On December 22, 2020, the Norwegian Supreme Court dealt a hard blow to the fight against climate change. The Court confirmed (in Norwegian) the validity of a 2016 royal decree granting ten production licences in the Barents Sea, dismissing the claims that drilling activities violate the right to a clean environment enshrined under Article 112 of the Constitution and the right to life and the right to privacy, family life and home protected under Articles 2 and 8 of the European Convention on Human Rights (ECHR).
In 2019, Norway was the 15th largest oil producer and exports of crude oil and natural gas amounted to almost half of the country’s exports total value. This ruling is undeniably a boon to the oil industry.
A severe negligence in the implementation of the right to a healthy environment?
Article 112 of the Norwegian Constitution reads as follow:
“Every 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.
In order to safeguard their right in accordance with the foregoing paragraph, citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out.
The authorities of the state shall take measures for the implementation of these principles.”
The key issue was for the Court to determine whether this Article gives citizens individual rights that can be tried directly before courts and the extent of courts’ control over the Parliament’s decisions in this area (§81).
Relying on the preparatory works and content of the former Article 110 b on which current Article 112 is based as well as the preparation of the latter, the Supreme Court found that §1 of Article 112 is undoubtedly relevant for the interpretation of laws and for the exercise of the administration’s discretionary power (§138) and that as a starting point, it is the authorities’ duty to determine which environmental measure are to be implemented (§139). Nevertheless, Article 112 may be invoked directly before courts in relation to environmental issues not addressed by Parliament (§139).
In case Parliament has dealt with an environmental matter, Article 112 must be understood as “a safety valve” granting courts jurisdiction to set aside a legislative act only when Parliament has severely neglected its obligation under §3 of Article 112. This sets a very high threshold as acknowledged by judges (§142). While not being a mere declaration of principle, Article 112 can nevertheless be relied on directly before courts only to a limited extent (§144).
As for the application of Article 112 to greenhouse gas emissions, the Court asserted that the climate was covered by the provision (§147) while pointing out that as a rule of thumb the Article does not apply to acts and effects outside Norway (§149). Noting that around 95% of greenhouse gas emissions from petroleum extraction occur by combustion abroad after export the Court acknowledged that harmful effects will affect Norway (§155). However, the Court stressed that there has been no claim of local environmental damage as a result of the granting of production licences (§156).
After stating that the royal decree did not constitute of gross breach of Article 112§3 (§157), the Court mentioned some general and specific measures implemented by the authorities to reduce national greenhouse gas emissions (§158). Further, the Court explained that Parliament and the government rely on the division of responsibilities between States that follow international agreement regarding greenhouse gas emissions from combustion abroad. Hence, each State is responsible for the incineration that takes place in its own territory (§159).
Finally, to the argument brought by claimants according to which Norway must take a proportionately larger share of the emissions cuts because its oil and gas production leads to large emissions and because it has the economic capacity to do it, the Court answered that Article 112 is only grounds for a validity action contesting a decision (§162).
Absence of real and immediate risk
Assessing whether the royal decree violated Article 2 ECHR, the Court recalled that while the provision can impose positive duties on the State, a real and immediate risk to life is required (§166). The Court considered that such risk was not characterised in the case as, firstly it was uncertain whether or to what extent the royal decree will lead to greenhouse gas emissions, and secondly the possible effect on the climate was a long way off (§168).
As for compliance of the royal decree to Article 8 ECHR, the Court stated that the provision imposes obligations on the State if there is a direct and timely connection between the deterioration of the environment and privacy, family life or home which was not the case here (§170-171).
Hence, the decree complies with Articles 2 and 8 ECHR as well as Articles 93 and 102 of the Constitution respectively on the right to life and right to privacy and family.
The decision was reached exactly a year after the Dutch Supreme Court found that the State has a duty of care to protect its citizens against the imminent danger caused by climate change in the Urgenda case. The decision which was referred to by claimants was found by the Court to have little transfer value in the present case. According to the judges, Urgenda case questioned whether the Dutch government could lower the general emissions goals it had set and as a result was not a question of prohibiting a special measure or possible future emissions. Second, it did not concern a valid action against an administrative decision (§173).
Notwithstanding, it is interesting pointing out the different interpretations of “a real and immediate” risk to life provided by the two courts. Indeed, the Dutch Supreme Court referring to the same judgement as the Norwegian Supreme Court did, (Öneryildiz v Turkey, ECtHR) noted that “the term ‘immediate’ does not refer to imminence in the sense that the risk must materialise within a short period of time, but rather that the risk in question is directly threatening the persons involved. The protection of Article 2 ECHR also regards risks that may only materialise in the longer term” (§5.2.1).
While the European Court of Human Rights has yet never considered complaints related to climate change, it has fast-tracked the Youth For Climate Justice case, requesting the 33 defendants States to provide answers to the complaint brought by six youth-applicants. No doubt that the Court will have to provide its interpretation of what “a real and immediate” risk related to climate change is if the case is declared admissible.