Climate Change Minister Simon Watts. Photo: RNZ / Samuel Rillstone
A landmark ruling by the United Nations' highest court puts further pressure on the New Zealand government over a large hole in its climate plans, a group of climate lawyers say.
Another litigant taking on big polluters calls it a "a ray of sunshine" - while the climate minister will only say it's "long and complicated".
The International Court of Justice (ICJ) found overnight that countries can be responsible for paying reparations for damage caused by their greenhouse gases.
It also said governments are legally obliged to set climate targets that are consistent with keeping temperatures within 1.5C (not 2C) and that they must "pursue measures capable of achieving" those goals.
The decision said states could be in breach of international law for failing to address fossil fuel consumption, granting fossil fuel exploration licenses, and providing fossil fuel subsidies, something the New Zealand government is doing with its $200 million fund for drilling.
New Zealand is currently on track to be over 80 million tonnes of emissions short of meeting its 2030 climate target, because the coalition government has broken with plans by previous governments to meet the target largely by buying carbon credits from overseas.
The coalition has been told there is no feasible way to meet the target purely inside this country, without some kind of offshore deal.
While Climate Change Minister Simon Watts has acknowledged that this is true, he has so far ducked making any public commitment to closing any of the necessary deals beyond "exploring options".
At times, ministers have explicitly said the government wouldn't spend money offshore to meet the target, despite officials warning them that their inability to explain how New Zealand would close the gap would lead to overseas scrutiny.
Jessica Palairet, executive director of Lawyers for Climate Action, said the international ruling confirmed that paying lip service to international climate targets wasn't enough. Under the Paris Agreement, countries' targets are known as NDCs, or Nationally Determined Contributions. The first ones run from 2021-2030, and the second set from 2031-2035.
"The judgment confirms that New Zealand can't just say it hopes it will meet the NDC and that it's committed to our targets, it has to take real and demonstrable steps towards meeting it, it has to demonstrate that intent to meet it. The judgment clarifies that, and I think in the face of an 89 million tonne hole, there are real questions about whether or not we're doing that," she said.
"When we made the NDC commitment in the first place, we had a plan for how we were going to meet the gap, but the government is changing course and the ICJ starkly brings into focus whether that is lawful."
Palairet said the ruling also sharpened questions over whether New Zealand's second Paris Agreement target, out to 2035 was aligned with curtailing heating within 1.5C.
Watts has defended the new target of 51-55 percent reductions by 2035, saying the cuts were difficult to achieve and met the definition of ambition, but several experts - and independent advice - disagreed.
"There have been real questions raised about whether our second NDC is 1.5 degrees aligned," Palairet said.
"Put it this way, Simon Watts specially asked officials for the second NDC to align with domestic emissions budgets, to avoid having to pay offshore mitigation."
"The problem is that our domestic emissions budgets are set according to a test that's different to the NDC.....and where that leaves us is we have an NDC that likely isn't 1.5 degrees-aligned likely doesn't reflect highest possible ambition and likely doesn't reflect our fair share," she said.
"The ICJ opinion really draws into sharp focus whether that is lawful."
Palairet said court's opinion that 1.5C was a binding target could also have implications for the government's plans to lower the country's methane target.
The coalition has been considering lowering the goal for methane reductions from between a 24 and 47 per cent by 2050 to between 14 and 24 percent.
"The ICJ opinion has crystalised 1.5C as the target states have to work towards," Palairet said.
"The government is considering reducing our methane target to 14 percent," she said.
"The problem is that government's own independent expert advisory panel said that a 14 percent target was consistent with 2C, so I think there's a real question if New Zealand reduces its methane target to 14 percent, whether that's consistent with international law."
Palairet said the government's gas and oil exploration subsidies and backtracking on the ban on new offshore exploration might also be incompatible the court's statements.
"The ICJ had really strong statements on those kind of subsidies and decisions being in breach of international legal obligations."
"It's advisory only, it's non-binding but it is really authoritative and it holds significant legal and moral authority and it's very likely going to be used in court cases all around the world, including New Zealand court cases."
That might include Lawyers' for Climate Action's existing judicial review against Watts, which argues there are glaring holes in the country's emissions reduction plans.
Minister responds
The world's top greenhouse gas emitters denied they had any obligations beyond the UN framework convention on climate change (UNFCCC) and the 2015 Paris agreement.
The court rejected that argument, saying a range of other treaties applied, including the UN convention on the law of the sea, the Vienna convention for the protection of the ozone layer, the Montreal protocol, the convention on biological diversity and the UN convention to combat desertification. It also said states were obliged to cooperate to solve climate change.
Asked to comment on the ruling, Watts sent a written statement noting the advisory opinion had been issued.
"Climate change is an important issue in our region, and we know our Pacific Island neighbours are following this development closely," it said.
"This is a long, complicated opinion, and New Zealand will study it carefully before commenting on the substance."
'A ray of sunshine'
Iwi climate leader Mike Smith said environmental lawyers were already discussing how to use the landmark ruling in New Zealand.
Smith won the right in the Supreme Court last year to sue seven companies - including Z Energy, Genesis Energy, NZ Steel and Fonterra - for their role in causing climate change.
He said the findings by the international court overnight offered hope in a time of worsening climate damage.
"In all of that darkness this is a ray of sunshine, this is a beacon, it gives us hope that we can leverage these decisions and effect change," he said.
"It strengthens [my case] in the sense that the decision confirmed that states are legally obligated to prevent climate harm and they must not support or subsidise emissions-intensive activities."
"I've been talking to the lawyers from ELI, the Environmental Law Initiative, and they are all putting their minds to what falls out the bottom of this opinion and what opportunities are there now to bring further proceedings against the government."
