High Court denies costs to Climate Change Commission in suit by Lawyers for Climate Action NZ

The High Court has refused to award costs to the Climate Change Commission in a legal challenge filed by the Lawyers for Climate Action NZ (LCANZ).

LCANZ applied for judicial review against the newly established Climate Change Commission and the Minister for Climate Change. LCANZ challenged the commission's advice to the minister under the Climate Change Response Act 2002 following significant amendments to the act in response to the climate emergency.

The court dismissed LCANZ's application for judicial review. However, the High Court agreed with LCANZ on several contested issues, including that:

• the commission's advice was amenable to review,
• the expert evidence was admissible, and
• the commission's advice on the level of New Zealand's emissions reductions required by 2030 to be compatible with the global efforts to limit global warming to 1.5°C was potentially misleading.

The court noted that the commission's task was a “very important one.” Quoting University of Illinois Professor Emeritus Donald Wuebbles, the High Court said that climate change was
“perhaps the most important issue humanity has ever faced.” The court added that judicial review provided an important check on the commission's work and that unsuccessful challenges could bring with it the public benefit of legitimacy to the commission's work.

The court directed the parties to submit briefs if there were any questions as to costs. The Minister for Climate Change did not seek costs, reflecting the Crown's perspective of the public interest litigation and the reasonableness of LCANZ's conduct of the proceeding.

However, the commission sought costs of $128,492, saying that “it [was] not to the public benefit for the Commission to be diverted from its work and expend resources to defend unsuccessful legal challenges.”

The commission pointed out that the costs regime was intended to preserve the ability of the commission to perform its role. It said its work was likely to be contentious, and the government actions that would follow could impact society and the economy.

The court agreed that any challenge to the commission's work would not be exempt from a costs order. It would only depart from this general principle if it was appropriate to do so under the circumstances presented before it, where “the proceeding concerned a matter of public interest, and the party opposing the costs acted reasonably in the conduct of the proceeding.”

In this case, the court considered it appropriate to depart from the general principle. The commission's role was to advise the minister periodically and review the government's progress toward emissions reduction and adaptation goals. The court pointed out that LCANZ's proceeding concerned the first time the commission advised the minister according to new amendments to the Climate Change Response Act.

The court said the LCANZ was a group qualified to consider the legal issues on which the grounds of review were based. LCANZ had challenged points that would not require relitigating in the future. The court also noted that LCANZ was not seeking pecuniary or other direct benefits. It advanced high-level principles and interpretation issues of general application rather than minor or narrow issues of limited significance.

The High Court concluded its decision by saying that while there were material costs to the commission in defending the proceeding, the case was an appropriate opportunity to apply the principle that “costs are to lie where they fall.”