LAWYERS FOR CLIMATE CHANGE ACTION NZ INC v CLIMATE CHANGE COMMISSION [2023] NZCA 443

LAWYERS FOR CLIMATE CHANGE ACTION NZ INC v CLIMATE CHANGE COMMISSION [2023]NZCA 443 [13 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA714/2022[2023] NZCA 443BETWEEN LAWYERS FOR CLIMATE CHANGEACTION NZ INCORPORATEDAppellantAND CLIMATE CHANGE COMMISSIONFirst RespondentMINISTER OF CLIMATE CHANGESecond RespondentHearing: 26 June 2023Court: Gilbert, Courtney and Katz JJCounsel: J D Every-Palmer KC for AppellantV E Casey KC and H M L Farquhar for First RespondentA L Martin and H T N Fong for Second RespondentJudgment: 13 September 2023 at 3 pmJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] This judgment responds to an application by Lawyers for Climate Action NZInc (LCANZ) to adduce further evidence in support of its appeal.High Court proceeding[2] LCANZ applied for judicial review of advice, published in its final form on31 May 2021, by He Pou a Rangi | the Climate Change Commission to the Ministerof Climate Change pursuant to the Climate Change Response (Zero Carbon Act)Amendment Act 2019 (the Act).1 The challenge focused on two parts of theCommission's advice, referred to in the High Court judgment as "the NDC Advice"and "the Budgets Advice".2[3] The NDC Advice concerned whether an international commitment made byNew Zealand in 2016 as to the level by which it would reduce its greenhouse gasemissions by 2030 — referred to as the 2016 Nationally Determined Contribution(the 2016 NDC) — was consistent with global efforts to limit global warming to 1.5ºCabove pre-industrial levels. The Commission advised that the 2016 NDC was notconsistent with the 1.5ºC global effort and provided advice on the level of commitmentthat would be compatible with it.3[4] The Budgets Advice concerned budgets for New Zealand's emissions of allgreenhouse gases from 2022 onwards. These budgets set the quantity of the emissionspermitted for specific periods.4[5] LCANZ advanced four grounds in its application for judicial review:(a) error of logic;(b) misapplication of statutory purpose and criteria;(c) error of law in recommending that the Minister use an incorrectaccounting methodology for measuring progress towards meetingemissions budgets and targets; and1 He Pou a Rangi | Climate Change Commission Ināia tonu nei: a low emissions future for Aotearoa(31 May 2021) [Final advice].2 Lawyers for Climate Action NZ Inc v Climate Change Commission [2022] NZHC 3064[High Court judgment] at [3] and [6].3 Final advice, above n 1, at chs 21–22.4 At chs 5–8.(d) unreasonableness.[6] The hearing in the High Court took place in late February and earlyMarch 2022. Mallon J dismissed the claims for reasons set out in her reservedjudgment delivered on 23 November 2022. LCANZ's appeal against the judgment isscheduled to be heard later this year.The proposed further evidence[7] LCANZ now applies to adduce further evidence in support of its appeal, beingextracts from three reports of the Intergovernmental Panel on Climate Change (IPCC)and one report of the Ministry for the Environment | Manatū Mō Te Taiao (MfE).These reports were all released after the High Court hearing.[8] The IPCC is the United Nations' body for assessing the science relating toclimate change and its objective is to provide governments with scientific informationthey can use to develop climate change policies.5 Its current (sixth) assessment reportcomprises four reports, one by each of its three working groups and an overallsynthesis report.6 Each of these reports contains an introductory summary for policymakers. The summary from the first working group report (physical science), releasedon 9 August 2021, was placed before the High Court, and is included in the case onappeal.7 LCANZ wishes to produce as updating evidence the equivalent summariesfor the other three reports (adaptation report dated 28 February 2022,8 mitigationreport dated 4 April 2022,9 and synthesis report dated 20 March 202310). LCANZsubmits that these reports provide an up-to-date picture of the effects of climate changeand the action needed to combat it. It says the reports will help this Court understandthe complex and multi-faceted issue of climate change.5 Intergovernmental Panel on Climate Change "About the IPCC" <www.ipcc.ch>.6 Intergovernmental Panel on Climate Change "AR6 Synthesis Report: Climate Change 2023"<www.ipcc.ch>.7 Intergovernmental Panel on Climate Change Climate Change 2021: The Physical Science Basis –Summary for Policymakers (7 August 2021).8 Intergovernmental Panel on Climate Change Climate Change 2022: Impacts, Adaptation andVulnerability – Summary for Policymakers (28 February 2022).9 Intergovernmental Panel on Climate Change Climate Change 2022: Mitigation of Climate Change– Summary for Policymakers (4 April 2022).10 Intergovernmental Panel on Climate Change Climate Change 2022: Mitigation of Climate Change– Summary for Policymakers (4 April 2022).