The Court ruled in favour of the Norwegian State in the lawsuit by Greenpeace and Natur og Ungdom

Newsletter 2/2018

Oil and gas

In October 2016, the climate activists Greenpeace and Natur og Ungdom sued the Norwegian State claiming that the decision of opening areas in the Arctic Ocean for oil and gas exploration was a breach of article 112 of The Constitution of the Kingdom of Norway (the “Constitution”). The case was tried before Oslo District Court in November 2017, and the Court ruled in favour of the State in its judgment of 4 January 2018.

The background for the lawsuit was the Ministry of Petroleum and Energy’s (MPE) decision to open up areas of the Arctic Ocean for oil and gas exploration, and to offer 13 oil companies 10 production licences in the 23rd licensing round. The plaintiffs claimed that the Norwegian State by its decision had violated article 112 of the Constitution, and that the decision thus was invalid. The Constitution article 112 has the following wording (unofficial English translation):

“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 plaintiffs’ claimed that article 112 establishes a right in itself, and represents an absolute limit for what initiatives with environment impact that may be decided by the State. The plaintiffs acknowledged however that if sufficient measures have been implemented, the provision has not been breached, cf. third paragraph. The Court agreed with the plaintiffs that article 112 constitutes a right in itself, but stated that the right following from article 112 first paragraph must be read in conjunction with third paragraph, providing a threshold for when article 112 is breached. Hence, if sufficient measures have not been implemented, a “right” will follow from the provision.

Oslo District Court found however that the MPE had implemented sufficient measures to safeguard the environment, and that the decision to open up the area for petroleum exploration was not in breach of the threshold established under article 112. An important element of the ruling is that the Court found that activities in Norway causing CO2emissions abroad was not relevant for the assessment under article 112.

The plaintiff’s further claimed that the decision was subject to procedural errors. Also on this question the Court agreed with the Norwegian State and ruled that the process had been lawful, that different technical and political views had been assessed and that the State therefore had a sound basis for its decision to award the production licenses.

The decision to open up areas in the Arctic Ocean for oil exploration was therefore found valid and not in violation of article 112. In view of the nature of the case, it is expected that the judgment may be appealed.

 © 2018 KVALE Advokatfirma DA