A guest post by Sean Rush:
If you’ve read the headlines about Climate Clinic Aotearoa v Minister of Energy, you might believe a group of law students marched into the Supreme Court and reshaped New Zealand’s climate policy. The popular narrative suggests a solid victory to the students, with reports that the students created new law, that climate is now a mandatory consideration when offering petroleum permits. But the reality is the decision lands as an own goal against climate activism.
As an adviser to one of the oil companies involved during the permit award phase (the “block offer”), I can confirm the students lost. Completely. The case was dismissed at every stage from the High Court through to the highest court in the land, a result that would typically attract a substantial costs award against the plaintiffs for wasting valuable court time and Crown legal resources. Yet, in this instance, the Crown chose not to seek costs, despite the financial burden on taxpayers and the economic consequences for the energy sector. The claim was that the Minister of Energy was required to consider climate in the permit award process. It is a wholly irrelevant question because the Minister did consider climate. She had received extensive briefings on climate issues, and this was acknowledged by the Supreme Court. The Court went further, noting that while climate change is a mandatory consideration at the block offer stage, it is not the sole or controlling factor in the decision-making process. In some ways this is an own goal against the students and climate activism. The Supreme Court has determined that other, more pressing issues, should be the Minister’s primary focus. Ministers Bishop and Jones and businesses involved in fast-track projects will welcome this determination from the Supreme Court. What the law requires is a balanced approach, weighing climate impacts with other controlling imperatives, such as energy security and economic prosperity.
This case was less about the Minister’s decision and more about a manufactured plaintiff giving eager lawyers a test case. A group of law students formed an incorporated society for the sole purpose of litigation, led by James Shaw’s brother-in-law, Dr James Every-Palmer KC. He admitted to the Court of Appeal he was providing legal services “pro bono” i.e. for free. With the Crown declining to seek costs, the exercise became a risk-free political punt to undermine the former Government’s clear intent: to award onshore exploration permits despite climate change.
In the High Court, Dr Every-Palmer KC argued that climate change is an “existential threat” that must be inferred into the statutory scheme. This statement went unchallenged, even though the plaintiffs’ own expert witness acknowledged that climate change is not an existential threat to humanity—a point echoed by leading scientists but omitted from court submissions.
While some have framed the case as symbolic, its consequences are tangible. Two small oil and gas companies seeking to supply gas to Taranaki were caught in the crossfire. One planned to complete drilling by 2024. Had they been allowed to proceed, New Zealand could already be benefiting from additional domestic gas supply. Instead, the economic fallout from our gas shortage is visible in lost jobs, shuttered businesses, and rising electricity prices.
Despite the clear judicial rejection of the students’ arguments, the decision has largely been portrayed as a victory for climate activism. This is misleading. The Court’s decision was a rejection of a clever legal argument that never stacked up on the facts. Because the Crown approached the litigation with kid gloves—no costs, no challenge to the existential-threat narrative, no scrutiny of the manufactured plaintiff—the students walk away ready to fight Government policy in the courts another day.
The risk-free precedent this strategy sets is not good news for any “fast-track” project or for the lawful activities that underpin New Zealand’s energy security and economic prosperity. This was not a victory. It was a loss—total, deserved, and costly, but not to the losers, but to the winners who have to pick up the pieces and try and make a go of it, five years later. Unless the Crown stops indulging this style of litigation, we will see more of it, with the real-world consequence that the policy arising from our democratically elected Government, may be stymied by a minority who win even when they lose.
Sean Rush is a petroleum lawyer and former Wellington City Councillor. He holds a Masters in Petroleum Law and Policy and a Masters in Climate Change Science and Policy. He is an expert reviewer for the Intergovernmental Panel on Climate Change.
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