Despite finding a constitutional obligation to consider the right to a healthy environment as a principle, Norway’s Supreme Court permits the issuance of petroleum exploration licenses in the once-pristine Barents Sea.
The case involved a dispute over Norway’s government granting petroleum exploration licenses in the Barents Sea, a region previously closed to licensing. Environmental organizations contested the licenses, arguing that they violated Article 112 of the Norwegian Constitution, which protects the right to a healthy environment (R2HE). They contended that the drilling and subsequent burning of fossil fuels would exacerbate climate change and endanger the immediate ecosystem. Furthermore, the State had not adequately considered its human rights obligations.
The Norwegian Courts ultimately upheld the government’s decision, ruling that while Article 112 obliges the state to consider the principle of R2HE, it does not create a fundamental right to R2HE. Furthermore, the Court found that an international R2HE had not crystallized. The Supreme Court determined that the environmental impacts of the licenses were not significant enough to warrant overturning the decision.
In 2016, a few days before Norway signed the Paris Agreement, the Norwegian government offered ten production licenses for petroleum development through its Ministry of Petroleum and Energy. These licenses were located in the Barents Sea, in areas previously closed for licensing. Within the licensed areas, companies had the right and a duty to complete seismic surveys and drill, among other activities.
Drilling and petroleum production activities in the Sea’s marginal ice zone raised concerns regarding their impact on the area’s delicate ecosystem. Additionally, licensing would lock in and facilitate future petroleum production and burning of fossil fuels that worsen climate change. In response, a coalition of environmental organizations (claimants) concerned about Norway’s greenhouse gas (GHG) emissions petitioned the Norwegian Courts. They alleged that the Ministry of Petroleum and Energy violated Article 112 of the Norwegian Constitution –which addresses the people’s right to a healthy environment (R2HE)– by issuing the licenses. As the claimants argued, it places an irrefutable limitation on the government from acting in ways that may seriously harm human health. While the thrust of their argument discussed R2HE implications of the license grants, the claimants highlighted the impacts of climate change on the rights to life and health.
In 2018, the claimants lost in Oslo District Court, which found that the State had not violated their R2HE or the other rights asserted by the claimants, as it had taken the necessary steps, fulfilling its duties, before issuing the licenses. The Court further found downstream emissions outside of Norway following fuel extraction were irrelevant in the Article 112 analysis. The claimants appealed, arguing that Article 112 had been interpreted too narrowly; however, the Court of Appeal confirmed the District Court’s decision. The Court stated that the judiciary needed to be restrained when reviewing political decisions, setting a high threshold for an Article 112 violation. The claimants appealed again to the Norwegian Supreme Court.
In a defeat for the claimants, the Court upheld the licenses for deep-sea extraction. The Court reasoned that while the Norwegian Constitution protects citizens from environmental and climate harms, the future emissions from exported oil are too uncertain to bar the granting of these petroleum exploration licenses. With all domestic remedies exhausted, the claimants filed an application with the European Court of Human Rights in 2021, arguing that the Norwegian government’s actions had violated the European Convention on Human Rights. The case is currently pending.
Article 112 in Chapter E of the Norwegian Constitution —which addresses human rights— guarantees that “[e]very 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.” It further mandates that Norwegian authorities “shall take measures for the implementation of these principles.” The claimants contended that the issuance of drilling licenses infringed upon their R2HE, as the subsequent burning of excavated fossil fuels would exacerbate climate change and endanger the pristine and sensitive ecosystem of the marginal ice zone.
The claimants argued that this language established a limit on environmental damage and risk and a proportionality requirement for decisions negatively impacting the environment. Consequently, they asserted that fuel production’s immediate and long-term, dispersed impacts threatened their fundamental R2HE protected under Article 112. Furthermore, they alleged procedural errors in the licensing process, where the climate and environmental impacts had not been adequately considered.
However, the Court disagreed with characterizing R2HE as a fundamental constitutional right, instead labeling it as a principle. While principles typically do not confer the right to adjudicate, the quasi-right nature of R2HE provided access to the Courts. Nonetheless, Article 112 was viewed as a safety valve to be invoked after the State had considered a case, made a decision, or consented to a decision. A gross neglect of duty under Article 112 must have occurred for the State’s legislative decision to be displaced. The Court concluded that the impact of emissions and climate change associated with oil extraction and the downstream emissions from the drilled products were not significant enough to warrant a review of the executive and legislature’s decision. There was no discernible connection between any immediate risk to the claimants’ and Norwegians’ constitutionally protected human rights and the current oil licenses.
The claimants vehemently contested license grants, contending that Norway’s international human rights obligations were disregarded. They argued that this oversight jeopardized Norway’s standing in the international community. Insisting that Article 112 must be read in concert with international legal instruments and principles, the claimants emphasized the presumption principle, which mandates incorporating international law rules and fundamental principles like the precautionary principle into domestic law. Drawing on a wealth of international agreements and case law, they underscored the global consensus on applying the precautionary principle, mitigating transboundary harms and safeguarding the right to climate protection under human rights law.
However, the Court remained unpersuaded. It held that the claimants had failed to demonstrate that Norway breached any international obligations throughout the licensing process. Moreover, the Court asserted that Norway could not be held accountable for greenhouse gas emissions released beyond its borders that resulted from domestically extracted fuel. Instead, the Supreme Court emphasized the absence of an internationally recognized R2HE supporting its interpretation of Article 112. According to the Court, while the provision imposes an obligation on the state to consider the principle of R2HE, it does not confer a fundamental right to a healthy environment.
The claimants argued that Article 112 of the Constitution imposed a limitation and obligation on the State, namely that the authorities ‘shall take measures’ to implement R2HE. However, the Court questioned the claimants’ assertion that R2HE constituted a fundamental right, characterizing it as a third-generation human right with limited international recognition. It was not a binding rule of international law. While acknowledging that the principle of R2HE could still support legal claims in the Norwegian courts, the Supreme Court emphasized that its quasi-right status created an intermediate level of protection, constraining judicial review of the State’s political and economic decisions. By determining that the governmental authorities had adequately considered the minimal GHG emissions associated with issuing petroleum licenses and drilling, the Court concluded that the government fulfilled its due diligence obligations. Furthermore, the Court deemed the projected large downstream emissions abroad resulting from burning fossil fuels too speculative and beyond the scope of constitutional
The case clarified the interpretation of Article 112 of the Norwegian Constitution, highlighting the quasi-rights nature of R2HE in Norway and establishing a high bar for judicial review. While R2HE obliges the government to consider environmental principles, it does not confer a fundamental right. Although the Court did not find a violation of international obligations, the case underscores the importance of leveraging international legal instruments and principles in environmental and rights litigation. Currently, the case is in the European Court of Human Rights, where the Court has promisingly called it an “impact case,” potentially expediting the process as it addresses pressing issues.
