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Judge Leaves Door Open On Climate Change Case… Just

First published in Energy and Environment on March 12, 2020.

A High Court judge has left the door open for a new tort law making corporates responsible for their greenhouse gas emissions, but indicated it would be a difficult argument to make and hard for the courts to give any relief if the case was successfully argued.

Justice Edwin Wylie struck out two out of three claims made by Climate Change Iwi Leaders Group chair Mike Smith against Fonterra, Genesis Energy, Dairy Holdings, NZ Steel, Z Energy, NZ Refining and BT Mining. He has a similar case against the government.

The hearing was to consider the corporates move to strike out the claim saying it could not be reasonably argued.

Wylie released a decision saying while Smith could not proceed on already established rules of negligence and public nuisance, a new area of law could be created.

“I am reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, is untenable,” the judge said.

“It may, for example, be that the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions.”

Smith wanted the court to declare the corporates have caused a public nuisance through their emissions and order they move to zero net emissions from their activities by 2030.

The judge referred to a paper where the Supreme Court chief, alongside other judges, states the problem of climate change does not adhere well to established legal doctrine. “The common law method brings stability, but it can also allow for the injection of new ideas and for the creation of new responses as required,” Justice Wylie cited.

The statement of claim raises three causes of action, all in tort – public nuisance, negligence, and breach of an inchoate duty. Declarations are sought that each of the defendants has unlawfully caused or contributed to the public nuisance alleged or breached duties said to be owed to Smith. Injunctions are also sought requiring each defendant to produce, or cause, zero net emissions from its activities by 2030.

The judge said Smith’s negligence claim could not go ahead because there was no proximity between Smith and the corporates, and that if he ruled in his favour, floodgates may open. He said the public nuisance claim was “clearly untenable.”

Wylie said even if Smith was successful in his wider claim it would be difficult to craft an injunction which did not clash with Parliament, Government policy and other law. It would in effect have the court acting as a regulator requiring specialist not judicial expertise.

Meanwhile, a High Court judge had declined an application to strike down a judicial review of Thames-Coromandel District Council’s refusal to the sign up to a climate change declaration. Justice Gault also declined the council’s bid for security deposit, saying it was in the public interest for the case to go ahead and the group seeking the review could not afford it. Justice Gault did not look at the merits of the case, but said the bar for striking out a judicial review should be very high. Arguments in the application looked at whether the declaration had any meaningful impact or whether it was simple binary decision for the local Mayor to sign or not.

The decision on the Smith case is covered in more detail in this week’s Energy and Environment.

First published in Energy and Environment on March 12, 2020.

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