‘Disappointing’ decision from Norway’s Supreme Court in climate lawsuit challenging Arctic offshore oil licenses

“The Court has let the government off the hook at this time, but leaves the door open for an assessment on climate impacts, including emissions after export, at the later production stage."

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Image Credit: Ric Francis/Greenpeace

Norway’s Supreme Court on Tuesday ruled not to overturn the Norwegian government’s approval of new licenses for offshore oil drilling in the fragile Arctic region.

The ruling – a culmination of four years of high-profile litigation in a case challenging continued fossil fuel production on climate change grounds — came as a big disappointment, and even outrage, for environmental and climate activists in Norway and internationally.

“We are outraged with this judgment, which leaves youth and future generations without Constitutional protection. The Supreme Court chooses loyalty to Norwegian oil over our rights to a liveable future,” Therese Hugstmyr Woie, head of a youth-led environmental organization called Young Friends of the Earth Norway, said in a press release.

“I am disappointed and outraged by the fact that the Norwegian constitution doesn’t provide me and my peers with judicial protection from politicians stealing our future,” Andreas Randøy, deputy head of Young Friends of the Earth Norway, told DeSmog in an emailed statement. “I wasn’t old enough to vote out the politicians who opened up for new oil drilling in the arctic, further north than ever before. Yet I am a part of the generation who has to deal with its consequences. I really thought the Supreme Court would value that to a greater extent.”

Young Friends of the Earth Norway and Greenpeace Norway sued the Norwegian government in 2016 over the government’s granting of new offshore oil licenses in the Barents Sea. The environmental organizations argued permitting new oil drilling is incompatible with the Paris Agreement goal to limit global warming to well below 2 degrees Celsius and constitutes a violation of section 112 of Norway’s constitution that outlines a right to a healthy environment.

The lawsuit sought a court order to invalidate the oil licenses based on this constitutional provision, and considering that climate science dictates that the vast majority of fossil fuels be left in the ground to avoid the most catastrophic levels of warming. The United Nations Special Rapporteur on Human Rights and the Environment David Boyd supported the lawsuit and warned that Norway’s continued oil production during a time of climate emergency amounts to a violation of human rights

The Norwegian courts ultimately disagreed that rights had been violated. The Oslo District Court initially determined in January 2018 that there was no constitutional violation stemming from the government’s grant of new oil licenses. On appeal, a Norwegian appeals court upheld this ruling in January this year, though the appeals court did decide that the Norwegian government should be responsible for the carbon emissions tied to its petroleum exports.

The Supreme Court of Norway took up the case this year on another appeal, with hearings held in November. The court issued its decision on December 22, ruling 11-4 in favor of the government and against the environmental organizations. The four dissenting judges found the government had made procedural errors in its oil licensing decision, according to Greenpeace Norway.

The leader of Greenpeace Norway, one of the organizational plaintiffs in this case, said the Supreme Court ruling is disappointing and that the plaintiffs are looking at other avenues to continue making their case.

“It is absurd that our right to a liveable environment cannot be used to stop Norway’s most harmful activities for our climate and environment,” said Frode Pleym, head of Greenpeace Norway. “We will now consider all possibilities to stop this harmful industry, including an application to the European Court of Human Rights.”

“This should be a warning to the oil industry”

Although the Norwegian Supreme Court declined to overturn the grant of oil licenses in this instance, the ruling did acknowledge that Norwegian authorities may have a duty to deny oil companies’ permits to actually produce the oil given the constitutional right to a healthy environment.

In other words, as Carroll Muffett, president of the Center for International Environmental Law explained to DeSmog, the court concluded there is a distinction between oil exploration and oil production.

“Here’s the part that is the worst possible news for oil companies. The court actually emphasized that simply finding oil under authority of an exploration license doesn’t give any company any guarantee that they’ll be permitted to produce the oil,” Muffett said.

“There’s a real missed opportunity on the part of the court in moving the law of human rights and the rights of future generations forward in this decision,” he added. “And at the same time when you look at the practical impacts of this decision, what the decision says for industry is you’re welcome to go and invest massive amounts of money in exploring for new oil if you want, but the critical question government is going to have to ask is can you produce it if it is contributing to climate change?”

Muffett said the ruling will also increase pressure for Norway’s political leadership to listen to their citizens and consider following Denmark’s lead in halting new oil and gas exploration and production. A recent opinion poll in Norway found that a majority of Norwegian citizens agree that oil exploration in the Arctic should be stopped for climate and environmental reasons.

“The Court has let the government off the hook at this time, but leaves the door open for an assessment on climate impacts, including emissions after export, at the later production stage,” said Greenpeace Norway’s Frode Pleym. “This should be a warning to the oil industry. At this moment in history, no oil producing country holds a credible position on climate without ending exploration for new oil and setting a plan for retiring the industry.”

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