Court of Appeal rejects advocacy group’s bid for new evidence against Climate Change Commission

The Lawyers for Climate Action NZ challenged the Commission's advice on climate policy and action

Court of Appeal rejects advocacy group’s bid for new evidence against Climate Change Commission

The Court of Appeal has rejected the Lawyers for Climate Action NZ's (LCANZ) application to adduce further evidence in support of its challenge to the Climate Change Commission’s advice on climate policy and action in the country.

In 2021, LCANZ applied for a judicial review of advice provided by the Commission to the Minister of Climate Change. This advice focused on New Zealand's commitments under the Climate Change Response (Zero Carbon Act) Amendment Act 2019. The crux of LCANZ's challenge revolved around two aspects—the Nationally Determined Contribution (NDC) Advice and the budgets advice provided by the Commission.

The NDC advice concerned whether an international commitment made by New Zealand in 2016 as to the level by which it would reduce its greenhouse gas emissions by 2030 was consistent with global efforts to limit global warming to 1.5ºC above pre-industrial levels. The Commission determined that the 2016 NDC was inconsistent with the 1.5ºC global effort and provided advice on the level of commitment that would be compatible with it.

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The budgets advice concerned budgets for New Zealand's emissions of all greenhouse gases from 2022 onwards. These budgets set the quantity of emissions permitted for specific periods.

In 2022, the High Court dismissed LCANZ's claims. LCANZ appealed and sought to adduce new evidence, primarily consisting of reports from the Intergovernmental Panel on Climate Change (IPCC) and a Ministry for the Environment (MfE) report.

These reports were published after the High Court hearing. LCANZ argued that these reports provide an up-to-date picture of the effects of climate change and the action needed to combat it. It said the information will help the court understand the complex and multi-faceted issue of climate change.

The Commission opposed LCANZ's application, arguing that the reports post-date its advice. The Commission asserted that the information could not be relevant to the grounds of review advanced in the High Court and would not assist the appellate court in determining the appeal.

The Court of Appeal ultimately rejected LCANZ's application to adduce new evidence. The court emphasised the well-established criteria for admitting new evidence on a civil appeal. The evidence must be fresh, credible, and cogent. In this case, the evidence was deemed fresh and credible but not cogent because it was not available to the Climate Change Commission when it formulated its advice.

The court held that the new evidence could not materially impact the appeal because it could not assist in analysing the grounds of review that were pursued in the high court. The appeal was limited to the issues raised during the initial proceedings and the lawfulness of the advice based on the information available at that time.

While acknowledging the seriousness of the climate change threat and the need for urgent action, the court concluded that the proposed evidence would not provide material assistance in resolving the appeal.

The legal battle between LCANZ and the Climate Change Commission is scheduled to continue, with the appeal set to be heard later this year.  

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