Climate litigation: Holding the government to account for delivering an effective climate plan
ELI and LCANZI v Minister of Climate Change
With our friends, Lawyers for Climate Action NZ, we are taking legal action against the Minister of Climate Change over ‘glaring holes’ in the Government’s climate plan.
We believe in fairness and the rule of law. As a nation, we have high carbon emissions per capita. As a wealthy country, we need to meet our climate targets with real action, as part of the global effort to limit warming to no more than 1.5C this century.
Yet, in its first eight months, the Luxon-led Government cancelled 35 climate policies and actions which were part of the first Emissions Reduction Plan - without first consulting the public, as required by law.
It then developed the second emissions reduction plan which is almost devoid of actions or policies that will reduce emissions at their source. Climate Change Minister Simon Watts instead relied heavily on offsetting the country’s emissions with forestry plantations.
This was despite warnings from the Climate Change Commission that tree planting is no substitute for reducing emissions at source. It locks-in vast pine plantations for future generations, and falls short of our obligations under the Paris Agreement. The science is clear that forestry is important, but it’s not a substitute for reducing our combustion of fossil fuels.
The Minister has made the pathway for achieving the third emissions budget incredibly difficult. Left unchallenged, it will be a huge burden for the future.
Why did we take this case?
We believe it is necessary to take this case to protect the interests of the public now and in the future.
Under the Climate Change Response Act, the Government has to put in place a credible emissions reduction plan for Aotearoa that will meet our climate targets and set us up for success.
Minister of Climate Change Simon Watts was required to publish a sufficiently detailed plan that could assure the public New Zealand will meet its emissions budget. Each five-yearly plan must be a stepping stone towards the achievement of net-zero emissions by 2050.
The Government’s plan does not give confidence; in our view, it is neither credible or capable of achieving the purpose, which is to reduce emissions.
The Government has tossed out dozens of credible climate policies and actions, replacing them with high-risk policies that do not reduce our emissions at source. The Government has also dismantled key policies and plans that were designed to enable a genuine and fair transition to net zero emissions.
As it stands, the Government’s emissions reduction plan will carry huge consequences for our country. That’s why we are taking legal action to hold the Minister of Climate Change to account.
Case timeline
June 2025: Filed for judicial review
Case to be heard in the High Court, with the hearing date yet to be fixed.
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Under legislation, the government must set an emissions reduction plan every five years. These plans outline economy-wide policies and strategies for meeting corresponding emissions budgets - which are stepping stones towards achieving our 2050 net-zero target.
Lawyers for Climate Action NZ and ELI challenge decisions relating to both the first emissions reduction plan (2021-2025) and the second emissions reduction plan (2026-2030).
Arguments relating the first emissions reduction plan:After they were elected, the Government discontinued 35 ‘actions and projects’ in ERP1, including discontinuing the Clean Car Discount and cancelling the Government Investment in Decarbonising Industry fund. See the full list of project and actions cancelled by the Government here.
The applicants will argue that the Climate Change Response Act imposes guardrails on government’s ability to change and cancel climate policies on the fly. This serves the purpose of the Act, which includes providing a framework for New Zealand to “develop and implement clear and stable climate change policies” that stretch across political cycles and provide predictability (s 3). The Minister failed to ensure the plan had the required degree of currency, coherence, and also failed to properly consult on the changes.
In particular, on consultation, the applicants will argue the Act required the Minister to meaningfully consult with the public on any changes that were more than “minor or technical”, following the same process used for preparing the Plan (s 5ZI). By the time the Government got around to consulting on the changes, consultation was treated as an ex post facto tick-box exercise, and did not contain sufficient information for the public to understand the changes and provide informed responses.
In seeking declarations only, Lawyers for Climate Action NZ and ELI are focused on creating a precedent that clarifies how governments can change climate policies and strategies during emission budget periods.
Arguments relating to the second emissions reduction plan:
The Minister of Climate Change is under a legal duty to ensure that emissions budgets are met (s 5X). To support this, the Minister is required to prepare and publish emissions reductions plans “setting out the policies and strategies for meeting the relevant emissions budget” (s 5ZG).
The second emissions reduction plan purports to set out a plan for meeting the next budget, but on its own terms it has a wide uncertainty margin (+/- 16 million tonnes of CO2-e). It also projects that New Zealand won’t achieve our 2035 target. Lawyers for Climate Action NZ and ELI will argue that:
the plan doesn’t have a sufficient buffer for ensuring that the budget is met;
it’s unlawful for the plan to not set a credible path for meeting future budgets;
the Minister didn’t consider the quantified impacts of a range of different risks, such as the potential for higher coal use in electricity generation and industry due to the impact of gas shortages on gas price and availability on users other than Methanex - which is not included in the modelling;
the plan takes an unrealistic and inadequate approach to risk management, relying on a “wait and see” approach it calls “Adaptive Management”.
The second emissions reduction plan also takes an offsetting-led approach to our climate response, with government projections anticipating that 700,000 hectares of land will be converted into forestry by 2050 for NZ to meet its targets. Lawyers for Climate Action NZ and ELI will argue that the plan proceeds on a fundamental error of fact - that forestry offsets and reductions are fungible, when that’s not the case. They will also argue that the Government didn’t consider whether such an offsetting-heavy approach was consistent with our obligations under the Paris Agreement.
This will be one of the first legal cases in the world challenging a government’s pursuit of a climate strategy that relies so heavily on offsetting rather than emissions reductions at source.
In addition, around 95 per cent of the emissions reductions relied on by the Government are the result of a model which the Government calls the “emissions baseline” - a complex model not clearly linked to actual policies or strategies. Only around 5% of the projected emissions reductions come from policies actually included in the second emissions reduction plan. Lawyers for Climate Action NZ and ELI will argue that this created two issues for the Government:
First, it meant that the Government’s consultation for the second emissions reduction plan was unlawful as the consultation materials didn’t contain enough detail about the assumptions and policies included in the baseline. This meant the public weren’t able to provide informed responses and understand the government’s emissions reduction strategy.
Second, the projected reductions in the emissions baseline are the result of modelling assumptions, and not “policies and strategies” for meeting Emissions Budget 2 as required by s 5ZG(1).
Relief
In terms of relief, Lawyers for Climate Action NZ and ELI are seeking:
For the First Emissions Reduction Plan (2021-2025), declarations that the Minister erred in law by:
failing to maintain a current plan;
failing to consult with the public as required;
ending up with an unlawful plan that lacks coherence and internal consistency.
For the Second Emissions Reduction Plan (2026-2030), declarations that:
the plan itself is unlawful;
the process followed when consulting on the plan was unlawful;
that the plan’s reliance on offsetting, which treats forestry offsets as equivalent to actual emissions reductions at source, is based on a fundamental error of fact, and the Minister failed to have regard to the potential for that assumption to result in an emissions reduction plan that is inconsistent with New Zealand’s obligations under international law
the Minister’s decision was not based on a fair, accurate, or adequate report from officials.
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