New Zealand introduces statutory bar on climate change-related torts

On 24 August 2026, the New Zealand Climate Change Response (Tort Liability) Amendment Act 2026 (the “Act”) received Royal Assent. The Act inserts a new Part 8 into the Climate Change Response Act 2002 (“CCRA”), creating a statutory bar on tort liability for climate change damage caused by greenhouse gas (“GHG”) emissions.

The bar applies to any person (including the Crown) whose activity causes or contributes to GHG emissions, directly or indirectly (including Scope 3 emissions), regardless of where or when the activities, emissions or effects occur. It extends to all forms of tort liability, including novel torts, and applies to proceedings not finally determined before commencement. No compensation is payable.

The Act is widely regarded as a response to the New Zealand Supreme Court’s February 2024 decision in Smith v Fonterra Co-operative Group Ltd, which allowed novel climate tort claims by climate advocate Mike Smith against six major New Zealand emitters to proceed to trial.

Key takeaways

• The Act creates a broad statutory bar on tort liability for climate change damage caused by GHG emissions. The bar applies to any person, including the Crown, and captures direct and indirect emissions, all forms of tort liability, and both interim and final remedies.

• The bar applies to the ongoing Smith v Fonterra proceedings and any other proceedings not finally determined, as well as to pre-commencement activities, emissions and effects. No compensation is payable.

• The definition of “emissions-related climate change effects” is deliberately expansive, capturing climate change itself and any resulting damage, harm or loss, including tikanga Māori conceptions of harm and threats to a safe and habitable climate system.

• Certain routes to accountability are preserved. The Act does not affect tort liability for non-climate effects of emissions (such as localised ash residue or odours), liability for breach of statutory duty or misfeasance in a public office, criminal liability, or judicial review. Obligations under the CCRA (which establishes New Zealand’s domestic emissions reduction targetsand carbon budgeting framework and imposes reporting and unit-surrender obligations on private-sector emitters through the Emissions Trading Scheme (“ETS”)) remain unaffected.

• The Act has generated controversy. Mike Smith has filed a separate High Court claim challenging the Government’s decision to introduce the legislation, and a complaint has been lodged with the UN Special Rapporteur on Human Rights and Climate Change.

• A separate Supreme Court case, Smith v Attorney-General, testing the Crown’s broader climate response under public law, the New Zealand Bill of Rights Act and the Treaty of Waitangi, was heard on 17-19 August 2026. Judgment in the matter is pending. 

• The Act is part of a wider global trend. Bars to liability have also been proposed in Germany and the United States, reflecting an emerging legislative pushback against the expansion of climate litigation.

Background 

Smith v Fonterra was brought by climate advocate Mike Smith against six major New Zealand corporate emitters, asserting causes of action in public nuisance, negligence and a proposed novel “climate system damage” tort.

The lower courts struck the claims out, but in February 2024 the Supreme Court unanimously allowed the case to proceed to trial, holding that Parliament had not displaced the common law of tort in the climate context and noting that section 23 of the Resource Management Act 1991 “expressly preserves access to common law rights of action”. Trial had been scheduled for April 2027.

The Government introduced the Bill in late June 2026 and secured Royal Assent within two months under an accelerated parliamentary process. It took the position that tort law is not an appropriate mechanism for addressing GHG emissions and that allowing novel torts to develop could create a “parallel and contradictory regime” alongside the statutory climate framework.

Justice Minister Paul Goldsmith framed the Act as providing businesses with “certainty around their climate change obligations”, arguing that the courts “are not the right place to resolve claims of harm from climate change”.

The Act in detail

The statutory bar

The Act introduces a new Part 8 (sections 271–274) to the CCRA. New section 271 provides that any person who carries out an activity causing or contributing to GHG emissions (whether directly or through a related activity), where those emissions cause or contribute to emissions-related climate change effects, has no tort liability for those effects.

The bar is deliberately broad. Section 271(3) confirms that it applies regardless of whether the activities, emissions or effects occur in or outside New Zealand; whether they occurred before, at or after commencement; and whether the causal contribution is actual or potential, direct or indirect. According to the Act’s explanatory note, the definition captures both Scope 1 emissions and Scope 2 and Scope 3 (indirect) emissions, including emissions from a factory’s purchase of non-renewable energy generated by another person.

The definition of “tort liability” in new section 273 covers any liability in tort, whether corresponding to a form recognised at common law before commencement or one that “but for this Part, may have been recognised at common law at or after that commencement”. It encompasses direct and vicarious liability and captures the full range of interim and final remedies.

