Published: March 28, 2019
Ratepayers may face hefty legal bills due to a lack of government action on adaptation policy, according to a leading legal opinion by Jack Hodder QC.
LGNZ, the peak body representing all territorial and regional councils in New Zealand, commissioned the opinion to gauge the litigation risk that councils face by choosing to recognise or ignore climate change-related risks in their decision-making, particularly as they relate to planning decisions.
Mr Hodder’s research found an increasing number of climate change-related law suits being brought by individuals and communities frustrated by a lack of progress on climate change internationally, and reasoned that it is only a matter of time before similar actions are taken in New Zealand.
A key risk raised by the report, titled “Climate Change: Who’s Afraid of Creative Judges,” was the absence of national climate change adaptation guidance in New Zealand, effectively leaving it to the courts to decide how to remedy climate change-related harms.
LGNZ President Dave Cull noted that Mr Hodder’s report shone a vital spotlight on the tough position councils are in: On one hand there was no legislative framework to support decisions that reflect climate change risks. On the other hand, ratepayers – through councils – potentially faced significant costs through legal action by not adequately factoring climate risks into their decision-making, that subsequently result in physical or economic harm.
“Without a national climate change adaptation framework, councils are in a grey area when working out how to protect their communities,” said Mr Cull.
“LGNZ engaged Mr Hodder to give councils a better understanding of their climate change litigation risks when operating in this grey area, and what could happen if the courts start setting legal precedents rather than the government.”
“Without the appropriate national standards and legislation, the government is at risk of allowing a situation where the courts will develop legal rules, which would likely result in ever-changing requirements and tensions that would hinder proper planning and implementation of adaption measures.”
Mr Hodder’s opinion highlights that unless central government steps in, increased climate change litigation will consume councils’ - and ultimately ratepayers’ – resources and time, which would be better spent on ensuring the well-being and prosperity of their communities.
“To the Government’s credit it has started to focus on the problem, thanks to the efforts of Climate Change Minister James Shaw, but we need more action in the adaptation policy space, and urgently.”
“A stark truth that we have to accept is that New Zealand is a climate-taker, not a climate-maker. While we have a clear duty to do our part to reduce our carbon emissions, New Zealand accounts for less than 0.2 per cent of global emissions, which means whatever our efforts in the mitigation space we will not move the dial in any meaningful way.”
“What we are certain of is that we will bear the effects of a warming global climate in New Zealand, which we’re seeing already. Unfortunately adaptation policy has not received the same attention as mitigation measures. Mr Hodder’s report makes it clear that these two areas need to receive equal attention from central government at a minimum.”
The legal opinion commissioned by LGNZ complements its recently released report on sea level rise, titled “Vulnerable: The quantum of local government infrastructure exposed to sea level rise,” which found that as much as $14 billion of local government infrastructure is at risk from rising sea levels.
In addition, local government’s world-leading work in climate change adaptation was showcased by the OECD in a recent report, titled: “Responding to Rising Seas”, which examined the Clifton to Tangoio Coastal Hazard Strategy being led by a cross council group in the Hawke’s Bay region.
The paper can be found in the publications section of this website.