{"id":29600,"date":"2026-08-27T07:00:33","date_gmt":"2026-08-27T12:00:33","guid":{"rendered":"https:\/\/blogs.law.columbia.edu\/climatechange\/?p=29600"},"modified":"2026-08-26T14:28:37","modified_gmt":"2026-08-26T19:28:37","slug":"new-zealand-legislates-away-climate-tort-part-i-smith-v-fonterra-and-the-global-backlash-against-climate-litigation","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2026\/08\/27\/new-zealand-legislates-away-climate-tort-part-i-smith-v-fonterra-and-the-global-backlash-against-climate-litigation\/","title":{"rendered":"New Zealand Legislates Away Climate Tort, Part I: Smith v Fonterra and the Global Backlash Against Climate Litigation"},"content":{"rendered":"

This is the second of three consecutive posts on corporate climate accountability. <\/span><\/i>Yesterday\u2019s post<\/span><\/i><\/a> examined the <\/span><\/i>Paris Judicial Court\u2019s June 2026 ruling in <\/span><\/i>Notre Affaire \u00e0 Tous et al.\u00a0v. TotalEnergies SE<\/span><\/i><\/a>.<\/span>\u00a0<\/span><\/i><\/p>\n

On August 18, 2026, New Zealand\u2019s Parliament enacted the <\/span>Climate Change Response (Tort Liability) Amendment Act 2026<\/span><\/a> (the Liability Act), passing 67 votes to 53, entirely along coalition lines. The Liability Act bars any court from finding any person, including the Crown, liable in tort for climate-change effects arising from greenhouse gas emissions in current and future proceedings. Its immediate target is <\/span>Smith v Fonterra<\/span><\/i><\/a>, a corporate accountability and tort-based common law case, which had been scheduled for trial in April 2027. That trial will no longer proceed. This post situates the Liability Act within the global trajectory of corporate climate tort litigation and discusses its global significance.<\/span><\/p>\n

Background: <\/b>Smith v Fonterra<\/i><\/b> and a Decade of Climate Tort Development<\/b><\/h2>\n

Smith v Fonterra Co-operative Group Ltd<\/span><\/i><\/a> was filed in 2019 by Mike Smith, a Ng\u0101puhi and Ng\u0101ti Kahu climate leader and spokesperson for the Iwi Chairs\u2019 Forum, against seven major corporate emitters collectively responsible for approximately one-third of New Zealand\u2019s greenhouse gas emissions: Fonterra, Dairy Holdings, Genesis Energy, Z Energy, New Zealand Steel, BT Mining, and Channel Infrastructure. Smith subsequently <\/span>discontinued<\/span><\/a> the proceedings against Channel Infrastructure in May 2024, leaving six defendants. Smith sought declaratory and injunctive relief under three causes of action: (i) public nuisance, (ii) negligence, and (iii) a novel climate system damage tort. He did not seek any monetary compensation, but rather injunctions requiring the defendants to peak their emissions by 2025, make specific reductions by 2030 and 2040 through linear annual reductions, and reach net-zero emissions by 2050. Alternatively, he sought a potentially suspended injunction requiring them to cease emitting, or contributing to, net emissions immediately.<\/span><\/p>\n

In 2020, a judge in the High Court of New Zealand partially <\/span>struck out<\/span><\/a> the claims in public nuisance and negligence, but declined to strike out the third claim. In 2021, the Court of Appeal <\/span>struck out<\/span><\/a> all three claims, characterizing climate change as a \u201cpolycentric issue:\u201d determining appropriate emissions reductions, in its view, required courts to weigh social, economic, and distributional consequences affecting stakeholders who could not all participate in the litigation. It concluded that a \u201csophisticated regulatory response at a national level,\u201d supported by international coordination, was the appropriate mechanism. The Supreme Court unanimously reversed the Court of Appeal\u2019s ruling in <\/span>February 2024<\/span><\/a>. It <\/span>held<\/span><\/a> that (i) all three claims were reasonably arguable, (ii) causation was not fatal at the strike-out stage, and (iii) drawing on sewage and waterway nuisance precedents, that individual contributors to collective harm may be proportionally liable regardless of the fact that a problem is global in scale. A 15-week trial had been <\/span>set<\/span><\/a> for April 2027.<\/span><\/p>\n

