally.
• [23] As for the MfE report, the Judge accepted LCANZ’s evidence and submissions highlighting the significance of the accounting methodology in assessing emissions reductions required to meet targets.^[19] In rejecting this aspect of LCANZ’s judicial review challenge, the Judge found that the Act does not “hard-wire” the accounting methodology to be used for tracking progress towards emissions targets.^[20] This is a question of law and LCANZ accepts that the further evidence will not assist in its resolution.
• [24] Mr Every-Palmer KC, for LCANZ, submitted that the MfE report may be particularly relevant in the context of the notice filed on behalf of the Commission of its intention to support the judgment on other grounds. However, the notice relates only to the fourth ground of review and is concerned with whether the appropriate standard of review is Wednesbury unreasonableness rather than the more exacting standard applied by the Judge.^[21] The MfE report will not assist with the resolution of that issue, which is a question of law. In response to questions from the Court, Mr Every-Palmer submitted that the MfE report will assist in two ways. First, it demonstrates the orthodox use of the accounting methodology urged by LCANZ. Secondly, it provides a useful cross-check which broadly confirms the evidence given by Dr William Taylor on behalf of LCANZ in the High Court. However, the Judge accepted this evidence and the Commission’s notice to support the judgment on other grounds does not raise any challenge to it.
• [25] We are therefore not persuaded that the MfE report will provide any material assistance to the Court in the determination of this appeal.
• [26] For these reasons, we conclude that the proposed evidence is not cogent and should not be admitted.

Result

• [27] The application to adduce further evidence is declined.
• [28] Costs are reserved.

Solicitors:
Gilbert Walker, Auckland for Appellant
Luke Cunningham Clere, Wellington for First Respondent
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Second Respondent

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^[1] He Pou a Rangi | Climate Change Commission Ināia tonu nei: a low emissions future for Aotearoa (31 May 2021) [Final advice].

^[2] Lawyers for Climate Action NZ Inc v Climate Change Commission [2022] NZHC 3064 [High Court judgment] at [3] and [6].

^[3] Final advice, above n 1, at chs 21–22.

^[4] At chs 5–8.

^[5] Intergovernmental Panel on Climate Change “About the IPCC” <www.ipcc.ch>.

^[6] Intergovernmental Panel on Climate Change “AR6 Synthesis Report: Climate Change 2023” <www.ipcc.ch>.

^[7] Intergovernmental Panel on Climate Change Climate Change 2021: The Physical Science Basis – Summary for Policymakers (7 August 2021).

^[8] Intergovernmental Panel on Climate Change Climate Change 2022: Impacts, Adaptation and Vulnerability – Summary for Policymakers (28 February 2022).

^[9] Intergovernmental Panel on Climate Change Climate Change 2022: Mitigation of Climate Change – Summary for Policymakers (4 April 2022).

^[10] Intergovernmental Panel on Climate Change Climate Change 2023: Synthesis Report – Summary for Policymakers (20 March 2023).

^[11] Ministry for the Environment | Manatū Mō Te Taiao Te Rīpoata Taurua Tuarima o Aotearoa: New Zealand’s Fifth Biennial Report under the United Nations Framework Convention on Climate Change (December 2022) [MfE report].

^[12] Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192–193; and Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].

^[13] High Court judgment, above n 2, at [8] (footnote omitted).

^[14] At [11(b)].

^[15] At [10].

^[16] At [11(d)].

^[17] At [270]–[271].

^[18] MfE report, above n 11, at 49.

^[19] High Court judgment, above n 2, at [272].

^[20] At [255].

^[21] The Judge applied a standard which involved examining whether the challenged decisions had been reached on sufficient evidence and had been fully justified, while recognising that reasonable decisions makers could reach different decisions: [75]–[76], citing Kim v Minister of Justice [2017] NZHC 2109, [2017] 3 NZLR 823 at [13] and [15]; and Kim v Minister of Justice of New Zealand [2019] NZCA 209, [2019] 3 NZLR 173 at [45]–[47].