The case is easily told. Mike Smith, an indigenous activist fighting climate change, filed a lawsuit against seven large New Zealand companies for their carbon emissions. Smith claims that they are causing him harm.
The case falls under what lawyers call ‘tort law’. It is an ancient branch of the common law dealing with making good damage unlawfully caused to one person by another.
In his case, Smith argued that the seven companies were responsible for the torts of ‘public nuisance’, ‘negligence’ and a hitherto unknown tort of ‘damage to the climate system’.
Armed with these claims, and supported by pressure group Lawyers for Climate Action, Smith went to court. The defendants promptly applied to strike his claims out. In legal parlance, such a ‘strike out’ means that the court considers a claim too frivolous to be taken seriously.
In the first instance, the High Court struck out Smith’s public nuisance and negligence claims.
However, the High Court allowed Smith to take his damage to the climate system forward, not least to see whether that fabled new tort really exists.
The Court of Appeal did not think so. It threw out Smith’s whole case.
This is where Smith’s case would have ended, had it not been for the New Zealand Supreme Court, the highest court in the land. A couple of years ago, it permitted Smith to argue his case.
Last week, we finally learned the verdict. The Supreme Court not only allowed Smith to have his claim of damage to the climate system heard in the lower court. It did so on all three alleged torts.
You do not have to be a lawyer to understand the problems with New Zealand’s top judges’ decision last week. But perhaps one must be a lawyer to come up with it.
To be clear, the Supreme Court did not decide that Smith will eventually win his case. But it does mean that the court believes that he might.
Still, is this a logical analysis of Smith’s claims?
To answer this, we need to consider a little background on climate change and New Zealand’s policy for dealing with it.
In the grand scheme of planetary emissions, New Zealand is a rounding error. Of every tonne of global carbon emissions, New Zealand is responsible for 1.7 kilograms. Since Smith sued only seven New Zealand companies, his case is effectively about a few grams out of each global tonne of carbon emissions.
Now, in tort law, the general rule is that there must be a close link between a defendant’s actions and the plaintiff’s alleged damage. The legal standard is that it cannot be “too remote”, i.e. the specific action must be causally connected with the harm.
Could any reasonable person think there is such a close link? Would anyone seriously believe that a (globally speaking) tiny amount of carbon dioxide from a specific emitter would cause specific harm in Mr Smith’s life? Had the Supreme Court followed the Court of Appeal’s lead, the case would have been closed.
If the link between action and damage is too loose, then anything goes. According to chaos theory, the flap of a butterfly’s wing can cause a hurricane. By Smith’s logic, if the butterfly had an owner, that owner should pay for the rebuild after the storm.
If this is already problematic, it gets worse. New Zealand has a legislative framework for dealing with carbon emissions: the Emissions Trading Scheme, or “ETS.” All non-agricultural emitters of climate gases in New Zealand must buy carbon units. These units permit them to emit these gases.
The seven companies Smith sued had such certificates for their emissions. So, they were complying with the rules and regulations put in place by Parliament and administered by government.
A key part of the rule of law is predictability. If you play by the rules and obey the law, you should not have anything to fear. So how could the companies find themselves sued when they are complying with environmental law?
But wait, not even that is the end of this absurd story. That is because of the way the ETS works.
Under New Zealand’s ETS, the government auctions and allocates a fixed number of emission credits each year. Trading in ETS units only determines who emits how much of that total amount.
If Smith is ultimately successful in his claim, the seven companies will emit less in future. However, under the logic of the ETS, others will emit more. New Zealand’s total emissions will not change by a single gram.
Suing the government for not running a tighter cap would have had some coherence. Suing individual participants in the market does not. Again, one would have expected the Supreme Court to take this into account. Obviously, it did not.
Absurdities abound in this case. Law students learn that without a reasonably close connection between action and damage, there can be no tort. Not so, apparently, in this case.
Law students also learn that statute is the dominant source of law. Of course, this does not prevent common law from being applied and developed. But in this case, the Supreme Court has opened the door for climate change to be brought into common law when a sophisticated statutory regime is already in place.