The Liability Act: What It Does and How It Got Here<\/b><\/h2>\n

Directly overriding the legal position on which the Supreme Court had allowed Smith\u2019s claim to proceed, the <\/span>Liability Act<\/span><\/a> establishes an absolute statutory bar to tort claims for harms resulting from greenhouse gas emissions. Courts and tribunals have no discretion: they cannot find liability in tort for emissions-related climate effects regardless of the strength of the evidence, the novelty of the legal theory, or the merits of the particular claim. The bar expressly extends to activities that \u201ccause or contribute to\u201d emissions, including emissions from related activities, where those emissions cause or contribute to climate change effects. Its scope is therefore defined by the causal basis of the claim rather than the remedy sought: it would appear to leave ordinary claims concerning failure to adapt outside the bar, while potentially encompassing claims seeking compensation for adaptation costs where liability is premised on the defendant\u2019s contribution to greenhouse gas emissions. That distinction is significant comparatively: many <\/span>US cases classified as adaptation litigation<\/span><\/a> seek adaptation costs from fossil-fuel companies on the basis of conduct alleged to have contributed to the emissions causing those costs.\u00a0<\/span><\/p>\n

The Liability Act is the culmination of a documented <\/span>lobbying campaign<\/span><\/a>. <\/span>In 2024<\/span><\/a>, the <\/span>Smith<\/span><\/i> defendants met with government ministers and delivered a briefing note warning that the uncertainty generated by the case \u201cwas creating material sovereign risk and significant uncertainty for the international investment community.\u201d They attached a proposed amendment to the Climate Change Response Act (CCRA). The New Zealand Initiative, a think tank whose membership includes some of the defendants and which was confidentially consulted by the Ministry of Justice in August 2025 on options for responding to the litigation, made a <\/span>written submission<\/span><\/a> to the Justice Committee (whose job is to scrutinize legislation within the justice portfolio before it goes to further readings) in support of the bill.<\/span><\/p>\n

The pipeline from the defendants\u2019 proposal to the legislative outcome was short and direct. <\/span>Ministry of Justice officials<\/span><\/a> initially recommended, in June 2025, against intervening while the litigation was active. But things quickly changed after the lobbying campaign. The bill was announced on May 12, introduced on June 28, went through the <\/span>Justice Committee<\/span><\/a>, and passed its third reading on August 18. It received Royal Assent on August 23 and entered into force the following day. Justice Minister Paul Goldsmith framed this as restoring \u201ccertainty of law\u201d and confirmed that the Emissions Trading Scheme (ETS) and existing CCRA obligations remain intact. But the government does not assert that the ETS or CCRA provide an equivalent remedy to tort. Rather, its argument is that emissions policy involves economy-wide social, economic and distributional choices that, in its view, should be made through a nationally coordinated statutory regime rather than through duties developed defendant by defendant in private litigation. What the government does not dispute is that neither the ETS nor the CCRA provides any compensation mechanism for individuals harmed by climate change. The Liability Act does not redirect claimants to an alternative forum. It eliminates the civil avenue Smith<\/em> successfully established was arguable at common law, without replacing it with a mechanism for redress.<\/span><\/p>\n

Corporate Climate Tort in Global Context: The Remedy Spectrum<\/b><\/h2>\n

New Zealand\u2019s decision to foreclose climate tort litigation (not only against corporations, since it also shields the Crown) matters particularly because of where the global litigation stands. Courts across several jurisdictions have, over the past decade, begun to develop a recognizable set of principles for handling these cases, and that convergence was producing a coherent legal framework just as the New Zealand government foreclosed that development.<\/span><\/p>\n

Three cases illustrate what has been emerging.<\/span><\/p>\n

In <\/span>Lliuya v RWE<\/span><\/i><\/a>, the Higher Regional Court of Hamm conducted a decade-long evidentiary process, including an on-site visit to Peru, before <\/span>dismissing<\/span><\/a> Peruvian farmer Sa\u00fal Luciano Lliuya\u2019s claim in May 2025 on the facts, finding that the approximate 1% probability of a flood affecting his property within 30 years was insufficient to establish the concrete and imminent threat of interference with his property required under \u00a7 1004(1) of the German Civil Code. The dismissal was a defeat on the facts, but not on the law. The court confirmed that major emitters can in principle be held liable for their proportionate share of climate adaptation costs \u2014 Lliuya had sought approximately \u20ac17,000, representing RWE\u2019s 0.47% share of global historic industrial emissions \u2014 and that this liability is not defeated by the argument that climate change is too complex or too global for individual attribution.<\/span><\/p>\n

