The Court dismissed the claims from the environmental organisations (GreenPeace Norway and Nature and Youth) that the award constituted a breach of Article 112 of the Norwegian Constitution and that the decision breached administrative law procedural requirements. The Court also ruled that the environmental organisations must pay the State's legal costs.
This lawsuit follows the global trend of legal challenges brought against governments and companies in the fight on climate change.
Petroleum activities in the Barents Sea
The Norwegian Government opened the Barents Sea South for petroleum activities in 1990, while the South East part opened in 2013. The Ministry of Petroleum and Energy (MPE) decided in 2016 to award 10 production licenses in the Barents Sea as part of the 23rd licensing round.
Environmental organisations reacted strongly against the decision arguing that the licenses are located close to the ice edge in the Barents Sea. The organisations stated that drilling in these areas poses a threat to the environment and that it is incompatible with Norway's commitment and obligation to fight climate change under the Norwegian Constitution and the Paris Agreement from 2015.
The Court's assessment of Article 112
Article 112 of the Norwegian Constitution sets out that:
"Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.
In order to safeguard their right in accordance with the foregoing paragraph, citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out.
The authorities of the state shall take measures for the implementation of these principles."
The Court concludes that Article 112 provides individual rights that may be legally tested by the courts. The Court held that the preparatory works clearly support that such individual rights is in line with the intention of the Norwegian Parliament.
With respect to content of such rights, the Court held that a violation of the State's obligation to take measures according to Article 112 third paragraph will constitute an individual right. The Court did however conclude that any emission of Co2 outside of Norway from exported oil and gas from Norway is not relevant to take into account in this assessment. Further, the Court acknowledged the need for some political latitude with respect to whether the State's climate remedial actions are adequate and the Court should restrain its assessment of this condition.
The Court concluded that the environmental and climate risks related to the license awards are limited, and that the remedial actions imposed by the State in this case are sufficient. The Court made reference to the Co2 tax, the national quota system, the prohibition against flaring, power from shore, comprehensive HSE requirements, limitations on exploration drilling and that further assessments is required as part of the plan for development and operations. Thus, the Court concluded that the license awards do not constitute a breach of Article 112 of the Norwegian Constitution.
It is worth noticing that the judge also stated that many of the arguments made by the plaintiffs was of a political character that goes beyond what the Court should review, including the opening of the Barents Sea South East and Norwegian climate policies in general.
More climate lawsuits to come?
The plaintiffs have one month to appeal the judgement of the District Court. An appeal would not come as a surprise as this is the first time the court has interpreted Article 112 of the Constitution and given the media publicity that the plaintiffs have created with this lawsuit.
The Court's assessment of the legal sources relating to Article 112 and the conclusion that the provision in principles provide individual rights relating to the environment is interesting. Even though this case, in the Court's opinion, did not exceed the threshold of Article 112, the argumentation may open up for other lawsuits relating to environment and climate changes. It remains to be seen whether the Court of Appeal and the Supreme Court will have the opportunity to assess the District Court's interpretation and conclusions