LAWYERS FOR CLIMATE ACTION NZ INCORPORATED v MINISTER OF CLIMATE CHANGE [2023] NZHC 1835

LAWYERS FOR CLIMATE ACTION NZ INCORPORATED v MINISTER OF CLIMATE CHANGE [2023]NZHC 1835 [13 July 2023]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL AFTER 5 PM THURSDAY 13 JULY 2023.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-238[2023] NZHC 1835UNDER Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016IN THE MATTER OF an application for judicial reviewBETWEEN LAWYERS FOR CLIMATE ACTION NZINCORPORATEDApplicantAND MINISTER OF CLIMATE CHANGERespondentHearing: 13 July 2023Counsel: J D Every-Palmer KC, M R G van Alphen Fyfe and R A D'Silvafor the ApplicantA Hill and D Ranchhod for the RespondentJudgment: 13 July 2023JUDGMENT OF PALMER JCounsel/SolicitorsJ D Every-Palmer KC, WellingtonM C Smith, Barrister, WellingtonM R G van Alphen Fyfe, Barrister, WellingtonGilbert Walker, AucklandCrown Law Office, WellingtonSummary[1] In these proceedings, the Lawyers for Climate Action New Zealand Incchallenge the Climate Change (Auction, Limits and Price Control for Units)Amendment Regulations 2022 (the Amendment Regulations). In particular, theapplicant claims the Minister of Climate Change (the Minister) did not havereasonable grounds to be satisfied that the settings preferred by Cabinet (and adoptedby the Minister) were consistent with s 30GC(2) or (3) of the Climate ChangeResponse Act 2002 (the Act). A two-day hearing was scheduled to commence in theHigh Court on 21 August 2023. However, the Minister admits he erred inrecommending the unit limits and price control settings for 2023 to 2027 that wereadopted in the Amendment Regulations. The parties have agreed on the error and onthe relief required. The Court agrees the relief is appropriate. In summary, the Courtdeclares that the Amendment Regulations are ultra vires s 30GC of the Act and directsthe Minister to reconsider the unit limit and price control settings for 2023 to 2027.What happened?[2] The facts in this case, as set out below, have been agreed between the parties.Emissions Trading Scheme limits and price control settings[3] The Climate Change (Auctions, Limits, and Price Controls for Units)Regulations 2020 (the Regulations) contain limits and price control settings for theNew Zealand Emissions Trading Scheme (ETS). The Regulations are updatedannually to ensure that, at all times, they prescribe limits and price control settings foreach of the next five calendar years.1 The Regulations are made, and updated, by theGovernor-General on the recommendation of the Minister.[4] The limits restrict the annual volume of New Zealand units (NZUs) madeavailable through auctioning, and overseas units that may be used, by ETSparticipants.1 Climate Change Response Act 2002, ss 30GB(3) and 30GB(4).[5] As a portion of the auction limit, the price control settings establish a reserveamount of NZUs to be released for sale at auction if a trigger price is reached orexceeded by bidding at an auction. This reserve amount of NZUs, which can be set atzero, is known as the Cost Containment Reserve (CCR).[6] The Regulations prescribe, for each calendar year:(a) a limit on the NZUs available by auction (an individual limit);(b) a limit on the approved overseas units used (another individual limit);(c) a limit on the sum of the following (the overall limit):(i) the NZUs available by auction;(ii) the NZUs available by other means;2(iii) the approved overseas units used;(d) the following price control settings:(i) the minimum price below which units must not be sold byauction; and(ii) in relation to the CCR (unless the reserve amount is zero):1. one or more trigger prices; and2. the reserve amount of NZUs for each trigger price.[7] The limit and price control settings must be in accordance with New Zealand'semissions budgets, New Zealand's Nationally Determined Contribution (NDC)communicated under the Paris Agreement, and the target in the Act to reduce net2 In practice, this is the industrial free allocation of NZUs to emissions-intensive and trade-exposedfirms.greenhouse gas emissions (except for biogenic methane) to zero by 2050, and toreduce emissions of biogenic methane to 24–47 per cent below 2017 levels by 2050,including to 10 per cent below 2017 levels by 2030 (2050 Target).[8] However they need not strictly accord with the emissions budgets or the NDC,as long as the discrepancy is justified after considering the matters listed in s 30GC(5)and (6) of the Act.[9] There are various combinations of limit and price control settings that couldaccord with New Zealand's emissions budgets, NDC, and the 2050 Target.New Zealand's NDC[10] New Zealand's current NDC was communicated to the United NationsFramework Convention on Climate Change Secretariat on 4 November 2021 pursuantto art 4 of the Paris Agreement.[11] New Zealand's current NDC is a commitment to reduce net greenhouse gasemissions to 50 per cent below gross 2005 levels by 2030. In terms that arecomparable to New Zealand's previous NDC, this corresponds to a 41 per centreduction when managed using a multi-year emissions budget starting from NewZealand's 2020 emissions target.