Lawyers for Climate Change Minister James Shaw argue the Government isn't required to reduce emissions in line with 1.5 degrees, despite Shaw telling Newsroom the opposite
The Zero Carbon Act's references to limiting global warming to 1.5 degrees are merely "aspirational" and don't impose a specific duty on the Government, lawyers for Climate Change Minister James Shaw told the High Court on Friday.
That contradicts what Shaw told Newsroom in January 2021, when he said the law required both the Government and the Climate Change Commission to act in a manner consistent with limiting warming to 1.5 degrees.
Whether the Act places such an obligation on the Government is a crucial question in ongoing legal action against the commission and Shaw by a group of lawyers who want greater action on climate change. They say the commission abdicated its duties when it recommended emissions budgets that weren't consistent with the 1.5 degree target.
Shaw himself made that argument in comments to Newsroom in January 2021, when the Climate Change Commission released its draft advice. He was asked whether the Government would agree with the commission's final budgets and suggested it likely would.
"The Government and the Commission are both required by the law to act in a way that's consistent with a 1.5 degree temperature threshold pathway. When you look through the Commission's advice, it is really clear that that's what they have done. All their modelling's built around that consistency," he said.
"If we wanted to come up with a different emissions budget than the one that they're recommending, the Government would still be required to act within a 1.5 degree pathway. So that suggests that any alternative that we come up with would have to be stronger than what the Commission are proposing, because anything weaker almost certainly would not be consistent with a 1.5 degree pathway so then we'd be breaking the law."
After Newsroom first published this story on Wednesday, Shaw told Newsroom he backed his past comments.
"I want to be really clear about this: I do not regard 1.5 as merely aspirational. I regard it as absolutely mandatory and I made a number of statements during the passage of the Zero Carbon Bill to that effect," he said. As Climate Change Minister, Shaw was the minister responsible for the legislation when it was passed by Parliament.
"I haven't seen the transcript of the case last week and obviously it's still before the court so I can't comment specifically on that. But, everything flows, for me, from the requirement to stay within 1.5 degrees of global warming."
However, he hedged on whether this would apply to all Government actions. "There may be matters around the law which are open to interpretation. That, to me, would suggest that it would need tightening up. It will be interesting to see where this particular case lands, because that might offer us some clarity on which matters are open to interpretation."
At issue are two sections of the Climate Change Response Act, Section 3 on the purpose of the law and Section 5W. The purpose section says the law's purpose is to, among other things, "provide a framework by which New Zealand can develop and implement clear and stable climate change policies that contribute to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5° Celsius above pre-industrial levels".
Section 5W states, "The purpose of this subpart ... is to require the Minister to set a series of emissions budgets with a view to meeting the 2050 target and contributing to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5° Celsius above pre-industrial levels". Shaw is also required by the Act to ensure the budgets can be met domestically and that they provide greater predictability for the country about its decarbonisation pathway.
The climate lawyers believe Section 5W requires Shaw to separately consider New Zealand's 2050 targets (to reach net-zero emissions of long-lived gases and a 24 to 47 percent reduction in methane from agriculture and waste) and what action would be 1.5-consistent, while the commission and Government believe these are one and the same.
"In light of the urgent need to approximately halve emissions from 2010 levels by 2030 to limit warming to 1.5˚C, in preparing the Budgets Advice the Commission needed to give at least equal weight, if not primacy, to that aspect of the statutory purpose, rather than simply focusing on the 2050 Targets," Lawyers for Climate Action New Zealand (LCANZI) argued in court filings.
"There is very little discussion in the Advice of how Aotearoa New Zealand’s domestic 'contribution' to the global 1.5˚C effort should be assessed or calculated or what would be an equitable contribution relative to other countries."
The commission defended itself by saying that domestic emissions reductions outlined by the budgets were only one piece of the puzzle. Even if they weren't consistent with 1.5 degrees, New Zealand's international target under the Paris Agreement (which includes paying other countries to reduce emissions) could be.
In its final advice, the commission also said New Zealand's 2050 targets were set with an eye to 1.5-consistent pathways.
"At a high level, this means that any emissions budgets set to meet our domestic [2050] targets are also consistent with what Aotearoa needs to do to meet international obligations" like the 1.5 degree goal, the advice stated.
In filings to the High Court and in verbal arguments last week, Crown Law acting on Shaw's behalf also disputed LCANZI's interpretation of the law.
"LCANZI effectively seeks to elevate the statutory purpose under [Section 3] into an independent statutory duty. However, the section is clearly not phrased as an enforceable duty, but simply a standard purpose clause (which normally functions as an aid to interpretation, as opposed to creating an obligation for the Crown to meet)," the Crown's submission read.
Crown Law counsel Polly Higbee told the High Court references to 1.5 degrees used "broad, aspirational language" and it would be "too prescriptive" to argue that the purpose section placed any actual duty on the Government. That contradicts Shaw's own view as expressed to Newsroom in January 2021 and on Wednesday.
The parties also disagreed with one another on what it would take for New Zealand's emissions budgets to be considered consistent with 1.5 degrees, though all agreed that it was at least a partly subjective call based on what New Zealand's "fair share" contribution to the global fight against climate change might be.
All parties to the proceedings do say it is crucial that the world limits warming to 1.5 degrees.
The Intergovernmental Panel on Climate Change (IPCC) concluded in a special 2018 report that twice as many animals, insects and plants will be exposed to habitat loss at 2 degrees of warming, compared with 1.5 degrees. Sea ice-free arctic summers would be 10 times more common. Coral reefs could go completely extinct.
These findings were further bolstered by the IPCC's 2021 report on the physical science basis for climate change. That study found an extreme heat event that might have occurred once every 50 years before 1850 would occur once every six years if warming was limited to 1.5 degrees or twice every seven years at 2 degrees. Over coming centuries, sea levels would rise six metres if warming was limited to 2 degrees, compared with two to three metres of rise at 1.5 degrees.
