Citing Failure to Consider Scope 3 Emissions, a Norwegian Court Halts Development of New North Sea Oil Fields
Norway’s Ministry of Petroleum and Energy approved plans for the final-stage operation of three new oil and gas fields in the North Sea, but civil society organizations Greenpeace and Nature and Youth sued to halt the fields’ operations. The plaintiffs alleged that the Environmental Impact Assessments (EIAs) on which the operations’ approval depended were deficient because they had not considered the indirect combustion emissions (Scope 3 emissions) that would result from the fields’ production. Failure to consider Scope 3 emissions violated national environmental laws read in conjunction with the constitutional right to a healthy environment (R2HE), the plaintiffs argued, in addition to violating international human rights laws protecting children’s rights and access to information.
In January 2024, the Oslo District Court held that the Ministry’s approval determinations were invalid for all three fields and granted the plaintiffs’ requested injunction, halting operations while the government’s appeal remains pending. Agreeing with the plaintiffs, the Court emphasized that prior Supreme Court rulings, domestic laws and regional environmental rights norms required that the Ministry assess a wide range of potential consequences, including those resulting from Scope 3 emissions.
When Norway’s Ministry of Petroleum and Energy approved a plan for the development and operation – the ‘production phases’ – of three new oil and gas fields in the North Sea, the environmental non-profits Greenpeace and Nature and Youth sued to enjoin the operations until their allegedly deficient Environmental Impact Assessments (EIAs) could be rectified. The plaintiffs specifically alleged that the impact assessments, which had been conducted by the companies licensed to explore and operate the fields, failed to include an assessment of the indirect combustion emissions produced by the extraction of fossil fuels from the fields in question (‘Scope 3 emissions’). In response, the Ministry argued that consideration of Scope 3 emissions was not required under the law, and that a more general assessment of the combustion emissions by the Ministry sufficed.
Maintaining that consideration of Scope 3 emissions was mandatory under the Norwegian Constitution and under domestic and EU law, the plaintiffs additionally argued in the alternative that the Ministry’s decision to approve the operation (1) was based on incorrect facts and ‘indefensible’ forecasts; (2) infringed the international human rights to life, to respect for private and family life and to protection from discrimination; and (3) lastly, violated the fundamental and human rights of children and youth by failing to assess the best interests of children and the operation’s impact on them.
The Oslo District Court handed down a remarkable judgment in January of 2024, holding that the Ministry’s approvals of the oil and gas fields’ production were invalid. First, the Court found the approval decision invalid because the Ministry’s failure to assess the operations’ combustion emission impacts defied a unanimous 2020 decision by Norway’s Supreme Court – holding that combustion emissions must normally be assessed prior to such a decision – in addition to contravening domestic environmental laws read in conjunction with section 112 of the Norwegian Constitution, which recognizes the right of every person “to an environment [] conducive to health and to a natural environment whose productivity and diversity are maintained” (R2HE).
Second, the Court found the approval decision invalid under EU law, reasoning that the operations’ EIAs were deficient and that EU directives oblige states to consider a wide range of indirect and direct impacts, including transboundary impacts and consequences for the environment, human health, biodiversity, climate and cultural heritage. Notably, however, the Court found that the approval decision did not violate either the European Convention on Human Rights (ECHR) or the UN Convention on the Human Rights of the Child, because it found there was no general obligation to consider the best interests of children on an individualized operation-by-operation basis.
By way of remedy, the Oslo District Court granted the plaintiffs’ requested injunction. The government of Norway has appealed the decision, but until a final decision is reached or the District Court’s decision is overturned, the oil and gas held within these North Sea fields will remain below the surface.
Central to the Court’s revocation of the Ministry’s approval decision was its emphasis on, and recognition of, R2HE as enshrined in the Norwegian Constitution (section 112). Reading domestic petroleum and environmental laws in light of that constitutional articulation of R2HE, the Court emphasized that the EIA regime was intended to ensure transparency and citizens’ access to information, particularly regarding environmental consequences that could impact them, and ultimately held that R2HE imposed a duty on the State to assess Scope 3 emissions.
Also crucial was the prior jurisprudence of Norwegian courts, especially the Supreme Court and its holding in Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy (2020), where the Court recognized the broad national and international consensus that climate change results from anthropogenic greenhouse gas emissions, concluded that climate impacts of combustion emissions must be covered by EIAs and emphasized the real danger of critical climate ‘tipping points,’ which informed the District Court’s analysis of impact assessment regulations and obligations.