Moreover, trying to deal with climate change through the common law is doomed to fail under the ETS. In effect, the existence of the ETS makes any common law tort toothless and superfluous.
All of this is, frankly, concerning. The most troubling thing about the Supreme Court’s decision is the signal it sends: Matters of policy and politics (such as climate change) can be decided by the courts. In a democracy, however, voters elect Parliaments to deal with the problems facing society. How democratic would it be for the courts to usurp such matters from elected lawmakers?
New Zealand is lucky to be one of the world’s highest ranked countries for the rule of law. But with decisions like the one just delivered by the Supreme Court, one may wonder for how much longer.
Dr Oliver Hartwich is the Executive Director of The New Zealand Initiative think tank. This article was first published HERE.
In his case, Smith argued that the seven companies were responsible for the torts of ‘public nuisance’, ‘negligence’ and a hitherto unknown tort of ‘damage to the climate system’.
Armed with these claims, and supported by pressure group Lawyers for Climate Action, Smith went to court. The defendants promptly applied to strike his claims out. In legal parlance, such a ‘strike out’ means that the court considers a claim too frivolous to be taken seriously.
In the first instance, the High Court struck out Smith’s public nuisance and negligence claims.
However, the High Court allowed Smith to take his damage to the climate system forward, not least to see whether that fabled new tort really exists.
The Court of Appeal did not think so. It threw out Smith’s whole case.
This is where Smith’s case would have ended, had it not been for the New Zealand Supreme Court, the highest court in the land. A couple of years ago, it permitted Smith to argue his case.
Last week, we finally learned the verdict. The Supreme Court not only allowed Smith to have his claim of damage to the climate system heard in the lower court. It did so on all three alleged torts.
You do not have to be a lawyer to understand the problems with New Zealand’s top judges’ decision last week. But perhaps one must be a lawyer to come up with it.
To be clear, the Supreme Court did not decide that Smith will eventually win his case. But it does mean that the court believes that he might.
Still, is this a logical analysis of Smith’s claims?
To answer this, we need to consider a little background on climate change and New Zealand’s policy for dealing with it.
In the grand scheme of planetary emissions, New Zealand is a rounding error. Of every tonne of global carbon emissions, New Zealand is responsible for 1.7 kilograms. Since Smith sued only seven New Zealand companies, his case is effectively about a few grams out of each global tonne of carbon emissions.
Now, in tort law, the general rule is that there must be a close link between a defendant’s actions and the plaintiff’s alleged damage. The legal standard is that it cannot be “too remote”, i.e. the specific action must be causally connected with the harm.
Could any reasonable person think there is such a close link? Would anyone seriously believe that a (globally speaking) tiny amount of carbon dioxide from a specific emitter would cause specific harm in Mr Smith’s life? Had the Supreme Court followed the Court of Appeal’s lead, the case would have been closed.
If the link between action and damage is too loose, then anything goes. According to chaos theory, the flap of a butterfly’s wing can cause a hurricane. By Smith’s logic, if the butterfly had an owner, that owner should pay for the rebuild after the storm.
If this is already problematic, it gets worse. New Zealand has a legislative framework for dealing with carbon emissions: the Emissions Trading Scheme, or “ETS.” All non-agricultural emitters of climate gases in New Zealand must buy carbon units. These units permit them to emit these gases.
The seven companies Smith sued had such certificates for their emissions. So, they were complying with the rules and regulations put in place by Parliament and administered by government.
A key part of the rule of law is predictability. If you play by the rules and obey the law, you should not have anything to fear. So how could the companies find themselves sued when they are complying with environmental law?
But wait, not even that is the end of this absurd story. That is because of the way the ETS works.
Under New Zealand’s ETS, the government auctions and allocates a fixed number of emission credits each year. Trading in ETS units only determines who emits how much of that total amount.
If Smith is ultimately successful in his claim, the seven companies will emit less in future. However, under the logic of the ETS, others will emit more. New Zealand’s total emissions will not change by a single gram.
