Crown lawyers agree High Court could quash emissions plan if found unlawful

Thursday, 19 March 2026

Lawyers representing the Government say the country could be left without an emissions reduction plan for about a year if the current one is quashed as a result of a legal challenge that has just wrapped up at the High Court in Wellington.

The discussion on potential remedies came towards the end of a three-day hearing on a judicial review held at the request of Lawyers for Climate Action and the Environmental Law Initiative that did not all appear to go smoothly for the Government.

The climate campaigners have accused Climate Change Minister Simon Watts of failing to consult properly on climate policies in the wake of the 2023 election, and subsequently settling on a plan that had only a “coin toss” chance of meeting its emissions goal for the period from the start of this year until the end of 2030.

Justice David Boldt, presiding, suggested when questioning counsel on Tuesday that consultations the Government held after the 2023 election on changes to policies that had previously been reflected within first Emissions Reduction Plan — which covered the period up to the end of last year — were “fundamentally flawed”.

Read more:

• Judge suggests climate consultations ‘fundamentally flawed’, during judicial review

• Climate plan faces High Court challenge over reliance on pine forests

• Government believes it has plan to hit carbon target without sacrificing growth

Those policies included the cancellation of the Clean Car Discount scheme, which cross-subsidised EVs, and the Gidi Fund that provided support for businesses to switch away from fossil fuels.

But the major prize for Lawyers for Climate Action and the Environmental Law Initiative would be if the court were to rule the Government’s current Emissions Reduction Plan (ERP2), which sets out its policies for the period up until the end of 2030, was unlawful.

Justice Boldt questioned senior Crown counsel Polly Higbee at length on the closing day of the hearing over whether the minister had the legally-required surety that the emissions plan would meet its target of reducing net carbon emissions by 305 million tonnes over the period.

He suggested the Government needed to have “a high level of confidence” ERP2 would achieve that target.

But a “reasonable worst-case scenario” would not result in compliance and there was only “marginal headroom” in ERP2 “even if everything tracks exactly as expected”, he remarked.

He noted that if emissions were only 1.3 million tonnes more than planned, that would breach the emissions budget. “I’m struggling to see how that can … give you a high degree of confidence in anything; it sounds like ‘cross your fingers,” he told Higbee.

Higbee said she didn't have an objection to the court phrasing the minister’s obligation as requiring a high degree of confidence its emissions budget would be met, but disagreed it had been a case of cross-your-fingers.

She agreed with Justice Boldt’s assessment that — in broad terms — what Watts had been advised by officials was that the policies would “probably get there; we think it is more likely than not that you'll get there on these policies, but there is a material risk you will not”.

Higbee noted the Government could amend the policies in ERP2 by tightening climate action, should it become apparent it was off track meeting its emissions budget for the period.

Justice Boldt remarked in response that “one of the things that is notable in this area is all these policies — certainly the ones that make a big difference — take time”.

“The reason we’re in this mess, globally, now is because things have happened over a very, very long time, behaviours have become ingrained and it’s taking a very, very long time to turn the ship around,” he said, in an apparent reference to the broader challenge of tackling climate change.

Questioned by Justice Boldt on what remedies the court could order were it to find in favour of the climate action campaigners on ERP2, Higbee agreed it had recourse to the “normal range of remedies” for a judicial review.

She acknowledged those could include making declarations or going as far as quashing the Emissions Reduction Plan.

“Practically, if this court was to say ‘ERP2 is quashed’ that means that New Zealand is without an Emissions Reduction Plan and it starts a process that takes about a year in order to get to another one,” she said.

Lawyers for Climate Action and the Environmental Law Initiative appeared to struggle in an argument over one of their courses of action during the hearing, with Justice Boldt strongly querying their contention ERP2 might have breached the Paris Agreement by putting too much weight on offsetting emissions through forestry.

That would suggest that if the Government was forced to revisit its emissions plan, it might be able to rely as much, or more heavily, on offsetting emissions — rather than reducing them at source — to shore up confidence in its target.

Justice Boldt said during closing arguments that he had a “degree of sympathy” for Watts regarding the matter of the allegedly inadequate consultations, given the minister was not in control of all law changes that impacted emissions reduction plans and not even in Cabinet when some of them were agreed.

It might be a bit harsh to single out Watts in a declaration of illegality in circumstances where “even if he had done everything within his power to comply, he couldn’t comply”, he suggested while questioning Lawyers for Climate Action counsel James Every-Palmer KC.

Every-Palmer agreed with a hypothesis sketched out by Justice Boldt that if the court directed the Government to reconsider ERP2, the original emissions reduction plan could be left in place in the interim, while the new plan was consulted on.

“That’s my quick take on it,” he said.

Justice Boldt reserved the court’s judgment, which he warned might take “some time” because of the complexities of the case.