Norway

In Norway, there has not been any case in which an individual has brought a private actor to Court for allegedly breaching the law by carrying out operations that contribute negatively to climate change.

The main reasons for the lack of these kinds of cases are (i) high costs associated with accessing courts, and (ii) traditional judicial deference to public authorities’ evaluation concerning permitted activities carried out by private actors. However, future cases could be envisioned on the following grounds.

First, citizens (or a citizen group) may rely on administrative law by challenging the permit issued for the specific activities carried out by private actors. Hence, litigation would be against the permitting authority, with indirect effects on the private actors (supra Scenario 2). For example, plaintiffs can challenge the permit due to a level of project emissions that is not in line with the national or global carbon budget. However, it is unsure whether Norwegian courts would consider scope 3 emissions, namely the emissions derived from burning Norwegian oil and gas abroad. These were acknowledged as legally relevant in Greenpeace Nordic Ass’n and Nature & Youth v Norway Ministry of Petroleum and Energy (in the second and third instances), but the courts stopped short of mandating a calculation for the specific project and their legal adjudication as to the validity of the decision at issue.

Second, citizens (or a citizen group) may rely on tort law by bringing an action against industrial operators in order to request injunctive reliefs and/or damages claims in civil courts. In principle, the Neighboring Properties Act allows lawsuits when damage or nuisance on a neighboring property is unreasonable or unnecessary. Injunctions are impermissible when the permit is formally approved under the Pollution Control Act, whereas the right to compensation applies. Only economic loss may be compensated as a rule of civil liability. However, principles such as the polluter pay principle may practically lead to compensation also for damage on the natural environment. The concept of neighboring property is construed liberally in Norway as to include the neighborhood in general. Individuals should have property links with the neighborhood where the industrial installation operates. However, plaintiffs seem more likely to succeed by grounding their request on the detrimental health effects of the emissions (e.g., emissions of the aluminum sector), rather than on the danger of GHG emissions per se, given that electricity is mostly generated by hydropower.

Second, citizens (or citizen group) may rely on criminal law. In fact, the State Nature Inspection and Økokrim can start a criminal investigation motu proprio or as prompted by individuals. If a permit had been issued, normally the permit should be breached for the investigations to start. Intentional or negligent conduct resulting in significant pollution is punished with imprisonment up to 15 years. Imprisonment up to 6 years is imposed for intentional or grossly negligent conduct reducing the natural stock of protected organisms that are endangered by national or international threat or inflicting considerable damage on protected areas, and this threshold seems high.

With specific regard to pension funds, the funds’ beneficiaries can in theory request climate change information and assessments and challenge some of the funds’ investments on the grounds of their responsibility in supporting climate-endangering activities or insufficient due diligence. Young beneficiaries would be stronger plaintiffs as today’s investments in fossil fuel will damage their pensions (e.g., for the risk of stranded assets) and quality of life. Norwegian citizens virtually hold a stake in the world’s largest fund—the so-called Oil Fund (Norway’s sovereign wealth fund). Given the Oil Fund’s recent divestment initiatives and its role in financing the Norwegian welfare state, successful litigation may be hard. Banks have been limned by Norway’s divestment movement for their lending support of, e.g., the Dakota Access Pipeline, which they eventually dropped.

In terms of business and human rights, Norway passed the Transparency Act in June 2021, a due diligence law that has made disclosure and due diligence obligations mandatory, including when the effects of business activities violates human rights encompassing the right to environment. Yet, this extension of obligations to environmental matters is implicit. This law has been drafted and enacted under the auspices of the Ministry of Children and Families and applies to larger companies that are registered in Norway and offer goods and services in Norway, as well as larger foreign enterprises that offer goods and services in Norway and are subject to taxation in Norway.