The Lawyers for Climate Action have taken court action against the Climate Change Commission (file image). Photo: RNZ / Cole Eastham-Farrelly
The Court of Appeal has finished hearing a challenge to the Climate Change Commission by a group of lawyers wanting faster emissions cuts.
In the process, the court traversed some heated moments (literally) and a series of dinner party-related analogies, involving baguettes and wine.
The court has reserved its decision.
The parties
The commission was created under the Zero Carbon Act as a source of independent advice to the government.
Its advice is crucial to setting the country's annual caps on climate pollution and also guides the government on other matters, such as how to adapt to climate hazards and - once - whether New Zealand's previous emissions target under the global Paris Agreement was compatible with keeping heating inside 1.5C. (It was not).
Lawyers for Climate Action was formed to push for stronger climate progress, and clocked its first big success this year when it (ironically, in light of this week's case) got the government to reverse a decision to ignore the climate commission's advice.
The lawyers' group took issue with the commission's advice on New Zealand's emissions budgets and the country's 2030 greenhouse gas target (something all countries have to submit under the Paris Agreement), saying the targets were much too weak, but had been dressed up to look adequate.
Since the Zero Carbon Act does not allow people who disagree with the commission's advice to appeal the advice on it merits, the lawyers' group took a judicial review, arguing (roughly speaking) there had been a fundamental mistake or unreasonable decision by the commission when it came to prepare its advice.
The High Court ruled against the lawyers and they appealed - leading to this week's Court of Appeal hearing.
The arguments
Lawyers for Climate Action said there was no way the commission's recommendations for how fast New Zealand should cut emissions were compatible with the planet staying inside 1.5C heating.
The groups said the recommendations were so far from being adequate that they were illegal, because "contributing" to the global goal of staying inside 1.5C was written into the purpose of the Zero Carbon Act, the law which created the commission.
The lawyers' group also said the way the commission did its sums to calculate New Zealand's climate progress made the country look like it was on target to do its share towards the global goal, when it really was not. It said the correct way to calculate whether the country was on target was to count all emissions and sinks (using a particular kind of accounting) and measure that against the pathways to staying inside 1.5C laid out by the top climate science body, the Intergovernmental Panel on Climate Change (IPCC).
In reply, the commission said it carefully considered the 1.5C goal when it was devising its advice, and followed all the accepted rules for counting emissions to get there.
It said New Zealand was on track to do its part, but cutting emissions as fast as the lawyers' group wanted New Zealand to would have "potentially catastrophic" economic consequences.
The commission said making those kinds of judgment calls - not only how fast to go, but how to calculate emissions, was for it to decide, as an expert body.
The commission's lawyers pointed out that Zero Carbon Act did not include a right of appeal, so they argued the advice could only be challenged in very narrow circumstances.
The commission and the Crown used the appeal to urge the court to wind back some aspects of Justice Mallon's High Court judgment, which they feared might be seen as allowing too wide a leeway to appeal, and encouraging people to try to get the courts to interfere in advice they did not agree with.
They stressed the fact that the climate change minister still made the ultimate call on what to do with the commission's advice.
Where did the baguettes come in?
Assisted by various lawyers, members of the court spent some time debating the meaning of "contributing" to global efforts to keeping the planet inside 1.5C hotter, throwing around various dinner party analogies.
Was it enough to be like the party guest to who brings a supermarket baguette to the party when someone else has gone to a lot of trouble, pondered one of the judges. What if you brought a bottle of BYO wine to a restaurant, but gave your fellow diners fair warning that you would not help pay the restaurant wine bill?
The lawyers' group argued that while contributing could mean different things, at some point a country would not be contributing, or even working against the goal.
At one stage, the air conditioning malfunctioned and the court became so physically hot that lawyers were given permission to remove their outer robes.
Other times, lawyers' allegations were heated.
The commission's submissions characterised two of the experts for the lawyers' group as being merely "interested lay people" rather than experts on the specific subject, while the lawyers' group described some of the commission's methods as "nonsensical".
What about the pine trees?
Much of the disagreement over carbon accounting centred on pine trees, and whether the government (aided by the commission's advice) was using its way of accounting for trees to hide a trend of rising emissions.
The issues arose because New Zealand's huge swathes of commercial plantation pines create swings in net emissions, which in this context means emissions from human activities (such as cars, factories, power stations and farms) minus the carbon dioxide sucked in by planting trees.
Many of New Zealand's existing pine forests were planted over a relatively short time period before 1990, before New Zealand's international climate change commitments kicked in.
It so happens that 1990 was a bumper year for emissions sucking by these trees (at their growth peak, they made the country almost carbon-neutral). The end-year of New Zealand's Paris target, 2030, is a notable low point, when lots of trees are somewhere around the harvest point in their cycle.
Depending on whether these trees are in a harvest cycle or a growth phase, they can make the country's annual emissions total very high or very low, even if underlying fossil fuel emissions and permanent forests have not changed.
The commission said that was a red herring. By following the ups and downs of the harvest cycle, it is easy to miss the underlying trends - and the cycle will even out in the long term (unless the forests are permanently cut down).
The commission and the government decided it was better to leave these trees off their Paris Agreement carbon accounting, which they use to work out how New Zealand is doing against its international 2030 target.
When it came to applying the IPCC's carbon-cutting trajectories, the commission said countries were always intended to adapt these to their individual circumstances.
The lawyers' group disagreed. It argued it was what the atmosphere actually saw each year that mattered, and particularly how this tracks between now and and the politically critical 2030 target year. (2030 is not only the end point of the government's first Paris target, it is the year by which the IPCC says emissions need to have roughly halved, in order to be in line with 1.5C maximum heating).
The group argued the commission was wrong to use its modified pine maths to work out New Zealand's progress and the picking and choosing obscured a lack of real climate action.
In fact, Lawyers for Climate Action said, "true" net emissions (counting all those trees) could be higher in 2030 than in 2010 and New Zealand could still meet its Paris target. It argued that simply cannot be consistent with what was needed to stay under 1.5C, as laid out by the IPCC.
In court, the group showed a graph revealing emissions (including those pine trees) trending up decade-on-decade and ending up, in 2030, higher than 20 years before.
But the commission argued that was not the end of it.
It presented its own graph, showing what happened after 2030.
Following along with the fuller accounting of pines for a few more years, it showed net emissions dropping sharply to the point of reaching net zero in 2038.
The commission argued that apparent win was not 'real' climate action - it is mainly because of the pines growing back again, not real emissions cuts. In other words, while leaving these trees out of the picture made New Zealand look better at first, it made us look worse after 2030 - so it was better, and fairer to leave them out.
The climate commission is not the only one to use this modified tree accounting - the government also uses the same method.
While the commission agreed it had tailored its climate maths to suit New Zealand's circumstances, it argued this was what all countries could and should do.
