New Zealand’s Climate Change Response (Tort Liability) Amendment Act became law on 24 August 2026. The Act is the first national law to comprehensively rule out civil liability for activities that cause harm by contributing to climate change.

In this post, I describe the Act, its political context, and lessons that climate lawyers might learn. I argue that the stagnating political salience of climate change presents significant challenges for climate lawyers, who must consider the viability of their claims in both courts and the political process.

In the New Zealand case, climate advocates faced challenges in maintaining political attention and control over the narrative in the face of powerful industry opposition, a determined government, and arguments in favour of exclusive parliamentary control. Climate lawyers must keep concrete climate harm at the forefront of claims, avoid arguments that might invite alarmist accusations, and carefully communicate the relationship between their particular claims and the broader role of government regulation.

How We Got Here

The Act responds to an ongoing court case: Smith v Fonterra. The plaintiff is Mike Smith, a Māori leader with an interest in coastal property, who sued New Zealand’s largest emitters. Smith alleges that their activities have caused – and would continue to cause – climate-related harm. He argues these emitters are liable under the well-worn torts of public nuisance and negligence, as well as a novel (and more ambitious) common law tort of climate harm.

In 2024, New Zealand’s Supreme Court found that Smith had a tenable cause of action, and that all three claims could proceed to a full trial. That trial would have tested whether Smith could demonstrate adequate harm to his interests, whether the emitters had caused any harm to him, and the role and relevance of tikanga Māori (Māori customary law). The legislation means that we will likely never find out the answers to those questions.

What the Act Does

The Act comprehensively extinguishes or prevents cases like Mike Smith’s. It provides that emitters have no liability for the “emissions-related and climate change effects” of their emissions, further defined as climate change or any harm “directly or indirectly, caused or contributed to by climate change”. There can be no tort liability for such harm, nor any common law or equitable remedies. It is a sweeping piece of legislation intended to shut down private climate litigation in New Zealand.

The law is shameful for many reasons. It applies retrospectively to an ongoing case. It contradicts the government’s own official advice. It emerged from extensive and secretive lobbying by some of the Smith defendants. And it leaves climate victims with no place to go to receive compensation, making it more likely that public authorities and private victims will need to pick up the tab.

Similar laws have already been enacted in some US states and proposed in Germany and the United States Congress. Elsewhere, I have canvassed the many reasons for opposing the Act.  Here, I focus on the challenges of climate lawyering amidst stagnating political salience, and the need for clear strategic communication.

Climate Lawyering Amidst Stagnating Political Salience

As New Zealanders prepare to vote later this year, the political salience of climate change appears to be stagnating. While many voters recognise that the planet is warming, the share of voters who consider it to be a top electoral issue is lower than it was three years ago. Global surveys suggest that among high-income countries, the extent to which voters prioritise climate issues has either stagnated or declined.

The causes of this trend are unclear, but political polarisation, issue fatigue, concerns about the cost or national competitiveness of climate mitigation measures (sometimes a result of government or industry misinformation), all likely have a role to play.

In this context, some see litigation as a shortcut around a hostile political process. A more sophisticated view is that it operates in conversation with politics. Litigation keeps the issue on the public and political agenda. It forces governments and private actors to answer for their inaction and can help catalyse otherwise inert political and policy processes.

At the same time, litigation is vulnerable to the political process in many ways. Governments can obfuscate, slow-walk compliance, or simply ignore decisions. And as in the New Zealand case, governments can simply restrict access to courts. The conversational view of climate litigation cannot work when the political branches do not want a conversation, and have no incentive to do so.

New Zealand is perhaps an extreme example. It has a stunningly fast lawmaking process, with a single house, largely unvarnished parliamentary sovereignty, and no mechanism through which courts can strike down legislation. This allowed New Zealand’s right-leaning government to act extremely quickly in this case. A simple majority in Parliament, no upper house for additional scrutiny, and strict party discipline meant that there was little that opposition parties could do, and few opportunities for wary right-leaning climate advocates to query the bill (either on climate grounds or rule of law grounds). And any legal challenge to the Act’s lawfulness is extremely unlikely to succeed.

