The Norwegian Plenary Supreme Court rejected the appeal by environment associations for invalidity of the 23rd licensing round on the NCS

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Published 22 December 2020
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The Norwegian plenary Supreme Court rejected on 22 December 2020, with a majority of 11 judges, the appeal by environment associations for invalidity of the 23rd licensing round. A minority of 4 judges voted in favour of invalidity.

The case concerned the award of ten petroleum licenses in the Barents Sea in the 23rd round in 2016. The 23rd licensing round took place after the Parliament (Stortinget) had decided to open this area for petroleum activities.

The environment associations "Natur og Ungdom" and "Föreningen Greenpease Norden" with supporting interventions of "Naturvernforbundet" and "Besteforeldrenes klimaaksjon" claimed that the award was in contradiction with section 112 of the Norwegian Constitution. Their claims had been dismissed by the Oslo District Court in 2018 and the Borgarting Court of Appeal in early 2020.

Section 112 provides a right to every person to an environment that is conducive to health and a requirement that natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right also for future generations. The third paragraph requires the authorities to take appropriate measures for the implementation of these principles.

A unanimous Supreme Court expressed that it is as a main rule up to the authorities, and not to the courts, to determine the implementation of environmental measures. The courts may, however, apply section 112 in cases concerning environmental problems that the legislator has not taken a position on. Section 112 thus remains a safety valve even if the matter has been treated by the Parliament. It is thus a high threshold before the courts can set aside a decision by the Parliament. On this basis it was concluded that the 23rd concession round was clearly not in contradiction with section 112.

The Supreme Court referred to the many measures that have been implemented to reduce national CO2 emissions. A claim for invalidity on the basis of a requirement that Norway would have to cut CO2 emissions by 60% in 2030, was deemed too specific to give basis for invalidity under section 112.

A unanimous Supreme Court further concluded that the licensing round decision was not in contradiction with section 93 of the Constitution and Article 2 of the European Convention on Human Rights concerning the right to life, and section 102 of the Constitution and Article 8 of the Convention on the right to private life and family life. The 2019 Urgenda case from the Supreme Court in the Netherlands, which affirmed that the Dutch government was responsible for management of carbon dioxide emissions for the country and was bound to protect human rights, had little transferable value.

With this clear rejection of the relevance of human rights legislation, including the relevance of the Urgenda case, it seems to be a low probability that the case may be brought before the European Court of Justice with any success.

A minority of 4 judges found that an error had been made in the administrative treatment of the area opening decision as possible future global CO2 emission had not been evaluated in the environment impact assessment that was the basis for the decision. They concluded that the opening decision was invalid on this basis, but the majority ruled otherwise.

With this judgement the future of the Norwegian petroleum activities can be expected to continue to generally lie in the hands of the politicians, and not of the courts. However, new climate and environmental litigations cannot be ruled out.