Judgment in the "climate lawsuit"
Supreme Court judgment 22 December 2020, HR-2020-2472-P, (case no. 20-051052SIV-HRET, civil case, appeal against judgment:
Nature and Youth Norway
Friends of the Earth Norway (intervener)
The Grandparents Climate Campaign (intervener)
(Counsel Emanuel Feinberg and Cathrine Hambro)
The State represented by the Ministry of Petroleum and Energy
(The Office of the Attorney General represented by Fredrik Sejersted)
(Assisting counsel Anders Flaatin Wilhelmsen)
Justices: Øie, Skoghøy, Webster, Matheson, Falkanger, Normann, Bull, Kallerud, Ringnes, Falch, Bergh, Østensen Berglund, Høgetveit Berg, Thyness, Steinsvik
Article 112 of the Constitution and the validity of a royal decree to grant production licences
On 22 December 2020, the plenary of the Supreme Court – fifteen justices – handed down judgment in the so-called climate lawsuit. The appeal against the Court of Appeal's judgment in favour of the State was dismissed with an 11-4 vote. The minority found that the appeal had to prevail on the counts related to productions licences granted in the southeast part of the Barents Sea.
The case concerned the validity of a royal decree to grant ten production licences on the Norwegian continental shelf in the south and southeast part of the Barents Sea, "the 23rd Round". The decree from 2016 was based, among other things, on the Storting's consents to opening of the Barents Sea for petroleum production in 1989 and 2013.
One of the key issues of the case was whether the decision from 2016 is incompatible with Article 112 of the Constitution on the right to a healthy environment. Further, the Supreme Court also had to assess whether the decision is a violation of Article 93 of the Constitution on the right to respect for life or Article 102 on the right to privacy and family life, and the corresponding rights in Articles 2 and 8 of the European Convention on Human Rights (ECHR), and whether the decision is otherwise invalid due to procedural errors.
Article 112 of the Constitution
The key issue was whether Article 112 of the Constitution on the right to a healthy environment gives the citizens individual rights that they may insert directly before the courts, and the extent to which the courts may review resolutions from the Storting in this area. The case did not provide a basis for assessing the extent to which administrative decisions not involving the Storting may be reviewed.
The Supreme Court unanimously found, with emphasis on preceding events and the preparatory works to the constitutional provision, that the clear starting point must be that it is the authorities' task to determine which environmental measures to implement. Article 112 of the Constitution may nonetheless be invoked directly before the courts when it comes to environmental issues that the legislature has not considered.
The Supreme Court found that Article 112 of the Constitution must also be read as a safety valve, even if the Storting has discussed the case. For the courts to have jurisdiction to set aside a legislative enactment, the Storting must have neglected its duties grossly under Article 112 subsection 3. This must also apply for other Storting resolutions and decisions to which the Storting has consented. The threshold is therefore very high.
Due to the strict criterion for review, the Supreme Court found that the royal decree was clearly not invalid based on Article 112 of the Constitution.
The Supreme Court mentioned that a number of general and specific measures have been taken to reduce the national climate emissions – including carbon tax, investments in renewable energy, grants to technology on carbon capture and storage, grants to green technology and green adjustment in general, and not least the endorsement of the EU's carbon quota system. When it comes to climate emissions from combustion taking place abroad after Norwegian petroleum export, the Supreme Court found that one must accept that the Storting and the Government base Norwegian climate policy on the distribution of responsibility between states in accordance with international agreements. Here, there is a principle that every state is responsible for combustion on its own territory. Finally, the Supreme Court referred to the strict safety regime on the Norwegian continental shelf implemented to protect against local environmental damage.
A principal issue for the environmental groups was that Norway must take a proportionally larger share of the emissions cuts, both because our petroleum production has caused great emissions, and because we have the economic capacity to do so. The groups held that Norway must therefore reduce climate emissions by at least 60 percent within 2030. The environmental groups also argued that until a detailed legal framework and climate accounts are in place, the authorities cannot commence exploration in new areas.
In the Supreme Court's view, a validity action like the present one could not be used to draw up such specific requirements based on Article 112 of the Constitution. The starting point for the courts’ assessment in a validity action is the contested decision. The arguments of the environmental groups implied that central parts of the Norwegian petroleum policy, with production and export, would be put to the test. This was outside the scope of what the Supreme Court could consider.
Article 93 of the Constitution and Article 2 ECHR, and Article 102 of the Constitution and Article 8 ECHR.
The Supreme Court also unanimously found that the royal decree does not violate Article 93 of the Constitution and Article 2 ECHR on the right to life or Article 102 of the Constitution and Article 8 ECHR on the right to respect for private and family life. During the hearing, the environmental groups had referred in particular to the Urgenda case from the Netherlands, but this judgment has little transfer value to the Norwegian climate lawsuit. First, the Urgenda case dealt with whether the Dutch government could lower the general emissions goals it had already set. It was thus not a question of prohibiting a special measure or possible future emissions. Second, it did not concern an action contesting the validity of an administrative decision.
The majority of eleven justices found that no procedural error had been made, and that possible errors under all circumstances had not influenced the royal decree.
A minority of four justices found that procedural errors had been made during the opening of the southeast part of the Barents Sea in 2013, as possible future global climate emissions had not been considered in the environmental impact assessment forming the basis for the opening. In the minority's view, this had to imply that the opening of the southeast part of the Barents Sea must be considered anew, based on a new environmental impact assessment.