Legal Update Enviroment

Climate change litigation is increasingly being used as a tool to hold governments accountable for their climate policies and commitments.  Claimants worldwide are suing their governments in what are known as “government framework” cases to ensure that states deliver on their domestic and international obligations.  This article provides an overview of government framework climate change litigation internationally and in the New Zealand context, with a focus on the recently filed judicial review proceeding against New Zealand's Minister for Climate Change.

Definition and strategic purpose

Instead of challenging an individual project or decision, government framework cases seek to challenge the ambition or implementation of a government's overall climate policy response, in particular:

  1. The alignment (or lack of alignment) of government policy with international agreements (eg, Paris Agreement requirements to limit warming to 1.5°C or 2°C)

  2. The sufficiency of ambition in domestic climate change targets

  3. The effectiveness and coherence of emissions reduction plans

  4. The use or adequacy of public consultation and scientific advice

  5.  Whether policy approaches, such as reliance on forestry offsets or carbon capture technologies, are compatible with domestic or international obligations.

Government framework cases abroad

Since 2015, more than 128 framework cases were filed in courts around the world with varying degrees of success.  Some of the most high-profile successful international cases include: 

  • Urgenda Foundation v State of the Netherlands (2015-2019):1 Urgenda, a Dutch environmental NGO, brought proceedings against the Netherlands Government alleging its climate policy did not meet its obligation to protect citizens from the dangers of climate change.  The Hague District Court, in 2015, found in favour of Urgenda, ordering the Government to adopt more ambitious emissions reductions.  This decision was upheld on appeal in both the Court of Appeal and Supreme Court, marking one of the first instances where a court compelled a state to increase its climate ambition.

  • Friends of the Earth v UK Secretary of State for Business, Energy and Industrial Strategy (2022, 2024):2   The plaintiffs judicially reviewed the UK Government’s Net Zero Strategy, alleging that it did not contain sufficient detail or clear projections to demonstrate how the UK would achieve its binding emissions reductions.  The English High Court agreed in part, finding that, to comply with sections 13 and 14 of the UK Climate Change Act 2008, the Government was required to provide Parliament with adequate detail as to how its policies would enable the carbon budgets to be achieved.  

  • KlimaSeniorinnen v Switzerland (ECtHR, 2024): 3   KlimaSeniorinnen, a Swiss association representing elderly women, successfully sued the Swiss Government for its alleged climate inaction.  The European Court of Human Rights held that Switzerland had violated Article 8 of the European Convention on Human Rights by failing to adopt and implement adequate measures, and a comprehensive regulatory framework, to protect individuals from the serious adverse effects of climate change.  The Court therefore held that national inaction on climate change can amount to a breach of human rights obligations.

Government framework cases in New Zealand

New Zealand’s climate legal framework

New Zealand’s climate change response is governed primarily by the Climate Change Response Act 2002 (CCRA), that (among other things):

  1. Sets a 2050 target for net zero emissions

  2. Establishes a system of five-year “emissions budgets” as interim milestones towards the 2050 target

  3. Requires the Minister for Climate Change to prepare Emissions Reduction Plans (ERPs) for each budget period, which must set out policies and strategies to meet those budgets

  4. Provides for ongoing monitoring by the independent Climate Change Commission (Commission)

ERPs are government policy documents required under section 5ZG of the CCRA and must be set “with a view to” meeting the 2050 target and contributing to the global effort under the Paris Agreement to limit temperature rise to 1.5°C above pre-industrial levels.

ERPs must include sector-specific policies, multi-sector strategies, and measures to mitigate the social, cultural and economic impacts of emissions reductions.  The Minister must consider the advice received from the Commission, consult with the public, iwi/Māori, and affected sectors when preparing or amending ERPs (other than minor or technical changes).

LCANZI v Minister for Climate Change

In June 2025, Lawyers for Climate Action NZ Inc (LCANZI) and the Environmental Law Initiative (ELI) filed judicial review proceedings against the Minister for Climate Change regarding both the first and second Emissions Reduction Plans (ERP1 and ERP2).  The claim challenges the Government's rapid review and rollback of numerous climate policies and reliance on forestry offsets rather than direct emissions reductions (being the first claim of its kind to challenge such a strategy).

LCANZI and ELI bring two causes of action:

The first cause of action: errors relating to ERP1 (2022–2025), alleges (and seeks declarations from the Court) that the Minister:

  1. Erred in law by failing to keep ERP1 current, as required by the CCRA, after discontinuing or delaying numerous policies 

  2. Did not follow the statutory process for amending ERP1, particularly in relation to public consultation

  3. Produced an amended ERP1 that was incoherent and internally inconsistent, with uncertainty as to which policies remain in effect, and therefore unlawful. 

The second cause of action: errors relating to  ERP2 (2026–2030), challenges the lawfulness and adequacy of ERP2 on several grounds, including:

  1. The ERP's reliance on forestry offsetting:  the applicants contend ERP2 is legally and scientifically flawed by proceeding on the “offset equivalence assumption” - that emissions removed through forestry are equivalent to reductions of gross emissions at source - and argue forestry carbon removals:

    1. may not be permanent, carry substantial risks due to fire and extreme weather, require perpetual replanting and can be reversed if felled forests are not replanted 

    2. are difficult to accurately quantify (unlike emissions at source)

    3. use large amounts of land that could otherwise be used for other purposes

    4. should not be prioritised in ERPs over gross emissions reduction, in accordance with the advice of the Commission and Ministry for the Environment officials, as (it is alleged) overreliance may contravene New Zealand’s obligations under the Paris Agreement.

  2. Risk management and adaptive management: the applicants allege that ERP2:

  1. is not sufficiently detailed or robust to give the public confidence that the emissions budget will be achieved, especially given the significant uncertainties and risks identified in the Government’s own modelling
  2. relies heavily on “adaptive management”, which involves monitoring progress and responding as needed if emissions reductions fall short, without specific contingent policies or strategies in the event that projected reductions are not achieved, and does not provide an adequate buffer to account for risks and unforeseen events.

 

 

 

 

 

 

 

In respect of EPR2, the applicants seek (among other things):

  1. A declaration that the Minister’s decision to base EPR2 on the “offset equivalence assumption” was unlawful, as it involved an error of fact, and because the Minister failed to consider that reliance on this assumption could result in an ERP that is inconsistent with New Zealand’s international obligations

  2. An order quashing EPR2.

Conclusion

Government framework litigation represents a growing and evolving area of climate law.  These cases seek to clarify the scope of governmental obligations and hold states to account for the efficacy and ambition of their climate responses.  Looking ahead, the outcome of the LCANZI case will be closely watched both in New Zealand and abroad.  It will test the robustness of New Zealand’s climate legal framework and may set a precedent for how governments can - and must - design credible, science-based climate policies.  As the climate crisis intensifies, the courts are likely to play an increasingly significant role in ensuring that governments do not just set ambitious targets, but also take appropriate steps needed to achieve them. 

 Co-authored by Alastair Cameron (solicitor).

1 Urgenda Foundation v State of the Netherlands [2015] HAZA C/09/00456689 (24 June 2015) (Hague District Court, Netherlands).

2 R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841.

3 Verein KlimaSeniorinnen Schweiz and Others v Switzerland (European Court of Human Rights, Grand Chamber, Application No 53600/20, 9 April 2024).