Lawyers for Climate Action NZ Inc says the Members’
Bill lodged by Joseph Mooney seeking to prohibit tort claims
arising from or related to climate change matters raises
serious issues for both the environment and the
constitutional role of the courts.
Lawyers for Climate
Action is dismayed that the National Party supported Joseph
Mooney to lodge the controversial Bill, and it calls on MPs
not to support the Bill if ever drawn from the
ballot.
The Bill seeks to insulate climate polluters
from liability for the damage done by their emissions. The
effect will be that the costs of climate change, such as
loss of property to rising sea levels, will fall on
individuals and taxpayers without the ability to seek
compensation from domestic or international businesses that
have profited from continuing to emit greenhouse gases,
despite knowing the damage it is causing.
This would
not only disincentivise steps to reduce emissions but would
cut across the court’s legitimate constitutional role in
developing the common law, including its ability to
determine a case currently before it.
The
constitutional role of courts
If turned into law, the
Bill would represent significant constitutional overreach by
Parliament and would join other constitutionally egregious
legislation promoted in recent history.
The common law
and the courts have critical roles to play in ensuring that
humanity and the rule of law survive the climate crisis.
Parliament should not cut the court’s legitimate role off
at the knees.
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The climate crisis is novel, but the
courts’ ability to develop the common law in response to
existential crises is not. For example, courts developed the
law of nuisance in response to the pollution crisis that
arose in the wake of the Industrial Revolution.
The
existence of climate change legislation and the Emissions
Trading Scheme does not, and should not, preclude a role for
the common law. Much like many other areas of law, common
law and legislation can and do develop side by side, each
informing the other.
This Bill raises even
more fundamental issues with the role of the law. As we said
in our submission to the Supreme Court in Smith v Fonterra,
where there is a wrong, the law should provide a remedy.
This is especially so where the wrong infringes on
fundamental human rights – as climate change does. If the
law fails to provide any mechanism for plaintiffs seeking
redress or to curb the harm being caused by emissions, then
the relevance and the legitimacy of the law will be at
risk.
Blatant attempt to override the
Supreme Court
This Bill is a blatant attempt to
prevent Mike Smith’s proceeding against seven of New
Zealand’s largest emitting companies from going to trial –
raising significant access to justice issues.
In doing
so, it flies in the face of the Supreme Court’s ruling in
February 2024 that Mr Smith’s case was arguable, and that
he should “get his day in Court”.
It also ignores
the Supreme Court’s conclusions on the potential for tort
law to respond to climate and environmental challenges. The
Supreme Court was clear that the “principles governing
public nuisance ought not to stand still in the face of
massive environmental challenges attributable to human
economic activity”.
Importantly, the Supreme
Court’s judgment in Smith v Fonterra did not represent a
radical change in the law. The Court did not create a new
right of action but rather applied well-established
strike-out principles to find that Mr Smith had a reasonably
arguable claim based on the long-standing (if rarely used)
rules of public nuisance.
This Bill is an overreaction
to the Supreme Court’s finding, which itself highlighted
that Mr Smith’s claim “may face obstacles”. Iits
impact would go far beyond the scope of Smith v Fonterra. It
would prevent the possibility that courts could ever develop
tort law in response to climate change.
We urge MPs to
not support the Bill.
About Lawyers for Climate
Action NZ Inc
Founded in 2019, Lawyers for Climate
Action NZ is a group of lawyers with the shared mission of
using the law to drive effective climate action. We advocate
for law and policy reform, bring strategic climate
litigation, and have built a community of climate-conscious
lawyers across Aotearoa, developing a skill base within the
legal profession to help accelerate the net zero transition.
We now have over 370 members, including Kings Counsel,
barristers, solicitors and legal academics. Lawyers for
Climate Action NZ appeared as intervener in Smith v
Fonterra.
