His comments came in the opening minutes of submissions from the Crown in response to a judicial review application by Lawyers for Climate Action and the Environmental Law Initiative, challenging numerous elements of the ways both Emissions Reduction Plans 1 and 2 (ERP1 and ERP2) occurred.

Justice Boldt described the applicants as having “a very strong case” for challenging the process, even though ERP1 now applies to a period that ended in 2025.

Crown counsel Polly Higbee had begun by outlining the longer history of climate change policy-making, stretching back to the Clark, Key and Ardern governments.

That had seen net zero carbon ambitions progressively strengthened, without agreement on how upgraded targets would be met or on issues such as whether to subsidise decarbonisation through policies such as the GIDI fund or Clean Car Discount.

Both were among policies the new government abolished, along with a brace of other policies that underpinned ERP1, without prior consultation.

Justice Boldt acknowledged that but said: “My reading of the relevant provisions in the Act requires … first of all, the ERP has to set out policies and strategies for meeting the relevant Emissions Budget and may further say what will happen in the two budgets after that.

“It’s supposed to be a one-stop shop for New Zealand’s climate policy at any given moment.”

It required “a willingness to listen and be open-minded” when making changes to an ERP.

“The applicants’ case, and it seems to be a very strong case, is that none of these things were done,” said Justice Boldt, who described the changes to ERP1 as being “as fundamentally flawed a process as I have ever seen”.

While Higbee argued that no new government could be bound by the decisions of its predecessors, Justice Boldt said the Climate Change Response Act required that “in deciding to implement policy changes, it needs to through a process”.

That amounted to a new government needing to “take a deep breath”.

“Don’t barrel in and do everything in the first 100 days because you promised you would. You say: look, these are the policies we are thinking about, we need to get public feedback on it, they’re not set in stone.

“We need to make decisions in accordance with what we hear from the community and have to have an open mind.”

“Those are all requirements of the Act,” he said. “If you still think those are the best policies, go for your life.

“But you can’t enter the process with an immovable set of steps you are going to take, come what may.

“That, on its face anyway, is as fundamentally flawed a process as I think I’ve ever seen.”

Earlier in the hearing, Justice Boldt had laughed and shaken his head when the claimants’ counsel, James Every-Palmer KC, had read out sections of official advice on how the government would proceed if it risked undershooting its targets.

A draft chapter from officials on adaptive management concluded only that “Cabinet will develop a proportionate response to get us back on track”.

Those were not policies, but rather “just words,” Every-Palmer submitted.

“Alright, you don’t need to say anymore,” the judge said.

Equal opportunity scepticism

Justice David Boldt’s sceptical eye had been trained on the claimants’ submissions earlier in the morning.

Every-Palmer struggled to convince the judge that any breach of the Paris agreement had occurred, or that there was a clear directive in the Climate Change Response Act to favour emissions reductions over removals, such as by forestry.

The claim alleges that changes to ERP1, which ran from 2022 to 2025, were not subject to sufficient consultation, since any consultation occurred after some 30 previously operating climate change policies had been overturned by the coalition government after its election in 2023.

That left ERP2 deficient, Every-Palmer argued, because it acknowledged that under-shooting targets for the Emissions Budget 2 period, 2026-30, would require adaptive management policies, none of which had been developed in detail.

However, Boldt pushed back at the suggestion this constituted a breach of the Paris agreement or that a breach was an issue in this action, given the absence of reference to the agreement in the relevant legislation.

Every-Palmer argued that compliance with the Paris agreement should be regarded as a “relevant mandatory consideration” for the minister because of the obligations NZ had signed up to.

However, Justice Boldt said: “I’m not convinced there is a link to Paris.”

Rather, much of the evidence presented by the claimants, sourced from reputable scientists, amounted to “taking pretty unremarkable and well-known scientific conclusions and bundling them into policy recommendations”.

It could not be argued, for example, that there was anything novel about the argument that emissions removals using forestry planting was neither a permanent removal solution, nor one subject to risks such as fires.

“I can’t conceive that that wasn’t well understood at the time the 2019 amendments [to the Climate Change Response Act by the previous government] were passed,” he said.

The hearing is scheduled to conclude today.