In <\/span>Milieudefensie et al.\u00a0v. Royal Dutch Shell<\/span><\/i><\/a>, the Hague Court of Appeal <\/span>ruled<\/span><\/a> in November 2024 that Shell bears a duty of care to curb greenhouse gas emissions under Dutch tort law, informed by the horizontal effect of international human rights obligations \u2014 and that regulatory compliance provides no complete defense. The court declined to impose the requested 45% reduction order in Shell\u2019s emissions, finding insufficient grounds to specify that percentage for Shell and questioning the effectiveness of a Scope 3 reduction order. The case is now before the Dutch Supreme Court, which heard the parties in August 2026. The Court of Appeals thus confiemd that regulatory compliance does not, by itself, preclude a private law duty of care concerning emissions.\u00a0<\/span><\/p>\n

In the United States, the Supreme Court granted certiorari in<\/span> Suncor Energy Inc. v. County Commissioners of Boulder County<\/span><\/i><\/a> in February 2026, <\/span>agreeing<\/span><\/a> to address whether federal law preempts state law climate claims. More than thirty pending cases, brought by municipalities, states, and tribes, may turn on the outcome. The mechanism differs from the tack taken in New Zealand. In the United States, corporate defendants, and, increasingly, the federal government have sought to foreclose state climate tort claims through federal preemption and related constitutional doctrines, with courts deciding whether those arguments succeed. In New Zealand, Parliament bypassed that judicial determination by legislating away the cause of action.\u00a0<\/span><\/p>\n

What the four cases share is a recurring argument \u2014 that courts are not the right venue; climate is a matter for national regulators \u2014 deployed through different legal tools. As noted below, a few US states have also <\/span>passed<\/span><\/a> laws restricting climate suits, and Congress has <\/span>introduced<\/span><\/a> federal legislation. The Trump administration has pursued a parallel executive strategy: a <\/span>2025 executive order<\/span><\/a> directed the Attorney General to identify and take action against state climate laws and causes of action, and the Justice Department has since brought federal lawsuits seeking to block state climate-liability litigation: preemptive actions against <\/span>Hawaii<\/span><\/a> and <\/span>Michigan<\/span><\/a> in 2025, both subsequently dismissed, and a 2026 action seeking to enjoin <\/span>Minnesota<\/span><\/a> from continuing its pending climate case against fossil-fuel defendants.\u00a0<\/span><\/p>\n

The experience from Europe shows a recognizable pattern: duty confirmed in principle; judicial resistance to supervisory specificity; declaratory and proportionate contribution remedies as the most tractable form of relief. The Paris Judicial Court\u2019s June 2026 TotalEnergies <\/span>ruling<\/span><\/a>, discussed in <\/span>yesterday\u2019s post<\/span><\/a>, illustrates the same calibration: Scope 3 emissions recognized within the statutory due diligence framework, but the company left to determine its own response before courts assess whether the proposed measures are adequate. <\/span>Smith<\/span><\/i> was structured for exactly that kind of restrained judicial engagement. It sought declarations and a phased trajectory towards net zero, not a specific percentage reduction in emissions or money damages. Unlike <\/span>Lliuya<\/span><\/i> and <\/span>Shell<\/span><\/i>, which had already reached the merits, <\/span>Smith<\/span><\/i> had not yet done so. But New Zealand\u2019s highest court had unanimously held that its claims were reasonably arguable and permitted them to proceed, and a 15-week merits trial had been scheduled. The government intervened at precisely that point: it foreclosed the legal development, not the verdict.<\/span><\/p>\n

A Global Pattern?<\/b><\/h2>\n

New Zealand is not acting alone. The Liability Act is part of an emerging pattern in which governments and courts in a few jurisdictions have moved to limit corporate climate tort liability \u2014 through legislative, judicial, or doctrinal tools \u2014 as the litigation field has matured.<\/span><\/p>\n

On May 12, 2026, the same day as the NZ government\u2019s announcement of the bill, the German state of Bavaria submitted a <\/span>legislative proposal<\/span><\/a> to the German Federal Council for a “law to protect German companies from international climate lawsuits” (BR-Drucksache 285\/26).\u00a0 In particular, it proposes inserting a new \u00a7 14(2) into the Federal Immission Control Act (BImSchG) that would bar private-law claims, such as injunctive relief, damages, reimbursement of expenses, and compensation, for climate-related impacts of greenhouse gas emissions wherever the underlying emissions were publicly authorized at the time they occurred (for instance, through a valid facility permit or emissions certificate). The Bavarian State Government argues that climate policy is a coordinated national and international task that leaves no room for private liability against individual emitters acting lawfully. Without providing empirical evidence, the government warns that such climate lawsuits could threaten to overwhelm German civil courts and undermine Germany as a business location. That proposal would enshrine in statute precisely the regulatory compliance defense that the Hague Court of Appeal rejected in <\/span>Milieudefensie v. Shell<\/span><\/i>: the holding that an environmental permit does not provide a complete defense against a duty of care claim. It has not yet been enacted.<\/span><\/p>\n