But there is a broader lesson to learn – without avenues and constituencies for political accountability, the legal liability of both governments and private actors hangs by a thread.

The Act is not the only recent proposal that places New Zealand’s Supreme Court in its crosshairs. Conservative critics of the Court – including some prominent government voices and affiliated thinktanks – clearly view the Court as straying from its mandate, particularly in cases where Māori law and interests are at issue. While defenders of the Court’s recent jurisprudence maintain it is merely continuing a centuries-old tradition of common law development, many government legislators view the law as putting the Court in its proper place.

Amidst an economic downturn, there is also a growing chorus of voices arguing for New Zealand to prioritise economic interests – including fossil fuel extraction and agriculture – over climate and environmental commitments. Large New Zealand emitters – representing industries with close ties to New Zealand’s right-leaning government – were willing to exploit this confluence of climate intransigence and ideological conservatism by persistently (and secretively) lobbying the government to enact the Bill.

The New Zealand legislation was the product of a perfect storm: a vulnerable court, a government with little commitment to climate action, and a legal opportunity structure allowing Parliament to act quickly. Climate change’s stagnating political salience means there were few political costs for the government in enacting the Bill, and – despite a sophisticated NGO community – few mass constituencies ready to oppose it. If climate litigation is a conversation between governments and litigants, then this was a very one-sided conversation.

Avoiding Traps and Pitfalls

In this context, the viability of climate litigation depends on the political branches as well as the judiciary. Yet the declining salience of climate change means that governments face fewer political costs in thumbing their noses at climate litigation, even where it has been greenlit by a country’s Supreme Court. This places extraordinary demands on climate lawyers, whose claims and words can be easily misconstrued by opponents eager to undermine cases outside the courtroom.

In Smith’s case, opponents of the Bill exploited three vulnerabilities in the claim and its broader framing: its complex relationship to concrete climate harm; its broad set of stated remedies; and the challenging issue of how litigation should relate to public regulation of greenhouse gas emissions.

A Focus on Concrete Climate Harm

Mike Smith’s claim mixes both forward- and backward-looking elements. It is backward-looking in that it identifies Smith’s interests in coastal land threatened by climate change, including property-based, economic, and spiritual interests. It claims that the defendants’ conduct has contributed to climate change, which in turn threatens those interests. But rather than compensatory remedies, the claim focuses on forward-looking ones: declaratory remedies (formally recognising the defendants’ conduct as tortious), and injunctive relief (requiring the defendants to gradually phase out their emissions, or alternatively, to achieve net emissions immediately).

There are sound conceptual reasons for combining forward- and backward-looking elements in the same claim. In the context of public nuisance doctrine, it is conventional to identify an ongoing harm and seek an injunctive remedy to abate that nuisance. But the posture of the case – in both its pleading and the way it was framed – somehow ended up leaving the issue of tangible climate harm out of the public discourse.

The public debate over the Act failed to consider a crucial question: if large emitters are not going to pay for the costs of climate harm, who is? Supporters of the Act provided no answers, instead focusing on the costs of cutting emissions. Instead of seeing the Smith claim as an attempt to share the costs of responding to climate-related harm – including the costs of adaptation and loss and damage – the discussion became one exclusively about mitigation.

To an extent, this was invited by the claim and the remedies requested. An alternative claim might have asked for awards to cover adaptation costs, or a system of compensation for losses already incurred. Such a claim would carry its own, separate risks: defendants and the government may have been even more hostile to tangible financial liability. But at minimum, the accompanying framing of Smith’s claim could have stressed the reality that someone has to pay not just for mitigation, but the inevitable costs of responding to harm caused by climate change. Such harms are not hypothetical: New Zealand is grappling with the increasing frequency of climate-driven extreme weather events.

A clearer case could have been made that companies who have financially benefitted from emissions should bear some of the loss, rather than victims or cash-strapped governments. Centring this dimension of the claim could have better explained it beyond the individual plaintiff and built a more robust constituency willing to defend it in the political arena.

Anticipating Alarmism

In his claim, Smith sought a range of remedies. The first requested was a declaration that defendants had “breached a duty” owed to him. While this may not have required immediate action, it might nevertheless have carried normative significance.