EU laws and directives also played an outsized role in this decision, independently supporting the Court’s holding that R2HE read in conjunction with environmental laws imposes an obligation to assess the impact of Scope 3 emissions when issuing approvals for petroleum production activities. The analysis of EU directives and jurisprudence by the European Court of Justice also enabled the Court to analyze the dispute within a broader context, with the Court emphasizing EU directives requiring EIAs to identify and assess a wide range of direct and indirect impacts of proposed projects, including consequences for human health, biodiversity, land, soil, water, air and climate, cultural heritage and the landscape. Citing to regional developments, the Court also clarified that this assessment must include “any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term [] effects of the project,” greatly broadening the scope of state due diligence obligations.
The plaintiffs’ case primarily hinged on their allegation that Norway’s Ministry of Energy had failed to observe its due diligence obligations by approving the petroleum operation plans for the fields in question without considering the impacts of the operations’ Scope 3 emissions. At trial, the critical question was whether there existed a legal obligation for the Ministry, and for Norway’s government, to consider those emissions. In a tentative win for the environment, the District Court confirmed that there did exist such an obligation.
In the alternative, the plaintiffs argued that the Ministry’s approval decision was invalid in virtue of its failure to assess each operations’ prospective impact on the best interests of children in Norway. Although the Court ultimately held there existed no general obligation to assess individual operations’ impact in the context of childrens’ best interests, the plaintiffs’ inclusion of this claim nonetheless added value by leading the Court to confirm that, in principle, children are undoubtedly “particularly vulnerable to the impacts of climate change and global warming as a result of greenhouse gas emissions from fossil fuels,” that the effects of climate change are long-term and could hold drastic consequences for children and future generations. In the same vein, finding there existed no obligation to assess impact on children at an approval-specific level did not prevent the Court from confirming that the Ministry and the State have an obligation to safeguard R2HE, the rights of children and the rights of future generations in applying and interpreting domestic petroleum regulations and laws.
At its core, this case placed special emphasis on the procedural requirements inherent in R2HE and the political significance of transparency, access to information and participation in environmental decision-making. The EIA requirements provided under both domestic and EU law, the Court found, mandated that the State and its relevant entities enable democratic participation and a chance to be heard and ensure that governmental decisions are based on sound and informed bases. Here, the importance of safeguarding R2HE under the Norwegian Constitution and Norway’s international obligations strongly supported a finding that the inadequacy of the EIAs made their operations’ approval decisions invalid.
Further, the Court rejected the State’s argument that a balancing of economic interests and fundamental rights supported the validity of the approval decisions. Emphasizing that democratic participation and the safeguarding of fundamental rights took precedence over large capital investments in fossil fuel infrastructure, the Court reiterated that both the State and private investors were aware of the climate risks when first they invested in the operations and confirmed that consideration of the investments at stake could not be permitted to factor significantly into its analysis.
The civil society plaintiffs here advanced a variety of claims, increasing the likelihood that the Court would rule favorably on at least one of their arguments. The plaintiffs’ claims varied both in terms of source of law and in terms of subject matter, with several of their claims premised on international and regional law and other claims based in domestic environmental and constitutional law. That the plaintiffs’ claims based on EIA requirements survived where others did not demonstrates the power of R2HE to buttress and supplement existing due diligence obligations.
The District Court upheld baseline protections for R2HE and the environment by enforcing domestic and international EIA requirements and by issuing an injunction, which prevents Norwegian authorities and private actors from operating the three oil and gas fields in question until, and if, a higher court rules in the government’s favor. By issuing injunctive relief, the Court therefore helped to prevent potential environmental harm and infringements to R2HE before damage could occur – not after.
This case demonstrates how constitutional R2HE can help to enforce existing state due diligence responsibilities and reinforce democratic and participatory environmental rights in the context of fossil fuel operations, development and approval.
Additionally, Greenpeace Nordic Association and Nature and Youth v. Ministry of Energy illuminates the incremental progress that can result from concerted litigation efforts over time. Although the Norwegian Supreme Court’s earlier decision in Greenpeace Nordic Ass’n v. The Ministry of Petroleum and Energy (2020) was widely regarded as a curtailment of R2HE’s substantive force in Norway, this case nonetheless built upon key holdings from that case to reach a result far more protective of R2HE and the environment.
