I’m writing to tell you about an important bill to stop the coming wave of climate lawfare in its tracks by telling the courts to get back in their lane.
Lately, we’ve been giving National a hard time on policies like the Paris Agreement and Freshwater, but it’s important to note that it isn’t as if everything National does is bad or as if every National MP is cut from the same cloth.
A good example of an MP doing something about the relentless assault on food production by the usual anti-farming suspects is Southland MP Joseph Mooney, who has a bill in the members’ ballot to prohibit civil lawsuits about greenhouse gas emissions and climate change consequences.
As the bill’s preamble says, climate change is a global issue, managed by international agreements and government policy. Legal claims between individuals and companies within one country just don’t make sense.
The bill would prevent bringing any civil cases about climate change harm and expressly recognise that no one has a legal duty to cease contributing to climate change. That way, the courts have to stay out of creating new non-democratic climate change policy and we can keep the debate about climate change policy in the political, democratic space it belongs.
This isn’t an abstract issue, either. Right now, an activist is suing Fonterra, Genesis Energy, Dairy Holdings and others, claiming damage caused by climate change and alleging that those emitters are to blame. (This is the Smith v Fonterra case, for those who’ve been keeping track).
Now, this is plainly ridiculous on the face of it. Even for those who are fully on board with the Paris view on climate change, it’s a global issue where Fonterra and the others are contributing a tiny fraction of the global emissions that may be causing whatever adverse outcomes the activists are claiming, while it’s entirely unclear exactly how much climate change may or may not contribute to any given event.
How can a court decide whether and how much a company is at fault for some bad weather event? What is the court then supposed to do about it – set up their own emissions pricing scheme? Is it just the bad luck of Fonterra to be in the same jurisdiction as the individual bringing the suit, while another new coal power plant in China has no case to answer?
Well, those were the sorts of questions the Court of Appeal thought couldn’t be answered in court and correctly judged that these are matters for Parliament.
That could have been the end of it, but the case then went to the Supreme Court, and they decided to open the whole case back up and send it back to the High Court to go around again, ruling that all those pesky questions are, in fact, up to the courts to answer.
Activist courts are a problem in all sorts of fields but, as we covered earlier, this is among the policy areas where it makes the least sense for courts to create new rules and regulations. They’re even less able than the banks to evaluate emissions metrics and understand the agricultural emissions cycle.
Even if a company is complying with every rule and regulation set by Parliament and the Government, they could still be liable for civil proceedings like this one. All because the courts are opening up a whole brand new kind of legal precedent.
A precedent like this creates immense uncertainty, where anyone could sue anyone else for some damage they can allege was caused by climate change. As the Court of Appeal noted, everyone is an emitter to some extent, so no one is safe.
Even though activists will target those with the bank balances to pay out, like these companies, in the end, we will all pay through the higher costs they will have to pass on.
Hitting Fonterra means most dairy farmers are worse off in the first instance, but everyone will pay more for milk at the supermarket. The same goes for all the other companies in this case, but also any other company that might be sued next.
That’s why Parliament needs to step in and tell the courts to get back in their lane. Joseph Mooney’s bill would explicitly overturn the Supreme Court decision and prevent that uncertainty by taking this new idea of climate change damages off the table for the courts to meddle with.
We’re backing Joseph’s bill and calling for all MPs to support it to skip the member’s bill ballot. Whether it realises or not, Parliament is in a race with the courts to head off the uncertainty and legal wrangling the Supreme Court is saddling all of us with. Even Labour should want Parliament to be setting climate policy, rather than two sets of competing rules sowing confusion and creating a chilling effect on investment and employment decisions.
Take a moment to contact your local MP and tell them to back Joseph Mooney’s bill. We don’t have time to gamble on the member’s ballot with what’s at stake.
If you needed any more reasons to support the bill, Greenpeace said they were “shocked” and condemned the bill, while the Environmental Law Initiative called it “deeply concerning” and noted “the Bill wants to leave it to governments, to the market and to international cooperation to solve the climate crisis.”
To which we say: yes, that’s the idea. Democracy, self-government, and public debate. Activist lawyers could be out of a job, but we just might keep some people who actually produce something in theirs.
You can read the bill on the Parliament website here: Climate Change (Restriction on Civil Proceedings) Bill
Thank you again for your support.
Kind regards,
Bryce, Laurie, and the Team at Groundswell NZ