In the United States, as noted above, <\/span>Republican legislators <\/span><\/a>have introduced federal legislation to shield fossil fuel companies from climate liability, and several US states \u2014 including <\/span>Tennessee<\/span><\/a>, <\/span>Utah<\/span><\/a>, <\/span>Iowa<\/span><\/a>, <\/span>Oklahoma<\/span><\/a>, and <\/span>Louisiana<\/span><\/a> \u2014 have enacted or introduced similar measures at the state level. The Trump administration filed an <\/span>amicus brief<\/span><\/a> in <\/span>Suncor v. Boulder<\/span><\/i><\/a> in support of the companies\u2019 argument that state climate tort claims are preempted by federal law, which would operationalize the same industry position represented by the federal legislation.\u00a0<\/span><\/p>\n

The tools differ \u2014 legislative changes in New Zealand and Germany, federal preemption and executive litigation in the United States, and proposed legislation in both Germany and the United States \u2014 but the underlying argument is consistent across all of them: climate change is a matter for regulators and legislators, not courts. What makes the Liability Act distinctive is not its argument but its mechanism. The Trump administration\u2019s suit against Minnesota comes closest to that model, because it asks a federal court to halt an already-pending state climate case. But the distinction remains significant: the administration must persuade a court that the litigation cannot proceed. New Zealand\u2019s Parliament eliminates the underlying cause of action itself.<\/span><\/p>\n

Conclusion<\/b><\/h2>\n

New Zealand is therefore not alone in seeking to constrain corporate climate litigation. Legislative proposals in Germany and the United States, state-level restrictions on climate suits, and the Trump administration’s efforts to halt state climate litigation all point to an emerging counter-movement against the use of tort law to address climate harm. But New Zealand’s intervention remains distinctive. Rather than asking courts to determine whether climate claims are preempted, non-justiciable, or otherwise legally defective, Parliament changed the underlying law after the country’s highest court had held that Smith’s claims were reasonably arguable and permitted them to proceed to trial.<\/span><\/p>\n

That distinction matters beyond questions of institutional competence and the development of tort law. It also raises a further question: whether extinguishing an existing avenue for climate accountability\u2014and doing so as part of a broader retreat from domestic climate regulation\u2014has implications under international law. <\/span><\/p>\n

Part II considers that question in light of the ICJ and IACtHR’s recent climate advisory opinions and international human rights law.<\/span><\/i><\/p>\n

<\/div>","protected":false},"excerpt":{"rendered":"

This is the second of three consecutive posts on corporate climate accountability. Yesterday\u2019s post examined the Paris Judicial Court\u2019s June 2026 ruling in Notre Affaire \u00e0 Tous et al.\u00a0v. TotalEnergies SE.\u00a0 On August 18, 2026, New Zealand\u2019s Parliament enacted the Climate Change Response (Tort Liability) Amendment Act 2026 (the Liability Act), passing 67 votes to […]<\/p>\n","protected":false},"author":2336,"featured_media":28501,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"footnotes":""},"categories":[5673,69207],"tags":[65696,69243],"class_list":{"0":"post-29600","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-litigation","8":"category-cross-cutting-issues","9":"tag-climate-litigation","10":"tag-corporate-liability","11":"czr-hentry"},"yoast_head":"\nNew Zealand Legislates Away Climate Tort, Part I: Smith v Fonterra and the Global Backlash Against Climate Litigation - Climate Law Blog<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/blogs.law.columbia.edu\/climatechange\/2026\/08\/27\/new-zealand-legislates-away-climate-tort-part-i-smith-v-fonterra-and-the-global-backlash-against-climate-litigation\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"New Zealand Legislates Away Climate Tort, Part I: Smith v Fonterra and the Global Backlash Against Climate Litigation - Climate Law Blog\" \/>\n<meta property=\"og:description\" content=\"This is the second of three consecutive posts on corporate climate accountability. Yesterday\u2019s post examined the Paris Judicial Court\u2019s June 2026 ruling in Notre Affaire \u00e0 Tous et al.\u00a0v. 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