Suing the government for not running a tighter cap would have had some coherence. Suing individual participants in the market does not. Again, one would have expected the Supreme Court to take this into account. Obviously, it did not.
Absurdities abound in this case. Law students learn that without a reasonably close connection between action and damage, there can be no tort. Not so, apparently, in this case.
Law students also learn that statute is the dominant source of law. Of course, this does not prevent common law from being applied and developed. But in this case, the Supreme Court has opened the door for climate change to be brought into common law when a sophisticated statutory regime is already in place.
Moreover, trying to deal with climate change through the common law is doomed to fail under the ETS. In effect, the existence of the ETS makes any common law tort toothless and superfluous.
All of this is, frankly, concerning. The most troubling thing about the Supreme Court’s decision is the signal it sends: Matters of policy and politics (such as climate change) can be decided by the courts. In a democracy, however, voters elect Parliaments to deal with the problems facing society. How democratic would it be for the courts to usurp such matters from elected lawmakers?
New Zealand is lucky to be one of the world’s highest ranked countries for the rule of law. But with decisions like the one just delivered by the Supreme Court, one may wonder for how much longer.
Dr Oliver Hartwich is the Executive Director of The New Zealand Initiative think tank. This article was first published HERE.
6 comments:
An excellent summation, thanks Oliver. One can only assume that the judiciary can see work-flow issues looming (perhaps the end to the Treaty Industry?) and it's keen to ensure jobs for the boys (and, of course, girls), and itself, for many years to come? It seems the only solution is for Parliament to rein them in, which it must do before it makes us all look a laughingstock, not to mention wasting future millions on the litigation of a farce.
"New Zealand is lucky to be one of the world’s highest ranked countries for the rule of law".
Yeah right!! Tell that to the peaceful protesters trying to get OUR government to listen to the harms being done BY them to US.
NZ may be highly ranked by outsiders for the rule of law. True, if compared to the overt practices of say, Colombia or Sierra Leone. But in reality we can’t even define the law in NZ - common law ie the heritage of the colonials: tikanga which means what it means by Maori definition when it suits: the law of woke.
Then of course we have bullying, threats of violence and civil abuse ( think swearing in of new parliament last year) all of which are acceptable as cultural.
And of course, there is the subterfuge in the form of undisclosed payments and participation in covert pressure groups for example , by the likes of Adern, Key and others as recently discussed in this blog.
Then there is just basic dishonesty of which the Greens and one of their members has given a very recently example.
And NZ is not corrupt?
If you are going to be corrupt, then perversely, maybe overt corruption is more honest?
It's like when a crowd is politically annoying, is told to leave the grounds and in the process two protesters are arrested - made an example of. The wwhole crowd of thousands was allegedly causing damage but how to proportionately connect the damage (like making harder for some people to get to work) to those two? When making the judgement is the law supposed to take into account that 99.98% were not charged, and that a connection to 0.01% of the damage is significant?
On Parliament Grounds people believed they had the right to be there and protest (paid their ETS-like tax.) It's interesting to see what FOIA request has produced today about the vaccine program, the subject of that protest.
So, by extension, everyone who breathes, farts or kills a plant, is guilty by association of causing Smith's harm.
Pity the harm is only imaginary, or we could be rid of such a toxic creature.
Richard said
Maybe the Supreme Court saw an opportunity for the hysteria and false hypotheses surrounding climate change to be brought out into the open.
Smith has no chance of winning as the companies concerned are working to meet the legislation, no matter how misguided that law is, but if the defendants take the bull by the horns and introduce some actual experts into the argument then maybe the truth about climate change will be revealed.
If the case is dealt with in a logical manner, rather than as a response to an attack on the companies record under the legislation, New Zealand could be the first country in the world to actually have a serious conversation about the issue.
I wonder what such a conversation might reveal, my personal opinion is that it would show that we have been misled and that climate change is nothing more than the result of a decadenal fluctuation in solar activity.
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