Two recent appellate decisions reveal a striking divergence in how New Zealand’s courts are approaching climate litigation — and how they might shape its future.
In Lawyers for Climate Action NZ Inc v Climate Change Commission [2025] NZCA 80, the Court of Appeal declined to interfere with the Commission’s emissions budgets. Despite claims of mathematical error and inconsistency with the Paris Agreement’s 1.5°C goal, the Court upheld the advice as lawful, emphasising the Commission’s policy discretion and technical expertise.
But last year, in Smith v Fonterra, the Supreme Court took a dramatically different stance — reviving a climate tort claim that had been struck out by the Court of Appeal. The Court held that Mr Smith’s claim of public nuisance and negligence against major corporate emitters deserved to be tested at trial.
One case deferred to institutional decision-making. The other reopened the door to common law accountability.
That contrast is more than procedural. It reflects two fundamentally different instincts about the judicial role in climate response: when to step back, and when to lean in.
In LCANZI, the Court of Appeal was careful not to cross the line from legality into policy. It declined to second-guess the Commission’s accounting methods, framing them as choices within the bounds of reasoned judgment. The Court was also clear that the legislative purpose of “contributing to the global effort” does not create a legally enforceable bottom line — it sets direction, not destination.
That’s a signal to litigants: climate policy advice, even if imperfect, will rarely be vulnerable to legal attack unless it plainly exceeds statutory limits.
But in Smith, the Supreme Court reached for a broader horizon. In reinstating Mr Smith’s case, the Court acknowledged the complexity of climate harm — but rejected the idea that this complexity makes such cases untriable. Williams and Kós JJ observed that where non-trivial harm is claimed, and the law has not squarely foreclosed the possibility of redress, the courts should favour evidence and argument over early elimination.
The Court in Smith refused to accept that the scale and global nature of climate change necessarily puts it beyond the reach of the common law. Difficult is not the same as off-limits.
The decisions are not necessarily contradictory — but they do mark out different legal terrain. LCANZI was about the scope of judicial review within a structured statutory scheme. Smith was about whether the common law still has a role to play.
Together, they suggest that New Zealand’s courts are calibrating a middle path: restraint when reviewing expert-led policy processes, openness when private rights and harms are at stake and statutory solutions are incomplete.
That may turn out to be a wise — and exportable — model. As climate litigation increases in frequency and complexity, courts around the world are being asked to strike a balance between legal conservatism and moral urgency. They need to hold governments and corporations to account without collapsing into policymaking by another name.
New Zealand’s recent jurisprudence doesn’t answer every question. But it does something useful: it outlines the conditions under which the courts will step back — and when they might step forward.
As Smith heads for trial, and LCANZI considers its next move, the shape of that balance will come into sharper focus. Other jurisdictions will be watching.