[12] The Government estimates the NDC budget to be 571 million tonnes of carbondioxide equivalent (Mt CO2-e) for the 2021 to 2030 period.New Zealand's emissions budgets[13] On 9 May 2022, the Minister published New Zealand's first emissionsbudgets,3 covering the period 2022 to 2035:(a) the emissions budget for the 2022 to 2025 emissions budget period is290 Mt CO2-e;3 Section 4(1) of the Act defines "emissions budget" to mean "the quantity of emissions that will bepermitted in each emissions budget period as a net amount of carbon dioxide equivalent".(b) the emissions budget for the 2026 to 2030 emissions budget period is305 Mt CO2-e; and(c) the emissions budget for the 2031 to 2035 emissions budget period is240 Mt CO2-e.Amendment Regulations[14] The most recent update to the Regulations was made by the AmendmentRegulations. The Amendment Regulations were notified in the New Zealand Gazetteon 15 December 2022 and came into force on 1 January 2023.[15] The Amendment Regulations set the following limits and price settings for theETS for the period 2023 to 2027:Climate Change Commission Advice[16] The Climate Change Commission (Commission) must recommend to theMinister limits and price control settings, each time the Minister is required torecommend the making of regulations on limits and price control settings.4[17] In July 2022, the Commission made recommendations for the AmendmentRegulations in a document titled Advice on NZ ETS unit limits and price controlsettings for 2023–2027 (Commission's Advice). This was the first time theCommission gave advice as part of the annual process for revising regulations for theETS settings.[18] The Commission's Advice recommended the following limits and price controlsettings for 2023–2027:54 Climate Change Response Act, s 5ZOA.5 He Pou a Rangi | Climate Change Commission Advice on NZ ETS unit limits and price controlsettings for 2023-2027 (July 2022) at 86.[19] The Commission's recommendations were based on key judgements set out in theCommission's Advice.[20] The Commission's key reasons were as follows:Limits(a) The overall unit limit and the limit on units available by auction should beset in line with the emissions budgets, as stepping stones to the 2050 targetand the intended domestic contribution to the NDC.(b) The emissions budget volume should be allocated to non-NZ ETS sectorsbased on specified shares of effort set by the Government's sectorsub-targets from the emissions reduction plan.(c) The emissions budget volume allocated to the ETS should then be adjustedfor certain technical volume adjustments associated with differencesbetween emissions estimated in the ETS compared to the nationalgreenhouse gas inventory and New Zealand's target accounting in respectof liquid fossil fuels and coal.(d) A deduction should be made from the total NZU supply to account for theindustrial free allocation of NZUs to emissions-intensive andtrade-exposed firms.(e) The NZU supply should then be reduced consistent with reducing thevolume of existing "surplus" NZUs (estimated by the Commission at 49.1million NZUs) towards zero by 2030 to derive the base auction volume.(f) The approved overseas unit limit should be set at zero.(g) All previous steps should then be combined into a calculation to give theannual auction volumes for the 2023–2027 period. Taken together, thosedecisions result in the following annual auction volumes:Price control settings(h) While the CCR was intended to be used only rarely, it had beentriggered three times in the last six auctions implying that the CCRtrigger price was now below market participants' future priceexpectations.(i) Based on the repeated triggering of the CCR, analysis of howuncertainties may affect the emissions prices needed to meet emissionsbudgets, as well as the level and trajectory of international emissionsprices, the trigger prices for the CCR should increase substantially tomeet the intention that it be used only rarely.(j) The overall volume of NZUs included in the CCR should match theplanned surplus reduction volume, which would provide a large enoughvolume to reduce the risk of excessive price increase, while avoidingadding further units to the banked surplus of NZUs.(k) The volume of units in the CCR should be divided into two tiers, tomanage the risk of strongly increasing prices if the surplus units remainilliquid, while limiting the fiscal impacts and target risks relative totriggering a single tier CCR.