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Monday
Mar182019

Climate Change Litigation Risk

In the last few days, Local Government NZ released and distributed an opinion prepared by Jack Hodder QC at their request, to all mayors, members and staff, that describes the level of risk being incurred by councils to similar litigation as recently instigated elsewhere in the World,

It is hardly surprising that Mr Hodder's opinion warns of far greater risk than has possibly been appreciated at council level here - a risk that our Council would do well to take into account when deciding whether to follow our Mayor's lead, and her demonstrated scepticism as to its existence, and likely effects.

It may well be required at some point in the future to prove that it has taken all reasonable steps to deal with what is now established science, and despite our Mayor's stated inability to understand it, to implement appropriate counter measures, and in particular, restrictions on developments and protection of existing infrastructure.

What should concern us in particular is the following key conclusion: (Note - I do not have an URL link - only a PDL which I can forward if you require.)

"Current local government litigation risk mostly relates to decisions to limit development (short-term judicial review).  In the future it seems likely to extend to the consequences of allowing development and failing to implement adaptation measures. "

Here is greater detail from the Opinion that is immediately relevant to our situation right here in Thames-Coromandel :

"1.1 Local government is required to plan and act to meet the current and future needs of local, district and regional communities. This in turn requires prudent stewardship of resources and good quality risk management.

1.2 Those objectives have always been challenging. But now the challenges have been compounded by the strengthening of the consensus on the imminent impacts from significant climate change reflecting human activities.

1.3 This short report assumes the correctness of that consensus, and addresses the legal dimension of those compounded risks for local authorities. It seeks to explain that the combination of, first, climate change concerns, and, second, common law systems such as ours, has already created serious litigation risks for governmental agencies, including local government – ie, risks of damages awards.

and

7.5 The strengthening consensus on anthropogenic climate change and its adverse consequences indicates issues which in some cases will materialise only over decades. And there are many interests in play: owners and users of private assets; those undertaking local use changes and developments; insurers; publicly owned assets; central government and taxpayers; local government and ratepayers.

7.6 If major climate litigation, involving large monetary claims, does occur in future years, it will involve an ad hoc inquiry into fault and apportionment of responsibility for any one or more of thousands of exercises of statutory powers, or alleged failures to exercise such powers.

7.7 This will almost inevitably feature the distortions of hindsight:
In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed.
The obvious unpredictability of this adds further complexity to the nature of climate litigation risk.

7.8 In the face of such risks, with impact on most and perhaps all parts of any country, the idea of national standards and solutions seems obvious. In New Zealand, appropriate legislation also seems obvious. We have a long history of public welfare legislation backed by taxpayer funding, and our legislation does trump the common law (including by enacting immunities or limitation defences against litigation risks).

7,9 I will not venture into details of the shape of “appropriate” legislation. But I suggest that some refined and expanded version of the EQC system justifies serious investigation. At a conceptual level, that would involve expansion of the range of “natural hazards” covered by a protective legislative scheme. And the ultimate backstop would be the Crown and its general taxation powers.

7.10 The political and economic ramifications and difficulty of handling the risks which climate litigation would bring – and reflect – may also deserve the label “super wicked”. But it seems to me that doing nothing requires a surprising level of bravery.

JE Hodder QC

7 March 2019"

 

 

 

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Reader Comments (2)

We must have a very brave council eh?

March 18, 2019 | Unregistered CommenterRussell

That’s really interesting. Any chance of adding a link to the opinion if possible? I would love to read the rest of QC Hodders work on this for LGNZ.

March 19, 2019 | Unregistered CommenterJustin

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