Judge suggests climate consultations ‘fundamentally flawed’, during judicial review
Tuesday, 17 March 2026
Environmental groups have a strong case the Government did not hold valid consultations on some of its climate change policies, the High Court judge presiding over a judicial review has remarked.
On the second day of proceedings, Justice David Boldt made clear he was sympathetic to claims the Government had failed to adhere to “guardrails” designed to protect an Emissions Reduction Plan that was in place up until the end of last year, by not consulting properly on policies it implemented after it won the 2023 election.
Soon after senior Crown counsel Polly Highbee opened the defence for the Government, Justice Boldt said the Government did need to consult if it made changes to Emissions Reduction Plans that were more than minor.
A valid consultation process involved “a willingness to listen to evidence, make decisions based on evidence”, an open mind and a willingness to change proposals, he remarked.
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Lawyers for Climate Action and the Environmental Law Initiative had made a “very strong case” that none of that happened, he said.
“You can't enter the process with an immovable set of steps you are going to take, come what may, and even worse, then go out and ask for consultation on these decisions you’ve already made. That is, on its face anyway, as fundamentally flawed a process as I think I've ever seen,” he told Highbee.
“‘Decide first, consult second’ is literally the wrong way round, so that is a potential problem for you.”
Justice Boldt advised Highbee that this — along with officials’ level of confidence that targets in the current Emissions Reduction Plan would be met — was one of “the challenges I see for you at the moment”.
Lawyers for Climate Action and the Environmental Law Initiative applied for the judicial review in the hope of forcing changes to the current Emissions Reduction Plan (ERP2), which sets out the policies the Government plans to follow to cut emissions until the end of 2030.
They are also seeking what appears to be a largely academic declaration that the Emissions Reduction Plan for the period between 2022 and 2025 (ERP1) was illegal because of the alleged lack of consultation.
One issue in dispute in relation to ERP2 is whether the Government was entitled to rely as heavily as it did on planting trees — rather than cutting emissions at the source — to meet its 2030 targets, given the best available science.
Another is whether it has the level of surety required under the Climate Change Response Act that its policies are sufficient to meet its emission budget for the period.
That budget allows for net emissions of 305 million tonnes of carbon over the five-year period, versus 290 Mt in the four years ending last year.
Heralding one possible win for the Government, Justice Boldt strongly questioned James Every-Palmer KC — representing Lawyers for Climate Action — over the first of those issues, which may hinge on whether the Government’s reliance on forestry amounted to a “potential breach” of the Paris climate change agreement.
“One of the things I'm interested in is why an adjustment to the balance between trees — removals and reductions — necessarily crosses a statutory line in circumstances where the Act … is entirely agnostic between those two ways of reducing the emissions,” he remarked.
Risks to the contribution forestry could make, such as the possibility forests could burn down or die from disease after their contributions were counted, were well known before the Paris Agreement and were not new science, Justice Boldt suggested during questions to Every-Palmer.
Even during the period of ERP2, the Government was anticipating two-thirds of planned reductions in net emissions during the period would be achieved from removing emissions, as opposed to off-setting them, he also said during questions to counsel.
Responding to the remarks, Every-Palmer said the plaintiffs’ argument was “that putting to one side cost-effective reductions in emissions because you’re planting trees” — which he suggested the Government had done, for example by removing the Clean Car Discount cross-subsidy for EVs — was not consistent with climate science.
“You might take a different view to say, well, that's not a science question, I respectfully submit otherwise,” he told Justice Boldt.
The challenge to ERP2 does not necessarily rely on Lawyers for Climate Action winning over Justice Boldt on that point.
It separately claims the Climate Change Response Act required Climate Change Minister Simon Watts to have “a high level of surety” that the Government’s policies would result in the reductions it was setting out to achieve, but that he did not have a rational basis for believing that.
Justice Boldt told Highbee on the second day of the proceedings that he wanted to hear more from Crown lawyers on the level of confidence that its current emissions reduction plan would work.
When he announced consultations on ERP2, Watts stressed the Government “would not accept shutting down productive sectors of the economy to meet emissions targets”.
“We can have affordable and secure clean energy, an efficient competitive agriculture sector, and a booming economy while meeting our climate change commitments,” he said after finalising the plan.
As well as placing a heavy emphasis on forestry, the finalised plan assumed new technologies, including carbon capture, would make a meaningful contribution to reducing emissions.
Carbon capture can involve stripping out carbon dioxide from natural gas and industrial emissions and storing them in disused gas and geothermal wells.
The hearing is due to conclude on Wednesday.