Why the Climate Change Commission is being taken to court
ANALYSIS: After a week in the High Court, climate-concerned lawyers could force the Government to make more ambitious cuts to greenhouse gas. Last year, the independent Climate Change Commission proposed cuts to net emissions of 7 per cent by 2025, 20 per cent by 2030 and 35 per cent by 2035. In response, the Government indicated it will set slightly looser domestic targets out to 2025, but tougher cuts in later years. It will also top up domestic action by paying other countries for carbon-cutting efforts. Around the same time, the international expert body on climate change warned that the window to limit global heating to 1.5 degrees Celsius one goal of the Paris Agreement is rapidly closing. In an earlier report, the Intergovernmental Panel on Climate Change (IPCC) said the world would need to cut carbon emissions by 45 per cent by 2030 and reach net-zero emissions by 2050 to achieve 1.5C. In response to these alerts, Lawyers for Climate Action NZ is challenging a number of choices underpinning the Climate Change Commissions advice. A High Court judge will be asked to determine whether these are consistent with international and national law, such as the Zero Carbon Act . If the judge finds errors have been made, the commission could be asked to correct them likely requiring the country to take much more ambitious action. READ MORE: * COP26: New Zealands new climate pledge is a step up, but not a fair share * Legal action against the Climate Change Commission: Necessary, influential and helpful * Climate Change Commission report: A climate finance perspective Lawyers for Climate Action, a non-profit with more than 300 members of the legal profession, claim the Climate Change Commission has made three fundamental errors. The lawyers argue the commission has misinterpreted the Zero Carbon Act . The law requires the commission to suggest carbon budgets to bring emissions down to net zero by 2050 and to contribute to global efforts to limit warming to 1.5C. The law requires these budgets that are ambitious but likely to be technically and economically achievable. The commissions budgets put domestic pollution on a path to reach net zero by 2050 everyone at the hearing agrees on this. However, the lawyers will make the case that the criteria to contribute to the 1.5C target requires much more action in this decade. Under the commissions roadmap, gross emissions from all sources of carbon dioxide will be capped and start to fall between now and 2030. But net emissions a figure that includes all the carbon dioxide absorbed by trees and emitted from harvests wont follow suit. That's because the country planted vast tracts of plantation forests in the 1990s to meet its obligations under the Kyoto Protocol agreement to prevent global heating. These forests are now due to be harvested, a point when the carbon stored within them is added back into the atmosphere, under international carbon accounting rules. The lawyers believe the commission has put too much emphasis on the economically achievable principle and not enough focus on making the budgets ambitious and aligned with global temperature goals. Since these principles are enshrined in the Zero Carbon Act , a judge could rule that the commission made an error in not weighting these appropriately. The commission, which provided a short written comment while the matter was before the courts, disputed the claim its advice was insufficiently ambitious. A second, related argument focuses on the commissions analysis to determine if New Zealands emissions-cutting plan is compatible with the 1.5C goal. In its final advice, the commission modelled what will happen to carbon dioxide (excluding other greenhouse gases such as methane and nitrous oxide) out to 2050. The IPCC advised that, compared to 2010 levels, carbon dioxide emissions needed to fall by between 40 and 58 per cent to give the world a decent shot at 1.5C. The Climate Change Commission noted under its roadmap, New Zealands net emissions (including forests) would fall 55 per cent but it used gross emissions (excluding forests) as a baseline. This is known as gross-net accounting, and critics say its like comparing apples and oranges. The lawyers will argue that the IPCC report uses 2010 net emissions as a baseline, so the commission must do as well. The group notes there is precedent from other agencies: Statistics NZ used net-net comparisons for its analysis of the IPCCs work. For New Zealand, the IPCCs choice of 2010 as a baseline is inconvenient. Net carbon dioxide levels were dipping in that decade, reaching a low point in 2010, before starting to rise again. From where emissions sit today, carbon dioxide output would have to fall much more than 50 per cent to achieve that goal. The commission gives a gross-gross comparison: domestic carbon emissions will fall 21 per cent by 2030, compared to 2010 levels. But it hasnt provided a net-net figure. The lawyers have affidavits from two IPCC authors, University of Leeds professor Piers Forster and Grantham Institute for Climate Change research director Joeri Rogelj. Finally, the lawyers will dispute the commissions choice of carbon accounting methodology. Every year, the Government reports its emissions to the UN climate body, based on a standardised carbon-counting method (known as the Greenhouse Gas Inventory framework, which the commission describes as the land-based approach). But the commission didnt use this system to estimate the emissions absorbed and released by trees and other natural systems. Instead, it chose an accounting system used to set the countrys Nationally Determined Contribution (otherwise known as the NDC or activity-based approach). But the methods of this system have not been finalised yet and may not be until 2024, the commission noted in its final advice. Massey Universitys Robert McLachlan said anyone trying to understand what the NDC system included or excluded would find it ridiculously inaccessible and complex. Even so, the two accounting methods have significant differences, outlined by a graph produced by the commission. For example, the Greenhouse Gas Inventory (GHGI) approach counts the carbon absorbed by all the forests planted before 1990. The NDC approach doesnt. Therefore, in 1990, theres a gap of nearly 30 million tonnes between the two. The two systems are also on different trajectories: the NDC approach starts higher and falls out to 2015. Meanwhile, the GHGI approach starts low and rises out right through to the 2030s. Lawyers for Climate Action argue the NDC system doesnt represent reality, as it inflates emissions in the past and lowers emissions this decade. The group believe the law binds the commission to use the GHGI system. Commission chair Rod Carr said he is confident in his agencys advice, which would be rigorously defended during the hearing. The point of difference between the parties is how quickly emissions should be reduced between now and 2030. The [law group] argues that there ought to be deeper and steeper cuts in emissions between now and 2030, regardless of the impact, he said, in the statement. McLachlan who assisted Lawyers for Climate Action before it began legal action said unless the same accounting method was used, the countrys emissions progress is unlikely to match up to the budgets without the data being massaged. While the NDC emissions in the past show fluctuations (where the orange line in the graph spikes up and down), the commission has chosen to smooth out the emissions path from roughly 2020 onwards, he said. Effectively, the commissions choices helps to let the country off the hook for the emissions produced by the large-scale plantation harvests this decade, he added. As a result, the country wont take action consistent with the Paris Agreement, McLachlan said. The way were approaching forestry is really unfortunate and is distracting us from the need to cut fossil fuel emissions. Oxfam campaigns lead Alex Johnston said, if the judge concludes the commission made one or more errors, the commission would have to go back to the drawing board. It could be really significant in forcing the Government to step up their action. Johnston said many of arguments put forward by the lawyers were also raised by other climate organisations in response to the commissions draft plan. But even if the lawyers failed to convince the judge, the hearing will help the public to understand that the Government carbon budgets move far slower than the pace required to meet 1.5C, Johnston said. It's really clear our actions are inconsistent with the science. This case could help to put that front and centre and keep the pressure on the Government in their decision-making around the Emissions Reduction Plan, to really step up. The judicial review begins today and is expected to last until Friday. Judicial reviews dont pass judgment on whether the government body made a good decision or not. However, they can determine that agencies or officials did not follow processes and principles required under the law. At the end of the week, the judge could announce a decision. But its more likely that a written judgment will be released a few weeks after the hearing concludes.