New Zealand is charting a cautious path amidst a global surge in climate-change litigation, with recent legal and legislative developments highlighting the country’s complex balancing act between climate accountability and legal liability. Experts convened at a recent Climate Change and Business Conference to examine these issues, underscoring New Zealand’s distinct position within an expanding international legal framework.
Globally, climate litigation cases have surged, with more than 3,000 cases recorded across 55 jurisdictions, according to Shay Schlaepfer, chief operating officer at the Environmental Defence Society (EDS). In New Zealand, litigation has been emerging as a dynamic legal frontier. Notably, the case brought by Lawyers for Climate Action and the Environmental Law Initiative challenges the Government’s second emissions reduction plan (ERP2). Another high-profile case dates back to 2019, when Mike Smith sued seven companies—including Fonterra—alleging their activities constituted a public nuisance contributing to climate change. After initial setbacks in lower courts, the Supreme Court recently allowed Smith’s claim to proceed.
In response to this judicial development, the New Zealand Government swiftly enacted the Climate Change Response (Tort Liability) Amendment Act under urgency last month. This legislation explicitly excludes tort liability for climate change-related harm resulting from greenhouse gas emissions, effectively limiting avenues for similar lawsuits. Associate Professor Vernon Rive of the University of Auckland described the Act as a legislative “torpedo” that has curtailed such claims, although he noted political leaders, including Labour leader Chris Hipkins, have indicated intentions to repeal the Act if elected.
Further complicating the legal environment, the current iteration of the Planning and Natural Environment legislation prohibits officials from considering potential adverse climate effects when assessing proposed activities. Nonetheless, Rive emphasized that businesses could still face litigation under consumer protection statutes related to greenwashing, climate-related disclosure regulations, and director liability.
Former Solicitor-General Una Jagose KC highlighted inherent constitutional constraints on judicial challenges to government climate policy. She pointed to a tension between courts’ reliance on scientific consensus in climate matters and the limits of judicial intervention within a democratic system. Smith is also pursuing a separate case against the Attorney General alleging climate harm; the Supreme Court heard final arguments in August and is awaiting a decision. Jagose noted the Court of Appeal underscored that the efficacy of complex policies such as the Climate Change Act lies primarily with elected officials, rather than the judiciary.
From an international perspective, Laura Clarke, former UK high commissioner to New Zealand and current CEO of ClientEarth, identified three key global trends in climate litigation. First, advancements in “attribution science” strengthen causal links between emissions, climate damage, and responsible parties, potentially reshaping the risk profile of high-emitting firms. Second, there is a growing focus on governmental duties to protect citizens from climate harm. Third, an advisory opinion from the International Court of Justice last year affirmed states’ obligations under international law to regulate emissions and protect against climate risks.
Clarke cautioned that while legislative measures like New Zealand’s Tort Liability Act may shield corporations from claims, they do not eliminate environmental harm or the government’s responsibility to safeguard its people, potentially shifting accountability risk onto the state.
In the business arena, Daniel Street, a partner at law firm DLA Piper, observed that New Zealand companies are currently more concerned about greenwashing risks than tort liability. Despite improved scientific methods linking emissions to damages, liability cases remain rare both domestically and abroad. Street noted that companies are particularly focused on setting and transparently reporting climate targets to avoid legal exposure, viewing greenwashing as a tangible risk that can be managed through clear communication and compliance.
As climate litigation evolves globally, New Zealand stands at a crossroads, balancing legislative protections with mounting pressures for climate accountability from courts, governments, and the business community.