[21] In summary, the Commission's Advice contained three main recommendedchanges from the then current settings in the Regulations to ensure that the newsettings would accord with the emissions budgets and the 2050 Target:(a) a significant increase in the auction reserve price based on modellingby the Commission of the minimum price consistent with achievementof the emissions budgets (e.g. from $32.10 to $60 in 2023);(b) a significant reduction in the base auction volume (e.g. from 18.6mNZUs to 16.3m NZUs in 2023) so that the auction volume aligns withachievement of the emissions budgets, and the "surplus" stockpile ofNZUs assessed by the Commission to represent a significant risk tomeeting the emissions budgets would be reduced; and(c) a significant increase in the CCR trigger price (e.g. from $70 to a firsttier at $171 and a second tier at $214 in 2023) to meet the intention thatthe CCR be triggered only rarely.The Minister's recommendations[22] The limits and price control settings which the Minister recommended for theAmendment Regulations differed from some, but not all, of the recommendationsmade by the Commission. In summary:Limits(a) The Minister adopted the Commission's recommendation that theNZUs available by auction be reduced to draw down the "surplus"stockpile of NZUs held by participants and accumulated from previousyears.(b) The Minister adopted the Commission's recommendation for theindividual limit on approved overseas units.(c) The Minister did not adopt the Commission's recommended technicaladjustment (described at paragraph [20(c)] above), but otherwiseadopted the overall limit on units that was recommended by theCommission.Price control settings(d) The Minister set the auction reserve price at a lower level thanrecommended by the Commission, adopting the status quo reserveprice with an adjustment for higher-than-expected inflation.(e) The Minister adopted the Commission's recommended total reservevolume of NZUs for the CCR.(f) The Minister set the CCR trigger price at a lower level thanrecommended by the Commission, adopting the status quo trigger pricewith an adjustment for higher-than-expected inflation.(g) The Minister did not adopt the Commission's recommendations for atwo-tiered CCR structure with two different trigger prices and volumes.The decision-making process[23] Subsequent to receiving the Commission's Advice, the Ministry for theEnvironment (MfE) consulted on the proposed amended ETS price and volumesettings through the consultation document Proposed changes to New ZealandEmissions Trading Scheme limit and price control settings for units 2022 (the MfEConsultation).66 Manatū Mō Te Taiao | Ministry for the Environment Proposed changes to New Zealand EmissionsTrading Scheme limit and price control settings for units 2022 (December 2022).[24] After receiving the Commission's advice and following the MfE Consultation,the Minister also had regard to the following documents, prior to makingrecommendations on the annual update to the Regulations to Cabinet:(a) MfE's Regulatory Impact Statement: Annual update to New ZealandEmissions Trading Scheme limits and price control settings for units2022;7 and(b) a report prepared by Treasury for the Minister of Finance to informMinisterial feedback on a draft of the Cabinet Paper, entitledSupporting decisions on updating NZ ETS settings.8[25] The Minister sought approval from Cabinet for his proposed recommendationsin a Cabinet paper: 2022 update to New Zealand Emissions Trading Scheme limits andprice control setting for units (the Cabinet Paper).9 In the Cabinet Paper, the Ministerrecommended following the Commission's Advice in full. The Cabinet Paper alsoprovided alternative limits and price control options for Cabinet to consider.[26] Cabinet met on 28 November 2022 and made decisions in relation to the limitsand price control settings. Those decisions are recorded in a Cabinet Minute titled NewZealand Emissions Trading Scheme: 2022 Update to limits and price control settingsfor units (Cabinet Minute).10[27] The Cabinet Minute authorised the Minister to further clarify and developpolicy matters relating to the amendment in a way not inconsistent with Cabinet'sdecisions and invited the Minister to issue drafting instructions to ParliamentaryCounsel Office in order to promulgate the Amendment Regulations.7 Manatū Mō Te Taiao | Ministry for the Environment Regulatory Impact Statement: Annual updateto New Zealand Emissions Trading Scheme limits and price control settings for units 2022 (3November 2022).8 Te Tai Ōhanga | The Treasury Supporting decisions on updating NZ ETS settings (28 October2022).9 Cabinet Economic Development Committee "2022 update to New Zealand Emissions TradingScheme limits and price control setting for units" (November 2022).10 Cabinet "New Zealand Emissions Trade Scheme: 2022 Update to Limits and Price ControlSettings for Units" (28 November 2022) CAB-22-MIN-0533.[28] The Minister sought approval from the Cabinet Legislation Committee fordraft regulations to be submitted to the Executive Council, reflecting the decisionsmade by Cabinet on 28 November 2022, in the Cabinet paper Climate Change(Auctions, Limits, and Price Controls for Units) Amendment Regulations 2022 (theLEG Paper).[29] The Cabinet Legislation Committee approved the Amendment Regulations forsubmission to the Executive Council. The Amendment Regulations and CabinetLegislation Committee approval were then considered by Cabinet and confirmed forsubmission to the Executive Council.