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New Zealand: Court Rejects Challenge to Climate Change Research Findings

(Sept. 7, 2012) On September 7, 2012, the New Zealand High Court (the third highest court in New Zealand’s court hierarchy) dismissed a challenge to the findings of reports that stated that average temperatures in the country had increased by nearly one degree Centigrade in a hundred years. (New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Limited, [2012] NZHC 2297.)

The New Zealand Climate Science Education Trust, a private entity associated with the New Zealand Climate Science Coalition (About Us & Contact, The New Zealand Climate Science Coalition (last visited Sept. 7, 2012)) that rejects the argument that human activity has caused global warming, sought judicial review of decisions made by the National Institute of Water and Atmospheric Research (NIWA) relating to the publication of temperature data. In particular, the Trust argued that NIWA had not applied recognized scientific opinion and that the data in its reports contained obvious deficiencies; that it had therefore breached its statutory duties, including its obligation to pursue excellence; and that it had failed to consider mandatory considerations, relied on a mistake of fact, and acted unreasonably in releasing the data. (New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Limited, ¶¶ 11 & 19.)

NIWA is a Crown Research Institute established pursuant to the Crown Research Institutes Act 1992. (New Zealand Legislation website.) Its mission is to “conduct leading environmental science to enable the sustainable management of natural resources for New Zealand and the planet.” (Our Mission, NIWA (last visited Sept. 7, 2012).) The institute has maintained the country’s National Climate Database since 1992. (The National Climate Database (last visited Sept. 7, 2012.).)

In 1999, NIWA published the “Seven Station Temperature Series” (7SS) – “a statistical time series of nationally averaged annual mean surface temperature trends experienced in New Zealand since 1853.” (New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Limited, ¶ 3.) In addition, in 2009, it published an Eleven Station Temperature Series (11SS) and then in 2010 published a review of the 7SS that covered the period from 1909 to 2008. (Id. ¶¶ 5-6.) These two later publications “support the conclusion that can be drawn from the 7SS that New Zealand’s climate has experienced a warming trend over the 100 years to 2009.” (Id. ¶ 7.) The Trust argued that, in compiling the 7SS, NIWA failed to apply “recognised scientific opinion” set out in a 1993 International Journal of Climatology paper entitled “Adjustment of Temperature and Rainfall for Site Changes.” (Id. ¶ 56.)

The High Court judge, Justice Geoffrey Venning, considered that there was essentially a factual dispute, with NIWA arguing that it had applied the methodology in the 1993 paper in compiling the data and the Trust denying that and claiming that NIWA had instead applied the methodology of an earlier thesis published in 1981. (Id.¶ 83; see also ¶¶. 57-61.) NIWA also responded to the claims by stating that it “does not consider … that there is one absolutely standard global methodology for calculating adjustments in temperature series to account for site shifts that is immutable.” (Id.¶ 80.)

In considering whether the Trust had shown some defect in NIWA’s decisionmaking process or that NIWA’s decisions were wrong in principle or law, the judge rejected evidence presented on behalf of the Trust regarding scientific practices, finding that the relevant witness could not be considered an impartial expert and that his evidence was therefore inadmissible opinion, and that some of the statements were only submissions and “not evidence as to factual matters or even opinion.” (Id. ¶¶ 50-52.)

Justice Venning ruled that the Trust had not been successful in any of its challenges against NIWA. He held that “[o]n the evidence I am satisfied that the methodology applied by NIWA was in accordance with internationally recognised and credible scientific methodology.” (Id. ¶ 182.) He also referred to the “well established” position that the Court, “in considering an application for judicial review, will be cautious about interfering with decisions made by a specialist body acting within its own sphere of expertise.” (Id. ¶ 41.) He further stated that “the Court will be reluctant to adjudicate on matters of science and substitute its own inexpert view of the science if there is a tenable expert opinion.” (Id. ¶ 47.)

The judge ruled that NIWA was entitled to have its costs paid by the Trust. (Id. ¶ 186.)