While the US has by far the most cases, topping the charts with 1,522 cases, according to the UN Environment Programme report, Australia comes in second with 127 cases, and New Zealand takes 8th place with 26 cases.

James Every-Palmer KC, Lawyers for Climate Action NZ, has worked on important climate cases locally, including the recent judicial review of the government’s decision-making around Emissions Trading Scheme settings.

Every-Palmer says the case was important to reverse poor decision-making by the government as well as to restore long-term credibility to the ETS.

“While there is still a lot of uncertainty around ETS reform (forestry), the judicial review decision and Cabinet’s reconsideration of the issue last week have resulted in the unit price nearly doubling as there is increased confidence future governments will limit unit supply in line with our budgets.”

Lawyers for Climate Action’s judicial review of the Climate Change Commission last year was also important for calling out the Commission on the level of ambition in its advice, Every-Palmer says.

The group is appealing the case, but as the High Court found, neither the nationally determined contribution (NDC) nor our emissions budgets “put New Zealand on track to reduce domestic net emissions by 2030 as per the IPCC global pathways”. In this respect, the Commission’s advice was potentially misleading, Every-Palmer says.

The Court found that the statutory purpose to contribute to the global 1.5 ̊C effort was more consistent with an “aspiration” rather than an “obligation”.

The Court of Appeal will re-consider this issue at the end of the year. “It has the potential to significantly increase the level of ambition that must be built into our emissions budgets,” Every-Palmer says.

Lawyers for Climate Action has also been involved in Smith v Fonterra, a potential tort liability on seven large emitters including the dairy co-operative giant and Z Energy.

The group has worked on cases attempting to require climate change to be adequately taken into account in transportation and petroleum exploration decisions. “We are also interested in the accuracy of climate related disclosures and the climate-friendly claims made by various businesses (greenwashing).”

Almost all the legal work and expert evidence in this area is done for free, Every-Palmer says. 

“LCANZI thinks it is important to develop a paid ecosystem for climate change work, particularly for junior lawyers who want to be involved and for experts to be properly remunerated.”

The group is aiming to appoint a paid executive director, as well as actively fundraising to support the likely increase in litigation.

Corporate responsibility for climate harm

Matt Hall, of the Environmental Law Initiative (ELI), says Smith v Fonterra, which is currently at the strike out stage in the Supreme Court, is one of the most important cases of recent years. “If successful, this case could establish a new tort in relation to corporate responsibility and climate harm.”

If the case is allowed to proceed to trial, it will open the way for many other activists to bring similar proceedings against other enterprises - including private companies and government entities.

Hall and Megan Cornforth-Camden are spearheading ELI’s efforts in litigation against corporates. “We see this area as our niche for climate change litigation.”

ELI has yet to bring a climate change related case, but has “a number of active projects” examining corporate responsibility in relation to climate change.

The group sees climate litigation is very important for a number of reasons. “The climate crisis is such an existential threat that all facets of civil society need to be brought to bear on it.”

Litigation is a useful practical tool for driving change. “For example, it can be used to ensure that companies are complying with national laws relating to climate change such as laws on greenwashing. The threat of litigation also increases corporate risk, which in New Zealand now needs to be disclosed under the mandatory climate-related disclosures legislation.”

Hall says climate litigation will increase in frequency and volume over the foreseeable future.

“As the 'global boiling' phenomenon continues, we anticipate increased litigation against companies that are profiting from fossil fuel extraction and use. It is likely we'll see ever more urgent and novel claims, and an increased willingness on the part of the judiciary to hear such claims.”

Climate cases heating up

Every-Palmer agrees that we can expect to see the number of court cases rise as global heating continues to intensify. “As we enter into the period of climate consequences, people are increasingly turning to the courts to hold governments and businesses to account for the basic duty to protect citizens from harm.”

While climate change is a new issue for the courts, Every-Palmer says the concerns being expressed resonate with the traditional role of the courts: “In protecting human rights, internalising the costs of accidents, and insisting on transparency and accountability in public decision-making."

Courts are also used to dealing with complex scientific evidence and acting on the best information available.

While judges have a natural inclination that climate response is inherently an issue for elected politicians, the courts have a number of institutional advantages, Every-Palmer says.

“It is difficult for the executive and legislative branches of government to take appropriate action on climate change. Taking climate action will often impose short term costs, for the benefit of future generations. Short term electoral cycles do not support that kind of thinking.”

Courts in The Netherlands and Germany have shown the way by requiring their governments to increase the level of ambition in their emissions reduction plans to a level consistent with their share of the global reductions, Every-Palmer says.

“If other countries follow suit, then this provides a solution to the slow rate of change and the collective action problem.”