Court case against climate commission fails
Climate-concerned lawyers failed to convince a judge that the Climate Change Commissions carbon-cutting maths was wrong. High Court justice Jillian Mallon dismissed all the grounds of review argued by Lawyers for Climate Action. She found the commission correctly interpreted the law and had the power to make the choices it did even if these were controversial. But she agreed that the commissions presentation of its analysis had the potential to mislead when discussing whether its advice aligned with efforts to limit warming to 1.5C. Its been a long wait for the High Court ruling, which came more than eight months after the judicial review hearing finished. Since the hearing, the Government has used the commissions advice to write its emissions-cutting plan . Climate Change Minister James Shaw said the undecided case influenced his decision not to ask Cabinet for a tougher carbon-cutting goal to take to the recent COP27 climate summit. READ MORE: * Scientists and most governments say fossil fuels must plummet by 2050. National's new adviser disagrees * Climate Change Commission rejects criticism in court: We knew our 1.5C maths was 'blunt' * Climate Change Commission fell "well short" in carbon-cutting advice, lawyers argue In late February and early March, lawyers debated whether the Zero Carbon Act had been followed correctly by the influential commission. The law, passed in 2019, governs how the country will transition to a net-zero economy. Lawmakers said the carbon-cutting path should contribut[e] to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5C above pre-industrial levels. Above 1.5C, the health, economic and environmental effects of climate change will be supercharged and the world is currently 1.1 to 1.2C warmer than the pre-fossil-fuel era. The commissions advice matters, because the Government uses it to set climate targets (essentially budgets for how much greenhouse gas can be emitted) and policies. Shaw also asked the commission if the 2030 climate goal New Zealands Nationally Determined Contribution or NDC at the time was consistent with global efforts to limit warming to 1.5C. When the commission released its final advice last year , it recommended a 2030 target of much more than 36% below 2005 levels by 2030. At the same time, it said its emissions budgets which would only go part of the way to meeting the NDC were compatible with contributing to the global effort to limit warming to 1.5C. And others thought the commissions proposed budgets and NDC advice did not cut carbon emissions quickly enough. The lawyers group hoped to send the commission back to the drawing board and require the Government to tighten its budgets, strengthen its NDC and update its plan with more ambitious emissions-cutting policies or admit it wasnt taking sufficient steps to align with 1.5C. In court, the lawyers pointed to a special report by climate expert body the Intergovernmental Panel on Climate Change (IPCC). The body found that, for a decent shot at 1.5C, the world must reduce its output of carbon dioxide by between 40 and 58 per cent by the end of the decade, using 2010 as a baseline. The commission's conclusions on the NDC and domestic emissions budgets relied on a controversial comparison: contrasting 2010 gross emissions (which doesnt include the carbon absorbed by forests) against 2030 net emissions (which does count trees). Seven experts, including two who worked on the IPCCs 1.5C report, criticised this comparison in written testimony to the court. Based on a gross-gross comparison, carbon emissions in 2030 on the commissions path will be about 20% lower than emissions in 2019. To justify gross-net comparisons, the commission pointed to the precedent set by the Kyoto Protocol, the predecessor to the Paris Agreement. Justice Mallon said the commission made a deliberate decision to use a gross-net comparison to assess the NDC, and explained it. The Commissions choice... was to avoid being penalised for the cycles of trees already planted. This is an argument of fairness. The commission doesnt explain this well, however. It purports to use the IPCCs work as a starting point, and states New Zealand as a developed country should do more. But then it makes a value judgment... which means that our share of reductions will be less than the global average, the ruling said. While the advice was potentially misleading, she found particularly for lay readers or anyone that did not read the full advice Mallon did not conclude a mistake had been made. While it might have been more transparent to carry out a strictly mathematical comparison and to then adjust for value judgments, the commission did not make a serious logical error that led to an irrational recommendation, she said. The commission knew what it was doing and had reasons for its approach. Notably, this advice did not mislead the minister, the judge found. Before the NDC was strengthened last year, the minister received additional advice from officials, including net-net comparisons. Justice Mallon said the commission correctly interpreted the law. She agreed that the 1.5C target in the Zero Carbon Act is more consistent with an aspiration rather than an obligation. The lawyers also criticised the commissions chosen system of carbon accounting. Known as the NDC or an activity-based approach, it counts only some sources of emissions. Exactly whats counted and excluded is still being decided. The system was picked because it smooths out the dips and peaks of plantation forests, the commission argued in court, and only counts permanent emissions reductions. Lawyers for Climate Action argued the commission should have used another accounting system, which better reflects the emissions that enter the atmosphere. Mallon found lawmakers intended that the commission would provide advice on the most suitable accounting system. Therefore, it had to right to choose and use NDC accounting, she said. The commission has sufficiently justified, on the evidence and its reasoning, its choice of accounting methodology, the judge said. Jenny Cooper, who represented Lawyers for Climate Action NZ at the hearing, was disappointed by the outcome. The ruling that there is no legal obligation to align with 1.5C that its merely aspirational is frustrating, she said. 1.5C is what the science tells us is necessary for a liveable planet, she added. If that needs to be beefed up in the act, then thats what well be pushing for. Cooper thought the commission gave a very confusing explanation on whether its advice did or did not align with 1.5C. As the court found, it certainly wouldnt be obvious to most readers exactly what they had done. A lot of members of the public even those who submitted would be really disappointed to learn that the advice wasnt in line with the IPCCs 1.5C pathways. Lawyers for Climate Action had not decided whether to appeal the judgment or not, Cooper said. The commission said, in a statement, it would review the judgment to understand if there were any implications for its work and advice. We stood by our advice through the court process and maintained that claims we are not sufficiently ambitious are wrong and misrepresent our advice. Minister Shaw welcomed the ruling. I have always regarded the advice [the commission] has provided the Government as exceptionally high quality, he said in a statement. Asked by Stuff about updating the NDC, Shaw is open to the idea of reviewing it or the Zero Carbon Act but he wants to get advice from officials first. We could do one or either of those two things or we could do neither. Shaw said 1.5C compatibility should be a primary consideration under the law. On the judges comments about potentially misleading analysis, Shaw said it would be helpful to review how things are explained. We should always be looking for ways of making this more transparent. The case tested the system and settings. Its really important for people to be able to challenge the government, he said. Stay on top of the latest climate news. 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