The Zero Carbon Act: Who can hold the government accountable?

Published on: July 7, 2017

Filed Under: Analysis, The Zero Carbon Act

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One of the Paris Agreement’s biggest flaws is its lack of accountability mechanisms. For the Zero Carbon Act (ZCA) to be successful this flaw cannot be mirrored at a domestic level.

Generation Zero intends to use judicial review as its primary mechanism for holding Ministers to their duties under the Act. In addition to the ultimate target of reaching net zero carbon emissions by 2050 or sooner, these duties include setting five-year carbon budgets and producing policy plans that set out how these budgets will be met. The Act also establishes a Climate Commission to recommend policies and report on progress. The Minister is then required to publicly respond to these recommendations and state their reason if they choose to deviate.

Judicial review is a procedure by which the High Court can review an administrative decision made by a public body. In the case of the ZCA, the Court may be able to consider whether government decisions were consistent with their obligations to act within their five-year carbon budgets. The Act needs to balance the need strong accountability mechanisms with questions of political palatability. Considering the significance of the Act, checks on the government’s power should be ambitious. However, the Court should not be perceived to have policy-making power and should not be able to arbitrarily override government decisions.

The question of who can bring a claim in judicial review within the ZCA is a key. To trigger a review the person or organisation bringing the claim must have standing, or the ability to bring the case before the court. Traditionally, to have standing you must be able to show the decision you want to review is a direct breach or threatened breach of your rights.1 Because of this, standing is ordinarily the biggest barrier to enforcing environmental rights.2 To remove this hurdle we consider it best for the ZCA to explicitly state who has standing for the purpose of judicial review under the Act. In this regard we would be departing for United Kingdom’s Climate Change Act from which the ZCA is modelled. The UK Act is silent on issues of standing and it is actually unclear whether decisions made under the Act can be subject to judicial review.3 As yet this hasn’t been an issue as all the Act’s procedures have been followed. However, this lack around clarity around the UK Act’s enforceability does seem to undermine its effectiveness and we would favour the ZCA taking a different approach.

There are a number of different ways standing could be prescribed within the ZCA. One option is to give standing to anyone affected by climate change. This is in line with the conventional approach at common law. Generally you would expect this to be sufficient as the consequences of climate change are so pervasive. However, it may create an issue for organisations that wish to bring a claim in judicial review unless there is some form of public interest standing. This would allow anyone to bring a claim if they have a serious issue and a sufficient interest or mandate to protect an interest.4 It would also allow environmental organisations such as Generation Zero to bring claims. Intergenerational standing could also be prescribed to allow the court to accept claims on behalf of future generations.5

The best approach would be to simply prescribe for open standing. This would mean any New Zealand citizen or organisation could bring a claim under the Act. There is precedent for the use of open standing in the context of environmental law. The Environmental Planning and Assessment Act of New South Wales allows ‘any person’ to challenge a decision under the legislation.6 South Africa’s National Environment Management Act is another good example of an open standing regime, allowing anyone bringing an ‘environmental issue’ to be heard.7

In reality, the main barrier to bringing a claim is likely to be financial. This is especially true in New Zealand where private funding and lawyers willing to donate their time are both scarce. While this will be effective in preventing frivolous claims, we consider a mechanism for decreasing litigation costs to be worth considering. This would reflect New Zealand’s international law obligations under article 10 of the Rio Declaration to provide ‘effective access to judicial and administrative proceedings’.8 One solution would be to create a publically funded ‘Environmental Defenders Office’, as exists in many Australian states. However, it is unlikely that the government would willing to take such an approach. A more pragmatic solution may to remove the loser-pays rule in public interest cases.9 Such an approach would decrease the financial risk of bringing a claim in cases where the result is difficult to predict.

Overall, we consider the best approach is to allow all New Zealanders and organisations to judicially review government decisions made under the ZCA. Open standing should be explicitly detailed in the Act and supported by a mechanism for decreasing the cost of bringing public interest cases.

Harriet Willis

Footnotes

1 P Cane, ‘The Function of Standing Rules in Administrative Law’ [1980] Public Law 303; C Hilson and I Cram, ‘Judicial Review and Environmental Law: Is there a Coherent View of Standing?’ (1996) 16 Legal Studies 1.
2 BoHao (Steven) Li “Joining the Aotearoa New Zealand Constitutional Debate: Constitutional Environmental Rights in our Future ‘Constitution’” (LLM Research Paper, Victoria University, 2013).
3 Jonathan Church “Enforcing the Climate Change Act” (2015) 4 UCL J. L. and J.
4 Bonine, John E. (2008) “Best Practices–Access to Justice (Agenda for Public Interest Law Reform)” www.accessinitiative.org, at 12.
5 J. R. May and E. Daly Global Environmental Constitutionalism (Cambridge University Press, Cambridge, 2014) at 140.
6 Environmental Planning and Assessment Act 1979 (NSW), s 123.
7 National Environment Management Act 1998 (South Africa), s 32.
8 Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992), Principal 10.
9 Above, n 4 at 19-32.

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