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Norway: Supreme Court Rules on Scope of Climate Provision in Constitution, Finds Government May Issue Exploratory Arctic Drilling Permits

(Mar. 31, 2021) On December 22, 2020, the Norwegian Supreme Court ruled that the Norwegian Constitution does not prevent the country’s government from issuing permits to explore drilling in the Arctic. (Supreme Court Decision HR-2020-2472-P (sak nr. 20-051052SIV-HRET), Dec. 22, 2020.) In doing so, the Supreme Court also established the boundaries and meaning of the right to a clean environment (“rett til miljø”) found in article 112 of the Norwegian Constitution.

Background

The Norwegian government adopted a resolution on June 10, 2016, on the issuance of 10 permits to explore drilling in the Arctic’s Barents Sea. The issuance of the permits is commonly known as “the twenty-third concession round” (den 23 konsesjonsrunden). Two weeks later, Norway signed the Paris Agreement on Climate Change, under which Norway is obligated to limit its emissions of greenhouse gases. The Paris Agreement entered into force on November 4, 2016.

Environmental organizations, including Greenpeace and Nature and Youth Norway (Natur and Ungdom), brought a claim in the District Court of Oslo, arguing that issuing the permits violated the Norwegian people’s right to a clean environment, as established in article 112 of the Norwegian Constitution, as well as Norway’s international obligations as a party to the Paris Agreement.

The district court ruled that article 112 did not make the permits invalid, finding that the threshold for violations under article 112 is high and had not been breached. The Court of Appeal in Oslo affirmed this decision, and the plaintiffs pursued review by Norway’s high court.

Environmental Protections in the Norwegian Constitution

Article 112 of the Norwegian Constitution stipulates as follows:

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.

In weighing the subject of article 112, the Supreme Court looked at the provision as it was first included in Norway’s Constitution in article 110b in 1992, which stated as follows:

Everyone has a right to an environment that ensures health and to a nature where reproduction and [bio]diversity are protected. Nature’s resources shall be disposed from a long-term and versatile perspective that includes also the right of future generations.

In order to protect this right in relation to the previous sentence, citizens are entitled to knowledge about the state of the environment and the effects of the planned and implemented actions in nature.

Issue Before the Court

The issue before the Supreme Court was whether article 112 of the Norwegian Constitution means that the issuance of the permits was unconstitutional, as it risked negatively affecting the environment. Part of that question was whether granting the permits violated Norway’s obligations as a party to the Paris Agreement on Climate Change. The Supreme Court found that granting the permits violates neither Norway’s Constitution nor the Paris Agreement.

Supreme Court’s Analysis

Examining whether the right to a clean environment found in article 112 is a goal paragraph rather than an explicit right, the Supreme Court turned to the legislative history of the Norwegian Constitution. It found that article 112 does not merely establish a goal but creates obligations that apply to both positive and negative actions. Specifically, it found that,

[a]s part of government administrative decisions, which the Norwegian Parliament has not been involved in, article 112 of the Constitution will be relevant as an element during the legal interpretation, and as a mandatory consideration in the exercise of [its] discretion.

In this case, this means that the environment must be considered prior to the granting of exploratory permits. The Supreme Court found that the environment had been considered when the Parliament opened the Barents Sea for exploration (prior to awarding the specific permits) and that, therefore, it could not invalidate the decision absent a gross violation of article 112, which had not been proven.

The Supreme Court also defined the geographical scope of article 112. Typically, the Norwegian Constitution does not protect against actions undertaken outside of Norway, but an exception exists under article 112 if the effects of an action abroad can be felt within Norway. Thus, if the burning of petroleum or gas produced by Norway abroad causes harm in Norway, article 112 will protect against such actions. However, the Supreme Court found that it could not be established that granting exploration permits alone was sufficient to be deemed an injury to Norway. Thus, the high court held that the appeal should be rejected. Ten judges on a panel of 15 judges concurred with Judge Høgetveit Berg’s majority opinion.

Concurrence on Article 112’s Scope but Not About Its Application

Judge Webster, joined by three other judges, wrote a separate opinion concurring on the scope of article 112 but not about its application here, arguing that “the result of the missing evaluation of the climate consequences [as part of granting the specific permits] must be invalidation.” Because Judge Webster and the judges who joined in his opinion agreed on article 112’s scope, the high court’s decision is unanimous in that regard.