New Zealand

In New Zealand, there has been at least one case against private actors for allegedly breaching the law by carrying out operations that contribute negatively to climate change.

In Smith v. Fonterra Co-operative Group Limited, the New Zealand High Court allowed a claim to proceed that is grounded in a duty of care of corporations to the public for their emissions. Smith brought tort claims against several operators of greenhouse gas emitting facilities, including dairy farms, a power station, and an oil refinery. Smith alleged that the defendants’ contributions to climate change constitute a public nuisance, negligence, and breach of a duty to cease contributing to climate change. The Court held that Smith could not demonstrate public nuisance or negligence but declined to strike out the common law duty of care claim, although the Court indicated significant hurdles existed for such a claim to succeed. Resolution of that claim is pending trial. The Court rejected the public nuisance claim on the grounds that the plaintiff did not demonstrate special or particularised damages and the connection between the pleaded harms and defendants’ activities were too indirect and not sufficiently linked to the relief sought, as a grant of relief would not stop the harm. Defendants’ compliance with statutory and regulatory requirements presented an additional hurdle to a successful public nuisance claim. The Court found Smith’s negligence claim was premised on a novel duty of care that was untenable.

As this case demonstrates, the necessity to show particularised damages caused by the alleged tortious conduct may limit the availability of tort causes of action for climate-induced harms. However, where these thresholds can be met, there are several potential remedies available, including injunctive relief to prevent the continuation of certain damaging activities or to impose necessary mitigation or adaption measures.