Submission to the New Zealand Justice Select Committee on the Climate Change Response (Tort Liability) Amendment Bill

This submission to the New Zealand Parliament responds to a call by the Chairperson of the Justice Committee for submissions on the Climate Change Response (Tort Liability) Amendment Bill. The Bill seeks to confirm that the role of developing, setting and implementing regulatory policy regarding greenhouse gas emissions sits with the executive and the legislature. It would do so by amending the Climate Change Response Act 2002 to create a statutory bar on tort liability for emissions-related climate change effects. The bar would apply so that no person (including the Crown) could be found liable in tort for emissions-related climate change effects. This Bill responds to the pending trial of the claim in Smith v. Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134.

The submission draws on research by the Grantham Research Institute on Climate Change and the Environment on climate change law and governance, primarily the Institute’s annual Global Trends in Climate Change Litigation Snapshot series, which charts the evolution of climate change litigation over time.

Key messages

The authors highlight five major concerns about the Bill, placing the legislation in the context of global developments in climate change law.

1. The claim that the Bill is needed to ensure regulatory coherence is misguided. Climate cases against private actors have been brought before courts around the world. Judges have consistently shown deference to the legislative and executive functions in considering how private law applies in the context of climate change.
2. There is no evidence the Bill will create a favourable business environment through increasing regulatory certainty. Instead, it risks undermining investor perception of the rule of law in New Zealand, particularly as it would make New Zealand an outlier in its response to climate litigation.
3. The current draft of the Bill lacks nuance, and creates a bar on multiple forms of climate claims without differentiating between them, risking unintended outcomes.
4. The Bill is inconsistent with New Zealand’s international obligations in respect of human rights, climate change and the environment.
5. The Bill takes a short-term view that is likely to result in shifting the burden of climate-related costs from high-emitting companies onto taxpayers and affected communities.