Monday, March 29, 2021

Challenging climate change in the courts

One of the innovations of the Zero Carbon Act was a clause specifically allowing public bodies (or bodies performing public functions) to consider climate change targets and reduction plans in their decision-making. It was phrased as a "permissive consideration": they didn't have to. But as we've seen from the Thames-Coromandel District Council case, failing to do so may itself be found to be irrational and result in a decision being overturned. The intent of the clause was to allow NGOs to challenge government decision-making, and hold the government to its targets and plans. And its about to get its first test, with a legal challenge to a major Auckland road project:

Auckland councillor Chris Darby says a legal challenge against the $1.4 billion Mill Road project by climate change advocates All Aboard Aotearoa is a sign of what's to come.

The group applied for a judicial review of the Waka Kotahi NZTA-led project in the High Court in Wellington on Thursday.

The 21.5km proposed Mill Rd arterial route, which would provide an alternative road between Manukau and Drury, would run parallel to and east of State Highway 1. Construction was expected to start next year and be completed by 2028.


Lawyers for Climate Action's Jenny Cooper said with nine years left to halve New Zealand emissions as required under the Paris Agreement and Zero Carbon Act, the government must stop building and financing more roads.

Waka Kotahi NZTA should have at least as much of a duty as a local council to consider climate change, so the challenge is likely to hinge on whether they seriously considered the project's impact on emissions. Whichever way it goes it will be precedent-setting, establishing the ground rules for such challenges in the future. And if its unsuccessful, we can expect a member's bill to shift that permissive consideration to a mandatory one in short order, and intense pressure on he government to back it.