The permits for mining at Engebøfjellet are invalid
Supreme Court judgment of 17 June 2026, HR-2026-1360-A (case no. 25-164215SIV-HRET), civil case, appeal against Borgarting Court of Appeal's jugment of 12 August 2025.
The State, represented by the Ministry of Climate and Environment and the Ministry of Trade, Industry and Fisheries (the Office of the Attorney General, acting through advocate Karen Mellingen) (assisting counsel: advocate Omar Saleem Rathore), Engebø Rutile and Garnet AS (advocate Christian Østerdahl Poulsson) (intervener), Norsk Industri (advocate Thomas Gjølberg Naalsund) (intervener) v. Natur og Ungdom (Nature and Youth) (advocate Amund Noss), the Norwegian Society for the Conservation of Nature (advocate Asle Bjelland), Norwegian Salmon Rivers (advocate Amund Noss) (intervener), the Norwegian Association of Hunters and Anglers (advocate Asle Bjelland) (intervener).
The case concerned the validity of permits for mining at Engebøfjellet. As part of the mining operations, fine-grained mine waste is deposited in the outer Førde Fjord. The deposition takes place by conveying the material through a pipeline down to the seabed, where it settles as a layer of clay. This deposition will result in the loss of benthic fauna in the deposit area during the operational period of up to 50 years and for a longer period thereafter.
The mining company was granted a permit for such deposition under the Pollution Control Act in 2016. An operating licence under the Minerals Act was granted in 2022. Mining operations commenced in 2024. One of the purposes was to extract the mineral rutile, which is used in the production of titanium metal. This is in demand in the defence, aviation and aerospace sectors.
Natur og Ungdom and the Norwegian Society for the Conservation of Nature brought an action before Oslo District Court seeking a declaration that the permits under the Pollution Control Act and the Minerals Act were invalid. The aim was to stop the deposition of mine waste in the Førde Fjord. In a judgment of January 2024, Oslo District Court found that the decisions were valid. In the District Court’s view, the environmental consequences had been adequately assessed and balanced against the societal benefits.
The environmental organisations appealed to Borgarting Court of Appeal, which obtained an advisory opinion from the EFTA Court on the interpretation of the EU Water Framework Directive. The Court of Appeal held that the permit for sea disposal was contrary to the Water Regulation and the Directive. The decisions were therefore invalid.
The Supreme Court concluded that the decisions were invalid. Under the Water Regulation and the Water Framework Directive, measures that deteriorate the status of a body of water must be justified by overriding public interest. This requirement sets limits on the authorities’ power to grant permits under the Pollution Control Act and the Minerals Act for activities affecting water quality. The discharge permit from 2016 refers to expected revenues for the State, the municipality and private actors, as well as positive effects on employment and settlement at local and regional level.
In the view of the Supreme Court, these considerations did not satisfy the requirement of overriding public interest, as interpreted by the EFTA Court. The State has also pointed to the role of the mining operations in ensuring security of supply of strategic minerals, but, in the Supreme Court’s view, the decisions in question are not based on such considerations.
The authorities must now carry out a fresh assessment of the case.
The judgment provides guidance on the requirements imposed by the Water Regulation and the Water Framework Directive for granting permits for activities that may deteriorate the status of a body of water.
Read the judgment (Norwegian only) (PDF)
Areas of law: Environmental law, natural resources law, EEA law
Key paragraphs: 63, 96, 99–101, 113, 115–116, 124, 134–135, 149, 153
Justices: Webster, Arntzen, Falch, Sæther, Sivertsen