Constitutional complaint in norway: partial success for the climate

Norway must take into account "exported climate gas emissions" from oil and gas production. Greenpeace and Co hope for more.

Oil field in the North Sea Photo: Scanpix/reuters

"Even though the lawsuit was rejected, we have come a really big step closer to a victory," says Helga Lerkelund of the Norwegian nature conservation association Naturvernforbundet. At noon on Thursday, the "Borgarting lagmannsrett" in Oslo announced the appeal verdict in a constitutional dispute that is basically about the question of what responsibility the Norwegian state has for the effects of the country’s oil and gas production on the global climate.

The answer: none at all, insofar as it does not involve climate gas emissions on its own territory. At least that was the decision of the lower court two years ago. It follows from international law that each country is only responsible for the climate gas emissions on its own territory. For Norway’s oil and gas policy, it is therefore irrelevant what consequences the combustion of fossil fuels has on the climate after they have been exported.

However, the appellate court now takes a fundamentally different view. Norway has to take into account in political decisions in the area of its oil and gas policy "the accumulated climate gas emissions, both what these can have in terms of serious effects on climate change during extraction and during combustion". Therefore, the political decisions made in this sector could also be legally assessed under appropriate aspects in the context of a constitutional complaint. However, with regard to the specific issue at stake in the current lawsuit, it could not be affirmed that Oslo had violated such an obligation.

Norway’s "environmental article

The lawsuit is based on a detail of Norway’s oil policy. On June 10, 2016, just days after the country signed the Paris climate agreement, committing itself to the goal of limiting global temperature rise to as close to 1.5 degrees as possible – but no more than 2 degrees – ten new oil fields in the Barents Sea had been allocated by the conservative-right populist government to 13 oil companies for exploration and possible production in a "23rd concession round." Oil fields that lie further north in the Barents Sea than any previously developed.

The Scandinavian section of Greenpeace, the environmental protection organization "Youth and Environment", the Nature Conservation Association and the "Grandparents’ Climate Action" filed a complaint against this. Their argument: even more oil means even more CO2, and with the unbridled development of more and more new oil and gas fields, Oslo is contributing massively to the climate crisis, which in turn is a violation of the constitution.

The legal basis for their complaint was the "environmental article" that Norway was one of the first countries in the world to include in its constitution in 2014. This Article 112 gives "everyone" the right to an environment "conducive to health and a natural environment." The state is explicitly committed to such policies "that will secure this right for future generations."

This article is not only a program declaration, but rights can also be derived directly from it, the court now states. However, Oslo has not yet violated this regulation merely by issuing the prospecting licenses in question in the Barents Sea, argues the "Borgarting lagmannsrett". At the moment, it is still unclear what consequences this decision will have. A possible constitutional violation can be judged only if a promotion is "close at hand". So, for example, when oil and gas production is actually approved based on the licenses in question.

"We lost, but we won important partial victories. For this lawsuit and the school-striking youth," comments Frode Plym, chairman of Greenpeace Norway: "So what impact the use of Norwegian oil and gas abroad has is relevant to our laws and our policies." He added that they will now take the next step and appeal to the "Høyesterett", the country’s highest court. "We will either win in the courtroom or outside the court," Therese Hugstmyr Woie, chairwoman of "Youth and Environment" is sure. And Steinar Winther Christensen of the "Grandparents’ Climate Action" also emphasizes: "Of course we’ll keep fighting for our children, grandchildren and future generations."

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