[30] The Amendment Regulations were made on 12 December 2022, notified in theNew Zealand Gazette on 15 December 2022, and came into force on 1 January 2023.[31] On 14 December 2022, the Minister presented a report to Parliament on thereasons for differences between the prescribed ETS limits and price control settingsfor units in the Amendment Regulations and the Commission's advice on these settings(the Minister's Reasons).Analysis in the decision-making process[32] In the Cabinet Paper, the Minister recommended following the Commission'sAdvice in full and explained the reasons for this recommendation. The Cabinet Paperidentified alternative options which were marked "not preferred".[33] The Cabinet Minute records that Cabinet made decisions which adopted someof the recommended options, and some of the "not preferred" options. In summary,Cabinet:(a) noted that the Commission recommended adjustments to limit settings,which result in reduced auction volumes compared to the status quo;(b) noted that this will reduce the supply of units into the NZ ETS, whichmay exert an upwards price pressure;(c) agreed to reduce the base auction volume to reflect the stockpileadjustment recommended by the Commission;(d) did not adopt the technical adjustment recommended by theCommission;(e) noted that NZU prices affect costs faced by households and theeconomy, including the prices of fossil fuels and electricity;(f) noted that price control settings for units are intended to mitigateunacceptably low or high NZ ETS prices, and are not intended to signalprice expectations to the market, nor to be triggered regularly or often;(g) did not adopt the Commission's advice to significantly increase theauction reserve price, and instead agreed to extending status quoauction reserve prices adjusted for inflation for all years;(h) noted that status quo price control settings appear to have beenencouraging market participants to bid high prices in order to triggerand exhaust the CCR fully each year;(i) noted that secondary market NZU prices have to date risen to the levelof the CCR trigger price;(j) noted that a significant increase to the CCR trigger price is an attemptto decouple NZU prices from the upper price control settings;(k) agreed to updated CCR volumes;(l) did not adopt the Commission's advice to significantly increase theCCR trigger price, and instead agreed to adopt the status quo triggerprice, extended and adjusted for inflation for all years;(m) noted that if NZU prices rise to the level of the recommended CCRtrigger prices, this would have impacts on costs faced by householdsand the economy, including increased fossil fuel and electricity prices;and(n) agreed to inviting the development of additional actions if the CCR istriggered.[34] Following the Cabinet decisions, the Minister considered whether the limitsand price control settings agreed by Cabinet were in accordance with the emissionsbudgets, the NDC, and the 2050 Target prior to seeking authorisation to submit theAmendment Regulations to Executive Council and received advice from officialsregarding the same. The Minister also considered the matters listed in s 30GC(5) and(6) of the Act. The Minister confirmed at that time he was satisfied that all statutoryrequirements, including consultation requirements, for the making of the AmendmentRegulations had been met.[35] In a briefing to the Minister which contained a draft of the LEG Paper forapproval, officials provided the Minister with some analysis of the final proposed limitand price control settings in relation to the tests in s 30GC(2) and (3) of the Act.[36] However, the Cabinet papers, associated Ministerial briefings, and othermaterials to which the Minister had regard in making his recommendation regardingthe final limits and price control settings that were adopted in the AmendmentRegulations did not adequately consider whether the combination of limits and pricecontrol settings adopted was in accordance with the emissions budgets, New Zealand'sNDC, and the 2050 Target.The requirements of s 30GC[37] Section 30GC(1)(a) of the Act requires the Minister to comply with s 30GC inrecommending the making of regulations that prescribe limits or price control settings.The parties agree on the following statements of the law.The requirement for "accordance"[38] Of particular relevance to this proceeding, s 30GC(2) and (3) provide that:(2) The Minister must be satisfied that the limits and price control settingsare in accordance with—(a) the emissions budget, and the nationally determinedcontribution for New Zealand under the Paris Agreement, thatapplies to—(i) the period for which the limits or price controlsettings are being prescribed; or(ii) any period after that, if a budget or contribution existsfor that period; and(b) the 2050 target.(3) However, they need not strictly accord with the budgets orcontributions as long as the Minister is satisfied that the discrepancyis justified, after considering the other matters under this section.