[9] The MfE report was published in December 2022.11 It records New Zealand'shistorical and projected greenhouse gas emissions and trends, progress towardsmeeting its emissions reductions targets, and policies and measures implemented toaddress climate change. LCANZ notes that this report uses greenhouse gas inventory(GHGI) accounting, as opposed to the modified activity-based measure (MAB)accounting recommended by the Commission. It says the report provides cogentevidence of what it contends is an inadequate level of ambition in the Commission'srecommended emissions budgets.Positions of the respondents[10] The Commission opposes the application. Because the reports post-date itsadvice, the Commission says they cannot be relevant to the grounds of reviewadvanced in the High Court and will not assist this Court in determining the appeal.[11] The Minister does not oppose the application but reserves his position on theweight to be placed on these reports, given they were published after the hearing inthe High Court and were not available at the time of the impugned advice.Applicable principles[12] The criteria for the admission of new evidence on a civil appeal arewell-established. The evidence will generally not be admitted unless it is fresh,credible, and cogent. Evidence that is not fresh should not be admitted unless thecircumstances are exceptional and the grounds compelling.12Is the evidence cogent?[13] The evidence is plainly fresh and credible. The sole issue on this applicationis whether the evidence is cogent, given it was not available to the Commission at thetime it formulated its advice.11 Ministry for the Environment | Manatū Mō Te Taiao Te Rīpoata Taurua Tuarima o Aotearoa: NewZealand's Fifth Biennial Report under the United Nations Framework Convention on ClimateChange (December 2022) [MfE report].12 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at192–193; and Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006]NZSC 59, [2007] 2 NZLR 1 at [6].[14] The further evidence is said to be relevant to two of the four grounds of reviewadvanced in the High Court, being alleged misapplication of statutory purpose andcriteria (the second ground) and unreasonableness (the fourth ground). In theintroductory section of her judgment, the Judge succinctly summarised these groundsand her reasons for dismissing them.[15] The Judge summarised the second ground as follows:13 [LCANZ] says that the Commission wrongly grouped the mandatorystatutory considerations and adopted "economically affordable" budgetsrather than the statutory requirement to recommend budgets that are"ambitious but likely to be technically and economically achievable" and thatwould meet the statutory purpose of contributing to the global 1.5ºC effort.[16] The Judge rejected that claim on the basis that:14The Commission did not misinterpret the statutory purpose, as it correctlyunderstood that the emissions budgets should be set having regard to themandatory relevant considerations and with both the 2050 Target [set bythe Act, the principal aspect of which is that New Zealand's net emissions ofgreenhouse gases, other than biogenic methane, must be zero by 2050] andcontributing to the global 1.5ºC effort in mind. The Commission also correctlyapplied the mandatory relevant considerations and did not mischaracterisethem.[17] The Judge's summary of the fourth ground was as follows:15 LCANZ contends that the Budgets Advice was irrational, unreasonable andinconsistent with the legislative purpose of contributing to the global 1.5ºCeffort. It says the Commission's recommended budgets will see emissionsincreasing over the next decade and are inconsistent with reductions the 2018Special Report says are necessary between 2010 and 2030 for the global 1.5ºCeffort. It also says the Budgets Advice was inconsistent withthe Commission's analysis as to the NDC that what would be consistent withthe global 1.5ºC effort and New Zealand's fair share of the global budget as asubstantial past emitter and a developed country. Finally, it says thatthe Commission failed to address the relative costs, benefits and risks offurther domestic reductions as compared with the proposed purchase ofoffshore mitigation to meet New Zealand's NDC.13 High Court judgment, above n 2, at [8] (footnote omitted).14 At [11(b)].15 At [10].[18] The Judge summarised her reasons for rejecting this claim:16The Commission's Advice was not irrational or unreasonable. The valuejudgments on which the NDC Advice [was] based reflected New Zealand'sparticular circumstances as a developed country, but with significantcommercial forestry with cyclical swings sequestering carbon from theatmosphere and then releasing it. The [MAB] methodology was intended toprovide a clear signal and stable basis on which to drive climate change actionrather than relying on removals of carbon from existing forestry.The Commission's reasons and [the] material on which [they were] basedsupported its choice of [MAB]. The Budgets Advice reflected the samereasoning and material.LCANZ was correct that neither the NDC Advice nor the Budgets Advice putNew Zealand on track to reduce domestic net emissions by 2030 as per theIPCC global pathways but the legislation did not require this in order tocontribute to the global 1.5ºC effort. There were a range of considerationsthe Commission was required to take into account. Amongst other things,the Commission concluded that there was the risk of severe social andeconomic impacts on New Zealand communities, people and businesses, withlegacy impacts on other generations and Māori, by trying to make acontribution solely through domestic action at this early stage ofNew Zealand's transition to a low emissions economy. The Advice would putNew Zealand on track to reach the net zero carbon target sooner than the2050 Target. The Commission's reasoning and the material on which [it] wasbased justified its Advice. No error in that reasoning or the material on whichit was based has been shown.