Meaning of “emissions-related climate change effects”

New section 272 captures climate change itself (adopting the definition in Article 1(2) of the UN Framework Convention on Climate Change) and any “damage, harm, interference, loss, obstruction, or wrong, in or outside New Zealand” caused by climate change. Illustrative examples include threats to a safe climate system, endangerment of public life, safety or health, interference with public rights or property use, and harm including tikanga Māori conceptions of harm.

The explanatory note acknowledges that these examples do not necessarily reflect any currently recognised head of tortious liability. They are drawn from the causes of action in Smith v Fonterra and from section 145 (criminal nuisance) of the Crimes Act 1961, included to ensure the bar “is applied regardless of plaintiffs claiming novel forms of loss”.

Immediate application and no compensation

The Government describes the Act as not strictly retrospective, on the basis that it does not affect proceedings that have been finally determined. However, it applies to proceedings commenced but not finally determined before commencement (including any appeal or rehearing) and to activities, emissions and effects occurring in whole or in part before commencement.

New clause 54 in Schedule 1AA provides that no person is entitled to compensation of any kind on account of the Act’s operation.

Statutory bar overrides other legislation

New section 274 provides that the bar applies regardless of whether other legislation applied to the relevant activities, whether the person complied with it, or whether they were subject to enforcement action for non-compliance. A consequential amendment to section 23 of the Resource Management Act 1991 confirms that the preservation of common law rights in that section does not limit new Part 8. Where there is tension with other legislation relating to Part 8, the Act prevails.

What the Act does not affect

Specific carve-outs provide that the Act does not affect:

• obligations under the CCRA (which establishes New Zealand’s domestic emissions reduction targets and carbon budgeting framework) or under the ETS, together with related regulatory and enforcement action;

• tort liability for effects of emissions that are not emissions-related climate change effects (for example, the explanatory note gives ash residue falling on nearby buildings, or odours affecting the surrounding area, as illustrations);

• tort liability for breach of a statutory duty, or for misfeasance in a public office;

• criminal liability (the Act is confined to civil tort claims);

• judicial review of decision-making processes and decisions under the CCRA; and

• the rules for choice of law in tort, including those established by the Private International Law (Choice of Law in Tort) Act 2017.

Global context

The Act reflects a growing tension between the expansion of climate litigation and an emerging legislative pushback in some jurisdictions.

In Germany, the Bavarian State Government submitted a proposal to the Federal Council (Bundesrat Drucksache 285/26) to amend the Federal Emissions Control Act (BImSchG) to bar private-law claims for climate-related effects of GHG emissions where the emissions were publicly authorised. The proposal is at an early stage in the legislative process.

In the United States, the Stop the Climate Shakedowns Act of 2026, introduced in April 2026, would prohibit civil liability against energy-sector parties for damages arising from use of their products, dismiss pending climate liability actions, void state “energy penalty” laws, and reaffirm exclusive federal authority over GHG regulation. The bill has been referred to committee in both chambers and has not yet been advanced further.

The immediate effect of the new legislation in New Zealand is that there is no risk of civil tort claims for climate change harm caused by GHG emissions in New Zealand, providing legal certainty for businesses with a New Zealand nexus.

However, for corporates and financial institutions operating across multiple jurisdictions, the picture is more complex. 

Regulation of GHG emissions continues to develop across the globe, the trajectory of climate litigation risk in other jurisdictions remains on an upward trajectory, and the New Zealand Act’s durability is untested. The next New Zealand general election is scheduled for 7 November 2026, and the Labour Party has publicly committed to repealing the Act if it forms the next government (a position echoed by the Green Party and Te Pāti Māori, both of which also voted against the Bill). A change of government could create a realistic prospect of amendment or repeal.

What should businesses do?

Continue to monitor exposure across jurisdictions

The New Zealand bar is confined to tort claims for emissions-related climate change effects under New Zealand law. Multinationals will need to continue tracking climate litigation risk in each jurisdiction in which they operate.

Watch the durability of the legislation

Businesses relying on the certainty the Act provides should factor in the risk of repeal following any change of government and monitor the parallel Smith v Attorney-General proceedings.

Track the wider legislative response

Whether other jurisdictions follow the New Zealand model, and how such legislation is framed (particularly on retrospectivity and carve-outs), will materially affect the trajectory of corporate climate litigation risk.