Secondly, Smith sought two different types of injunctions. The first required the defendants to peak emissions by 2025, and progressively reduce to reach net zero by 2050. Alternatively, Smith sought “an injunction (which may be suspended) requiring the defendants to immediately cease emitting net Greenhouse Gas emissions, or contributing to the net emission of Greenhouse Gases through the sale of their products”.

This second injunction was sought as an alternative ground of liability. It was unlikely to be granted. Yet it was immediately seized upon by the defendant companies. Fonterra – a large defendant dairy company – produced modelling which projected “immediate cessation of milk collections”, the loss of 10,500 jobs, and $24.1 billion dollars in revenue. In the absence of any authoritative economic modelling by the government, these claims drew significant attention.

Fonterra’s modelling portrayed Smith as a radical zealot and the Supreme Court’s decision a foolish error. Yet it was expressly based on the assumption that a court would “order an immediate reduction to net zero”, and that an injunction could not be suspended or responded to by Parliament after the fact, or that net zero could not be achieved through offsets. These were unrealistic assumptions.

These arguments could have been anticipated. The second ground of injunctive relief provided defendants with an opening to portray the case in stark terms. Lawyers running similar cases should reflect on how requested grounds of relief will be presented in broader political discourse, and the economic claims that defendants are likely to make.

Articulating a Clear Role for Litigation Alongside Regulation and Parliamentary Sovereignty

Mike Smith’s claim was often presented as an attack on parliamentary sovereignty. The Bill’s explanatory note stated it would “confirm that the role of developing, setting, and implementing regulatory policy in respect of greenhouse gas emissions sits with the Executive and the Legislature”, and that any finding of tort liability would “create a parallel and contradictory regime” alongside New Zealand’s primary climate legislation. Legislators frequently accused courts of “creat[ing] a new climate tort” and of interfering with a “subject too complex, too important, and too profound to be dealt with” by tort law.

The political discourse misrepresented two complex issues. First, it presented Smith’s claim as seeking to create a new tort. The Supreme Court’s refusal to extinguish the claim was portrayed as unwarranted judicial activism. Critics focussed on the novel climate tort, ignoring that the first two claims relied on well-worn torts of public nuisance and negligence.

Secondly, political debate grossly simplified challenging questions about parliamentary sovereignty, policy complexity, and the complementary role of tort law. Defenders of the Act frequently made the point that (1) climate change is a complex problem that cannot be left to individuated private adjudication; and (2) this justified an assertion of parliamentary control that left no role for courts.

This framing masked a problematic tension. New Zealand’s government used the complexity of climate change as a justification for coordinated and comprehensive action by Parliament. Yet the Act was advanced alongside a range of amendments to New Zealand’s principal legal framework, many of which would weaken climate policy ambition. Despite the difficulty in reconciling these positions, both were simultaneously advanced by members of New Zealand’s government.

This discourse left climate advocates scrambling to respond. Few would quibble with the government’s claim that tort law cannot provide a comprehensive standalone answer to climate change. The challenge was to explain how private adjudication might play an important role alongside statutory regulation.

Such arguments are certainly available and significant: private adjudication can be a gap-filler, an accountability mechanism, a means of vindicating individual rights (to complement collective interests), and a source of liability when government enforcement is limited. But these are hard arguments to make in a heated public forum, dominated by soundbites, short news articles, and lobbying memos. A clearer communications strategy could have pushed back against this simplistic view.

A Constructive Spirit

To be clear, the lawyers advancing the claims in Smith v Fonterra achieved a tremendous amount. They received the first greenlight for a corporate climate trial from any common law national Supreme Court. If the legal process had followed its conventional path, they would now be preparing for a landmark trial. This post is not intended as a personal critique, and nor does it seek to underplay the legal rigour, creativity, and tenacity of the lawyers involved. Given the confluence of political factors, it is very likely that the New Zealand Bill would have passed regardless of how the claim was drafted or framed.

Climate litigation is no end-run around politics: it must squarely confront a challenging political reality. Lawyers and advocates must anticipate how legal claims will be responded to outside the courtroom, and what kinds of framing, arguments, and political organising will be necessary to keep the litigation on track. Lawyers elsewhere should take notice of the New Zealand experience.