New Zealand

In New Zealand, project approvals have been challenged based on their climate impacts. 

Climate advocacy groups recently sought judicial review of the New Zealand transport agency’s decision to fund and build the Mill Road project, asserting the highway would increase carbon emissions by inducing more road traffic and enabling urban sprawl.  The government subsequently withdrew the project, citing the project’s costs.

In the planning law context, cases have deemed the consideration of future climate impacts appropriate in the context of development projects. Nearly a decade ago, the Environment Court upheld a Council decision declining consent for the development of residential property in a coastal area likely to be affected badly by erosion and inundation within a 50-year time period.

There has also been a series of cases alleging that project-specific approvals by local authorities have failed to properly take into account greenhouse gas emissions. These cases have manifested in the context of challenges to local authority consents for specific projects. Environmental organisations have mounted challenges to local bodies’ decisions to grant consent for activities involving the discharge of greenhouse gases in a number of instances. Since 2004, New Zealand legislation has specified that Councils must exclude from consideration the effects of discharges on climate change, except where use or development of renewable energy enables a reduction in discharges. In the context of project-specific authorisations, the Supreme Court has examined the legislation, making similar findings to this effect in both instances.   New legislation in the form of a proposed new Natural and Built Environments Act (NBA) may carry forward this policy orientation of nationally centralised management of climate change mitigation, rather than delegating this task to Councils via approval decisions.

As to the potential for judicial review of administrative decision-making concerning the implementation of New Zealand’s international climate change commitments, including the authorisation of major new infrastructure, the Thomson case provides some indication of the likely complex scientific and justiciability issues that would be raised. As discussed under scenario 1, the decision in Thomson signals that courts in New Zealand may be inclined to adjudicate challenges to national climate policies provided they can be framed within the limits of justiciability.