[39] Section 30GC(2) and (3) are subjective empowering clauses — meaning theyrequire the Minister to subjectively satisfy himself of the matters therein. However,the parties agree there needs to be an objective basis for, and analysis underpinning,the Minister's subjective conclusions.11[40] Section 30GC(2) requires the Minister to satisfy himself the limits and pricecontrol settings are in accordance with (i.e. "in agreement or harmony with; inconformity to; according to")12 each of:(a) the emissions budget and NDC applying to the period for which thelimits or price control settings are prescribed;(b) any emissions budget or NDC that has been set for the period after thatfor which the limits or price control settings are prescribed; and(c) the 2050 target.11 As stated in Cuneen v Commissioner of Police HC Wellington, CP625/91, 24 September 1992at 7: "it is now settled law that a mere assertion of subjective satisfaction in the context of astatutory power does not prevent the Courts from considering whether or not there is anobjective basis for the opinion so asserted". For a more recent discussion of the authorities, seeIdea Services Ltd v Attorney-General [2022] NZCA 470 at [49] to [53].12 Oxford English Dictionary, Third Edition, December 2011; most recently modified versionpublished online December 2022, "in accordance with (also to)".[41] In order to do so, it is logically necessary for the Minister to consider (amongother matters):(a) the role the ETS is intended to play in achieving each of the relevantbudgets, NDC(s), and the 2050 target (after considering how emissionsare to be allocated between ETS and non-ETS sectors, and the possibleuse of voluntary cooperation under art 6 of the Paris Agreement); and(b) how the unit limits and price control settings contribute to theachievement of the ETS' anticipated role (i.e., how those settingsoperate to constrain emissions in sectors covered by the ETS to thelevels needed).[42] In particular, the Minister will need to consider:(a) the current surplus of NZUs (estimated by the Commission at 49.1million NZUs) and how the proposed settings would address thatsurplus; and(b) to the extent that voluntary cooperation under art 6 of the ParisAgreement (colloquially known as offshore mitigation) is relied on tomeet the NDC — the viability of options to access emissions reductionsin other jurisdictions.[43] Section 30GC(3) of the Act authorises deviation from strict accordance (i.e.,exact or precise accordance) with the relevant emissions budgets and NDC(s), but onlywhen the Minister is satisfied the discrepancy is justified by reference to the factors insubs (5) and (6). Further, the Minister must still be satisfied that the settingsnevertheless accord with the emissions budgets and NDC(s).[44] In considering the requirements of s 30GC(2) and (3), the Minister must becognisant of his duty under s 5X(4) of the Act to "ensure that the net accountingemissions do not exceed the emissions budget for the relevant emissions budgetperiod".The mandatory considerations[45] Section 30GC(4) to (6) go on to provide that:(4) The Minister must consider—(a) the main matters; and(b) the additional matters, but only in relation to the price controlsettings(5) The main matters are as follows:(a) the projected trends for New Zealand's greenhouse gasemissions in the 5 years after the current year, including—(i) the anticipated volumes of greenhouse gas emissionsto which the emissions trading scheme applies(meaning emissions for which participants arerequired to submit returns or surrender units underthis Act); and(ii) the anticipated volumes of greenhouse gas emissionsto which the emissions trading scheme does notapply:(b) the proper functioning of the emissions trading scheme:(c) international climate change obligations and instruments orcontracts that New Zealand has with other jurisdictions toaccess emissions reductions in their carbon markets:(d) the forecast availability and cost of ways to reducegreenhouse gas emissions that may be needed for NewZealand to meet its targets for the reduction of emissions:(e) the recommendations made by the Climate ChangeCommission under section 5ZOA:(f) any other matters that the Minister considers relevant.(6) The additional matters are as follows:(a) the impact of emissions prices on households and theeconomy:(b) the level and trajectory of international emissions prices(including price controls in linked markets):(c) inflation.[46] The main and additional matters listed in s 30GC(5) and (6) provide potentialreasons for recommending settings which deviate from strict accordance with therelevant emissions budgets and NDC(s).The admitted error[47] The Minister admits that he erred in recommending the unit limits and pricecontrol settings for 2023 to 2027 adopted in the Amendment Regulations and admittedthe ground of review pleaded at paragraph [93(f)] of the Statement of Claim.13Namely, he admits that the Minister's decision, and hence the AmendmentRegulations, are ultra vires s 30GC of the Act because, on the materials to which hehad regard, he did not have reasonable grounds to be satisfied that the combination ofsettings preferred by Cabinet (and adopted by the Minister) were in accordance withthe 2050 target and either:(a) strictly in accordance with the emissions budgets set under the Act andNew Zealand's NDC; or(b) if not strictly in accordance with the emissions budgets and the NDC,nonetheless in accordance with them with any discrepancy justified byone or more of the matters specified under s 30GC(5) and (6) of theAct.