Two environmental NGOs sought a declaratory judgment from the Oslo District Court that Norway’s Ministry of Petroleum and Energy violated the Norwegian constitution by issuing a block of oil and gas licenses for deep-sea extraction from sites in the Barents Sea. Their petition highlighted several key factual points:
-- the licenses would allow access to as-yet undeveloped fossil fuel deposits, and such development is inconsistent with the climate change mitigation required to avert global warming of 1.5°C and possibly even 2°C in excess of pre-industrial levels;
-- the area made accessible by the licenses would be the northernmost yet developed, and would abut the ice zone—thus rigs and tankers would be exposed to unprecedented risks of damage and spills, and their operation would deliver emissions of black carbon to the highly sensitive arctic; and
-- the Norwegian government will incur costs to develop the sites, and will only recoup those costs if the oil and gas they produce commands and adequately high market price.
It situated these points in a legal context shaped most fundamentally by article 112 of the Norwegian Constitution, which establishes a “right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained.” Other constitutional provisions cited in the petition as relevant to the licensing decision included those requiring government action to be consistent with: the precautionary principle; the no harm principle as it applies both domestically and to citizens of other countries; and human rights protections.
The Oslo District Court ruled in favor of the Norwegian Government on January 4, 2018. The court recognized that Article 112 of the Constitution is a rights provision, but found that the government did not violate any relevant rights because it had fulfilled the necessary duties before making the licensing decision. The court also declared that, “[e]missions of CO2 abroad from oil and gas exported from Norway are irrelevant when assessing whether the Decision entails a violation of Article 112.” In its assessment of whether the government had fulfilled its duties in regard to traditional environmental harm or other climate effects, the court noted that the Storting, (the Norwegian Parliament), had broadly agreed to open the southeast Barents Sea to licensing and had considered proposals to halt that licensing or review whether it was inappropriate in light of the goals of the Paris Agreement on climate change. According to the court’s decision, the involvement of the Storting could be found in itself sufficient to indicate that the duty to take measures had been fulfilled.
Greenpeace Nordic and Nature and Youth appealed the decision to the Bogarting Court of Appeal. Appellants allege that “[t]he District Court erred in interpreting Article 112 in such a way that it limits the duty of the Norwegian government to guarantee the right to a healthy environment.” They argue that the court interpreted Article 112 too restrictively in reaching the determination that Norway is only responsible for the greenhouse gas emissions released within Norwegian territory.
On January 22, 2020, the Borgarting Court of Appeal affirmed the District Court's decision ruling that the oil and gas licenses are valid. According to a press release issued by the Court, it parted company with the District Court in holding that article 112 of the Norwegian Constitution applies to the environmental damages alleged, including emissions of greenhouse gases from the combustion of oil and gas after export, and that emissions resulting from the relevant decision cannot be considered in isolation. However, the Court of Appeal held that the threshold for a violation of article 112 is high, and courts should exercise restraint in reviewing decisions by the political branches. The Court held that the appellants could not show a violation of article 112 in this instance, particularly because it is uncertain whether and to what extent to the licenses will lead to increased greenhouse gas emissions.
An English translation of the judgment will be posted once it becomes available.
|10/18/2016||Petition||Download||No summary available.|
|01/04/2018||Judgment||Download||Unofficial English translation of the January 4, 2018 judgment|
|03/09/2018||Reply||Download||Unofficial English translation|
|01/22/2020||Judgment||Download||Judgment in Norwegian|