The Court has sent a strong signal that local authorities signing up to the Local Government Leaders’ Climate Change Declaration (‘Local Declaration’) could expect legal consequences if they don’t follow through on their commitments. This could potentially be extended to cover Parliament’s recent declaration of a climate emergency.

The case

Last December in Hauraki Coromandel Climate Action Incorporated v Thames-Coromandel District Council [2020] NZHC 3228, Justice Palmer upheld Hauraki Coromandel Climate Action (‘HCCA’)’s application for judicial review of the Council’s decision to not approve Mayor Sandra Goudie signing the Local Declaration.

The Local Declaration was drafted by Local Government New Zealand (LGNZ) and circulated to mayors and regional council chairs in the lead up to COP21 in December 2015. It called for an urgent and holistic approach to address climate change and included a number of ‘Council Commitments’, including to develop and implement ambitious action plans to reduce greenhouse gas emissions. By 2017, around 65 mayors and chairs signed the Local Declaration.

The exact legal status of the Local Declaration was unclear. LGNZ thought that it was a non-binding leaders’ declaration. In a report to the Council, Mayor Goudie stated that the Local Declaration is “a potentially binding document as it commits the Council to developing and implementing an ‘ambitious plan’.” The Mayor believed that signing the Local Declaration would come with enforceable obligations to take action on climate change. She suggested that the Council resolve to receive the report and continue to take action, following a robust decision-making process, in response to climate change.

Another Councillor countered this proposal and moved that the Council approve the Mayor signing the Local Declaration. That motion was lost. Instead, the Council adopted the Mayor’s suggestions. HCCA argued the Council should have approved the Mayor signing the declaration. They agreed with the Mayor that signing the Local Declaration would give rise to a legally enforceable legitimate expectation that the Council will follow through on its climate change commitments. Palmer J agreed with HCCA and agreed with their submission that the Council did not follow proper decision-making processes before reaching its decision, making the decision unlawful.

His Honour ruled that “decisions about climate change deserve heightened scrutiny on judicial review, depending on their context” and that “the potential and likely effects of climate change, and the measures required to mitigate those effects, are of the highest public importance”. He concluded that “the intensity of review of decisions about climate change by public decision-makers is similar to that for fundamental human rights. Depending on their context, decisions about climate change deserve heightened scrutiny. That is so here.”

The declaration “now serves as a directive to all aspects of the public service around the urgency that we as a Government require and the urgency that we require around action"

New Zealand courts take a wide view of the extent of the powers, privileges and duties that could be subject to review, which is designed to curtail potential abuses of power. In this case, Palmer J found that the rights and duties of citizens and ratepayers could be affected by the decision to sign (or in this case, not sign) the Local Declaration, making it reviewable. He also found that the decision was important enough to trigger the Council’s Significance and Engagement Policy, which wasn’t followed before making the decision.

The courts’ position on climate change policy

This isn’t the first time courts have considered the justiciability of decisions involving climate change. In Thomson v Minister for Climate Change Issues [2018] 2 NZLR 160, Justice Mallon considered whether the Minister was wrong not to re-evaluate the government’s 2050 target for reducing greenhouse gas emissions in light of the fifth Assessment Report (‘AR5’) of the Intergovernmental Panel on Climate Change (‘IPCC’). AR5 was published in stages between September 2013 and November 2014 and is the most comprehensive assessment of scientific knowledge on climate change since AR4 was published in 2007.

After an extensive review of New Zealand’s climate change commitments, both internationally and domestically, Mallon J agreed that the Minister would be obliged to consider whether AR5 materially alters the information against which the existing 2050 target was set and whether a review is required.

This is in line with other courts around the world which have recognised that decisions on climate change are and should be subject to judicial review.

What does this mean for decision-makers?

The question now is whether this will extend to Parliament’s recent declaration of a climate emergency. In her speech supporting her motion, Prime Minister Jacinda Ardern said that the declaration “now serves as a directive to all aspects of the public service around the urgency that we as a Government require and the urgency that we require around action.” Ministers and government officials are expected to put climate change at the forefront of their minds when making decisions.

This is at odds with the Prime Minister’s announcement in July 2019 that “a declaration in Parliament in itself actually doesn’t functionally change what’s being done on the ground”, which is echoed in National’s current objections to the Parliamentary declaration. Practical and sensible solutions are needed, said National’s climate change spokesperson, Stuart Smith MP, not “extreme policies”.

But the Prime Minister’s current approach is in line with the court’s attitude towards local government commitments. Local authorities have the choice to sign up (or not) to the Local Declaration. Once they do, they may be legally bound to follow a list of binding Council Commitments, although these are likely to be interpreted in the context of the general purpose and functions of local government in the Local Government Act 2002, including economic considerations. Even if they don’t sign the Local Declaration, they may still be obliged to consult or consider consulting, their constituents before making decisions on climate change policy and action.

The status of the Parliamentary declaration is less clear cut. Parliament has approved the declaration and in a sense the directive to put climate change to the forefront of Ministers’ minds when making decisions. But this is much more abstract than a pledge to adhere to a prescribed list of commitments.

The potential success of a judicial review claim will depend on the nature and circumstances of an individual case. Non-compliance with either declaration is unlikely to be fatal on its own except in the most extreme cases. It is only one criteria that decision-makers must consider. It will be an important one, but it will not necessarily act as a trump card against all Ministerial decision-making. Many other factors will be at play and these will often be embedded in the legislation empowering the Minister to make the decision. Climate change considerations will not give Ministers carte blanche to ignore considerations required by Acts of Parliament or to make unreasonable decisions.

The overhaul of the Resource Management Act may change where climate change sits in the hierarchy of decision-making considerations for both central and local government, particularly if the Government goes ahead with the Managed Retreat and Climate Change Adaptation Act. For example, the Act would change the way local authorities deal with infrastructure management by elevating climate change adaptation to the top of the list of considerations for decisions in coastal areas. For now, the priority of climate change is unclear but decision-makers at all levels should be alive to the possibility of a successful legal challenge if they refuse to factor it into their decision-making at all.

Since this article was written, Franks Ogilvie has been instructed by Thames-Coromandel District Council in this matter.