On March 6, 2020 a New Zealand court rejected two claims brought against major green house gas emitters, alleging that the defendants' actions constituted public nuisance and negligence.
Plaintiff Michael John Smith asserts that he is of Ngāpuhi and Ngāti Kahu descent and that he is the climate change spokesman for the Iwi Chairs’ Forum. He claims customary interests in lands and other resources situated in or around Mahinepua in Northland, and asserts that various sites of customary, cultural, historical, nutritional and spiritual significance to him are close to the coast, on low-lying land or are in the sea. Smith brought suit against several defendants that operate facilities that emit greenhouse gas emissions, including dairy farms, a power station, and an oil refinery. Smith alleges that the defendants' contributions to climate change constitute a public nuisance, negligence, and breach of a duty cognizable at law to cease contributing to climate change.
The High Court of New Zealand Auckland Registry dismissed the first two claims, but not the third. The court concluded that Smith could not demonstrate public nuisance because the damage claimed was neither particular to him, nor the direct consequence of the defendants' actions. The court further reasoned that showing a public nuisance was difficult given that the defendants are complying with all relevant statutory and regulatory requirements. The court determined that Smith's negligence claim must fail because he has not shown that the defendants owed him a duty of care, concluding that the damage claimed was not reasonably foreseeable or proximately caused by their actions.
The court declined to strike the third cause of action, which alleged that the defendants have a duty to cease contributing to climate change. The court found that there were "significant hurdles" for Smith in persuading the court that this new duty should be recognized, but determined that the relevant issues should be explored at a trial. The court explained that "[i]t may, for example, be that the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions." The court warned, however, that it would likely be unable to provide the injunctive relief that Smith seeks, which would require a "bespoke emission reduction scheme."
Following the decision of the lower court, Mr Smith appealed the decisions to strike out the first two causes of action while the defendants cross appealed the court's decision that the third cause of action should proceed to trial. On October 21st, 2021, the Court of Appeal dismissed the appeal submitted by Mr Smith and upheld the cross appeal. The court held that tort law was not the appropriate vehicle for dealing with climate change, noting that "every person in New Zealand — indeed, in the world — is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm." As such the court argued that it's intervention in the issue and a determination that the conduct of the respondent companies was unlawful would introduce an "ad hoc" and "arbitrary regime", which would lack democratic legitimacy. The Court of Appeal did, however, note that the courts have some role in climate action: "in holding the government to account".