It struck out all three of Smith\u2019s claims, observing that the magnitude of climate change \u201csimply cannot be appropriately or adequately addressed by common law court claims pursued through the courts. It is quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination\u201d.<\/p>\n
That observation was correct and Parliament has already provided exactly such a response. The Emissions Trading Scheme is a comprehensive statutory framework covering the supply of New Zealand Units, surrender obligations and free allocation for activities exposed to international competition. Whether the scheme goes too far or not far enough is a question for political contest, not for the courts.<\/p>\n
The Supreme Court nevertheless unanimously reinstated Smith\u2019s claims. The court acknowledged that the same claim brought against an individual driver or householder would fail. New Zealand produces 0.17% of global emissions. The contribution of any single business is vanishingly small. The court refused to apply that logic to the six defendants.<\/p>\n
Causation is the spine of the law of tort. A defendant cannot be liable in nuisance or negligence unless the plaintiff\u2019s harm is meaningfully traceable to the defendant\u2019s conduct. That requirement is not a technicality. It is what distinguishes the law of tort from a tax. When every human activity contributes to a global phenomenon in microscopic proportion, the doctrinal architecture of tort cannot apply.<\/p>\n
Lawyers for Climate Action suggested the Government\u2019s proposed action undermines the \u201cnormal\u201d relationship between Parliament and the courts. But the normal relationship is that Parliament makes the law and the courts apply it. Parliament is restoring the orthodoxy, not departing from it.<\/p>\n
The objection that Parliament should not legislate against a live case has more substance. Comity between the branches should be respected. But Parliament is not interfering with the application of existing law. It is declining to allow the courts to invent new law in territory Parliament has already occupied. Consequently, comity cuts the other way.<\/p>\n
In my 2024 report for the New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court, I set out a toolkit of options for Parliament to rein in judicial overreach. The first and most direct was targeted legislation reversing aberrant decisions. The proposed climate change amendment is exactly that.<\/p>\n
Those complaining about the Government\u2019s proposal invert the traditional relationship between Parliament and the courts. Section 3 of the Senior Courts Act 2016 records, in Parliament\u2019s own words, that nothing \u201cin this act affects New Zealand\u2019s continuing commitment to the rule of law and the sovereignty of Parliament\u201d.<\/p>\n
Parliament is the highest court in the land; the Supreme Court is its creature. When the sovereign branch declines to ratify a course the courts wish to take, it is not acting against New Zealand\u2019s constitutional order. It is acting as that constitutional order requires.<\/p>\n
None of this weakens New Zealand\u2019s response to climate change. The amendment removes the prospect that climate liability will be developed not by Parliament but by judges, over years of litigation. That matters to every New Zealander, not only to the six defendants.<\/p>\n
Legal certainty is not a business amenity. It is the rule of law\u2019s offer to everyone living under it \u2013 the offer that people can read a statute and plan their lives by it, and that the boundaries of legal duty are set by a Parliament voters elect and can remove.<\/p>\n
Hard cases make bad law. Smith is a paradigm example, and Parliament is moving to correct it.<\/p>\n
That is the system working as it should.<\/p>\n