[48] In terms of the absence of reasonable grounds, the parties agree that thematerial before the Minister did not contain an adequate evaluation or analysis of thelimits and price control settings adopted in the Amendment Regulations which differedfrom those recommended by the Commission for their accordance with the emissionsbudgets, NDC, and the 2050 Target (either individually or in combination).[49] In particular, the applicant is concerned (and the Minister accepts) that thematerial before the Minister did not adequately evaluate whether the adoption of thebase auction volume recommended by the Commission (which was intended to drawdown part of the surplus unit stockpile) was in accordance with the emissions budgets,13 With the exception that paragraph [93] incorrectly refers to s 5ZOA, as opposed to s 30GC of theAct.NDC, and the 2050 target when combined with the different CCR trigger price thatwas adopted.[50] For completeness, the Minister does not — for the purposes of this proceeding— admit that the combination of settings contained in the Amendment Regulationswas necessarily unavailable to him under the Act following a proper analysis. TheMinister's admission is based on the deficiencies in the analysis presented to himregarding the settings that were preferred by Cabinet and ultimately adopted.[51] The applicant does not intend to pursue its other grounds of review, given theMinister's admission of the ground of review set out in at paragraph [93(f)] of theStatement of Claim.Relief[52] In light of the Minister's admission, the parties jointly seek specified relief.Their joint reasoning is:(a) The settings in the Amendment Regulations are key to the operation ofthe New Zealand ETS and New Zealand's compliance with its climatechange commitments under the Act and international obligations.(b) An order for reconsideration is sought under s 17(3) of the JudicialReview Procedure Act 2016 — which, under s 17(6)(a), would have theeffect of preserving the Amendment Regulations pending theirrevocation and replacement. This would avoid the market instabilitythat would be associated with the settings in the AmendmentRegulations immediately being quashed as well as the need for urgentsteps to remake the relevant settings prior to the next ETS auctionscheduled for 6 September 2023 (without settings in place, the auctioncannot function). The parties concur that it would be unrealistic for theAmendment Regulations to be reconsidered before that auction.(c) In addition, the Minister and Cabinet are already due — as part of theannual revision of settings — to consider unit limits and price controlsfor (at least) 2026 to 2028 and publish the new amendment regulationsprior to 30 September 2023. If ordered, reconsideration, revocation andreplacement of the Amendment Regulations could occur in parallelwith decision-making on the 2023 annual update.[53] For clarity, the Minister does not propose to undertake fresh consultation forthe purposes of the reconsideration but will instead rely on the consultation alreadyundertaken in 2022 (in relation to the 2023–2027 settings) and 2023 (in relation to the2024–2028 settings).[54] Relief in judicial review lies within the discretion of the Court. I am satisfiedthe relief jointly sought is appropriate. Accordingly, I order the relief sought:(a) a declaration pursuant to s 16(1)(b) of the Judicial ReviewProcedure Act that the Minister's decision, and hence the AmendmentRegulations, are ultra vires s 30GC of the Act because the Minister didnot have reasonable grounds to be satisfied that the combination ofsettings preferred by Cabinet (and adopted by the Minister) were inaccordance with the 2050 target and either:(i) strictly in accordance with the emissions budgets and the NDC;or(ii) if not strictly in accordance with the emissions budgets and theNDC, nonetheless in accordance with them with anydiscrepancy justified by one or more of the matters specifiedunder s 30GC(5) and (6);(b) because of the Minister's admitted error, an order pursuant to s 17(3)(and with the jurisdiction set out in s 17(6)(b)) of the Judicial ReviewProcedure Act directing the Minister to reconsider the unit limit andprice control settings for 2023 to 2027 in accordance with therequirements of s 30GC(2) and (3) of the Act, taking into account theresults of consultation undertaken in 2022 and 2023, and in accordancewith any other terms of the Court's judgment; and(c) an order awarding costs to the Applicant (on a category 2B basis).Palmer J