[19] MAB accounting was the methodology used by the Commission, andrecommended to the Minister, to account for net emissions in its recommendedemissions budgets and in assessing progress towards meeting the budgets and the netzero 2050 target. In the third ground of review, LCANZ claimed the Commissionerred in law by using MAB, contending that the Act mandates national inventoryreporting based on data tables contained in New Zealand's GHGI. The choice ofaccounting methodology matters because the GHGI number represents what theatmosphere sees whereas LCANZ says MAB "tilts" the trajectory for net emissionsby making historic net emissions look worse than they actually were and net emissionsin the 2025–2035 period look better than they actually will be. For example, the 2010MAB number is higher than the reality of what the atmosphere sees, and the 2030MAB number is lower. This may indicate that New Zealand is doing more between2026 and 2030 to reduce emissions than is the reality. Conversely, the positionreverses from 2036.1716 At [11(d)].17 At [270]–[271].[20] LCANZ observes that the MfE report uses the GHGI measure and argues thisreport provides cogent evidence of the inadequate level of ambition inthe Commission's recommended emissions budgets in terms of what the atmosphereactually sees. For example, one of the tables in the report shows a 12.1 per centprojected decrease in New Zealand's gross emissions between 2010 and 2030 whenexcluding emissions and removals from the land use, land use change and forestrysector and a 13.1 per cent increase in net emissions over the same period whenincluding emissions and removals from the land use change and forestry sector.18[21] We accept the Commission's submission that the new evidence cannot haveany material bearing on the outcome of the appeal and it is therefore not cogent.Because none of the reports was available at the time the Commission provided itsadvice to the Minister, they cannot assist with the analysis of the grounds of reviewpursued in the High Court. The appeal is necessarily confined to those same issuesand the lawfulness of the advice based on the information available to the Commissionat the time.[22] While the IPCC reports provide updating evidence about the threat of climatechange and the action needed to combat it, there is no dispute between the partiesabout the seriousness of the threat or the urgent need for action requiring fundamentalchanges both domestically and globally.[23] As for the MfE report, the Judge accepted LCANZ's evidence and submissionshighlighting the significance of the accounting methodology in assessing emissionsreductions required to meet targets.19 In rejecting this aspect of LCANZ's judicialreview challenge, the Judge found that the Act does not "hard-wire" the accountingmethodology to be used for tracking progress towards emissions targets.20 This is aquestion of law and LCANZ accepts that the further evidence will not assist in itsresolution.18 MfE report, above n 11, at 49.19 High Court judgment, above n 2, at [272].20 At [255].[24] Mr Every-Palmer KC, for LCANZ, submitted that the MfE report may beparticularly relevant in the context of the notice filed on behalf of the Commission ofits intention to support the judgment on other grounds. However, the notice relatesonly to the fourth ground of review and is concerned with whether the appropriatestandard of review is Wednesbury unreasonableness rather than the more exactingstandard applied by the Judge.21 The MfE report will not assist with the resolution ofthat issue, which is a question of law. In response to questions from the Court,Mr Every-Palmer submitted that the MfE report will assist in two ways. First, itdemonstrates the orthodox use of the accounting methodology urged by LCANZ.Secondly, it provides a useful cross-check which broadly confirms the evidence givenby Dr William Taylor on behalf of LCANZ in the High Court. However, the Judgeaccepted this evidence and the Commission's notice to support the judgment on othergrounds does not raise any challenge to it.[25] We are therefore not persuaded that the MfE report will provide any materialassistance to the Court in the determination of this appeal.[26] For these reasons, we conclude that the proposed evidence is not cogent andshould not be admitted.Result[27] The application to adduce further evidence is declined.[28] Costs are reserved.Solicitors:Gilbert Walker, Auckland for AppellantLuke Cunningham Clere, Wellington for First RespondentCrown Law Office | Te Tari Ture o te Karauna, Wellington for Second Respondent21 The Judge applied a standard which involved examining whether the challenged decisions hadbeen reached on sufficient evidence and had been fully justified, while recognising that reasonabledecisions makers could reach different decisions: [75]–[76], citing Kim v Minister of Justice[2017] NZHC 2109, [2017] 3 NZLR 823 at [13] and [15]; and Kim v Minister of Justice ofNew Zealand [2019] NZCA 209, [2019] 3 NZLR 173 at [45]–[47].