Norway

In Norway, there has been at least one case where a citizen (or citizen group) asserts that the state is breaching the law because it has authorized a project that contributes negatively to climate change or that fails to adapt adequately to climate change. The case is Greenpeace Nordic Ass’n and Nature & Youth v Norway Ministry of Petroleum and Energy (also called People v Arctic Oil), which included challenges to the lawfulness of oil and gas licenses, under constitutional law, international law, and other pieces of domestic law (in particular transposing the EIA and SEA directives). Greenpeace Nordic is the first climate change lawsuit brought in Norway, filed in 2016. Greenpeace contested that the Government’s grant of ten oil and gas licenses for deep-sea extraction in parts of the Barents Sea violated Section 112 of the Norwegian Constitution (right to environment), which had never been tried in court previously. Plaintiffs claimed that the decision granting the licenses (the Decision) contravened the state’s duty to assess and consider the effects of state action on the environment, including the climate. The plaintiffs also relied on the Paris Agreement, the European Convention on Human Rights, and the International Covenant on Economic Social and Cultural Rights. The plaintiffs asked for a declaration of invalidity of the Decision, which, had it been granted, would have prevented the activity from going forward. Standing to the ENGOs in the case was easily granted. In January 2018, the Oslo Court of First Instance maintained the justiciability of Section 112, but made the threshold of judicial review very high and found no breach of Section 112. Further, the court did not scrutinize the governmental assumptions on emissions and profitability of the licenses, and concluded that the increase in CO₂ emissions would be marginal, thus rejecting the plaintiff’s requests. The court apportioned the costs of the proceedings and lawyering on the plaintiffs only. In January 2020, the Oslo Court of Appeals upheld the decision, with three notable exceptions: (i) split costs due to the novelty and importance of the issues raised; (ii) the legal relevance of “exported” emissions (scope 3 emissions), namely the emissions derived from burning Norwegian oil and gas abroad. Somewhat contradictorily, the Court failed to determine the actual impact of exported emissions and the validity of the decision on this basis; (iii) a reference to Urgenda as being a landmark case about something completely different, although the provisions invoked were the same (Articles 2 and 8 ECHR)—mitigation policy instead of emissions from a specific activity that may happen in the future in a specific sector. The court added that the result in the Norwegian case was perfectly in line with Urgenda, but did not say why or how. In December 2020, Norway’s Supreme Court rejected all grounds of appeal. It held that judicial review in environmental matters can only be undertaken if the Parliament has not taken a ‘position’ on a particular matter. If the Parliament has taken any ‘position’, judicial review based on the right to environment fails. In exceptional situations, Section 112 can be a safety valve for judicial review also when the Parliament has taken a position, but only if the Parliament has grossly sidelined its duties under Section 112, third paragraph, and the threshold for review is here very high, the court said. Urgenda was found to be not applicable: (i) it did not deal with future emissions; (ii) nor with a governmental decision. On scope 3 emissions, the majority considered that the international climate regime is based on the territoriality principle. Therefore, extraterritoriality shall be considered only if emissions are proved to cause direct damage in Norway. Extraterritoriality is relevant only when extraction and construction occur, not in the exploration phase, when it would be too early to consider them (according to the judges who referenced a governmental document from 1995-1996). In the proceedings, plaintiffs pointed out that, in 10 years from now, when extraction may start, taking away the licenses would amount to expropriation under Norwegian law, which would reduce the margin of remedies to the Decision. As a rebuttal, the court restated that, when opening new areas, it is sufficient that Parliament is aware of effects abroad (but there is no need of accounting for such effects, paras 228-234). Four judges dissented, only in the finding that the EIA was faulty for not being a full EIA and for neglecting the assessment of scope 3 emissions (as based on EU law), and declared three of the licenses invalid.

Intervenor “Grandparents’ Climate Action” lodged an application with the ECtHR in May 2021. In June 2021, the two plaintiff organisations and six young Norwegians similarly lodged an application with the ECtHR, arguing that the new licenses for oil and gas exploration violated plaintiffs’ rights under ECHR Articles 2 (right to life) and 8 (right to respect for private and family life, home and correspondence). In particular, Norway allegedly discriminated against young people and the indigenous Sami minority, who will be disproportionately affected by the effects of the licenses—an overall violation of ECHR Article 14 (prohibition of discrimination). Further, plaintiffs asserted that, given the Norwegian courts’ failure to adequately assess the case, Norway violated ECHR Article 13, on the right to an effective remedy.

Broaching further litigation avenues, environmental law, in particular pollution prevention and control, can help craft litigation strategies to counter dangerous GHG emissions. Individuals may challenge pollution permits by resorting to administrative remedies before the administrative authorities. Challenging the permit may be attained on a number of grounds, either procedural or substantive. In addition, the Pollution Control Act provides for the alteration or withdrawal of the permit upon evidence that “the damage or nuisance caused by the pollution proves to be significantly greater than or different from that anticipated when the permit was issued;” that “the damage or nuisance can be reduced without unreasonable cost to the polluter;” that “new technology makes substantial reduction of the pollution possible;” that “the conditions laid down in the permit are not necessary for the purpose of counteracting pollution;” that “the advantages to the polluter or others of relaxing or rescinding conditions will be substantially greater than the damage or nuisance to the environment that will result;” or that “rules for reversing decision” would nevertheless permit such alteration or withdrawal. Individuals having an interest in the case may request an alteration or withdrawal of the permit even in the absence of the foregoing circumstances if the permit were issued more than ten years before the requested withdrawal or alteration. If the permit is not revised or annulled, plaintiffs may pursue the case in courts, even though public authorities enjoy a wide discretion. An administrative appeal is mandatory only when the relevant public body specifies that a prior administrative appeal is necessary.