Norway’s Supreme Court (Høyesterett) ruled in favour of the state on Tuesday in a long-running landmark case billed as pitting “The People vs Arctic Oil.” In this case, the state was not “The People” but instead the government-approved Arctic oil operations that once again won over Norwegians’ alleged constitutional rights to a healthy environment.
It marked the latest bitter loss for environmental organizations and activist grandparents who’ve fought against what they view as climate-unfriendly oil exploration and production for years and sued the state in 2016. Now they’re already considering taking their case to the Court of Human Rights in Strasbourg, after losing at all levels of the Norwegian court system.
“The Supreme Court is letting down youth when they give politicians the power to take a secure future away from us,” complained Therese Hugstmyr Woie, leader of the youth environmental group Natur og Ungdom (Young Friends of the Earth Norway). It was among the plaintiffs that contended the relatively new Paragraph 112 in the Norwegian Constitution gives citizens a right to, among other things, an environment that secures health and protects the nature. Oil drilling and production threaten both, they argued, thus making the state’s granting of oil licenses unconstitutional.
The Norwegian Supreme Court firmly disagreed, as had both the Oslo County Court and an appeals court. The Supreme Court justices ruled unanimously that the state neither violated the Norwegian constitution’s so-called “environmental paragraph” nor human rights when handing out licenses for oil and gas exploration and production in the Barents Sea in 2016.
There was some dissension, however, over the plaintiffs’ additional claim about alleged errors made by the state when the southeastern portion of the Barents Sea was opened for petroleum activity in 2013. Four of the 15 justices believe the consequences of carbon emissions from any oil discoveries should have been studied before the area was opened. The majority, however, found no errors regarding either financial aspects or prospective emissions. Carbon emissions, claimed 11 justices, can be considered after discoveries are made that are large enough to warrant production.
Politicians retain power over policy
In addition to all the environmental and climate issues raised in the case, debate has swirled over whether politicians or the courts have the power to form oil policy. Members of Parliament like Michael Tetzschner of the ruling Conservative Party have argued that politics can land in court, but the courts can’t force through new oil politics without a democratic decision process.
The plaintiffs (Natur og Ungdom and Greenpeace, which first sued in 2016) were basically asking Norway’s highest court “to phase out Norwegian oil operations without involving the Parliament,” Tetzschner wrote in a commentary in newspaper Dagens Næringsliv (DN) after Supreme Court proceedings concluded last month. Most of the complaints raised in the lawsuit, he argued, were political, not judicial, adding that the high court “can’t give democratic legitimacy to new and different oil politics.”
Legal test ‘killed’ environmental paragraph
The case marked the first legal test of the constitution’s “environmental paragraph” that was added in the 1990s after being hotly contended and ultimately watered down in political debate. Law Professor Hans Fredrik Marthinussen at the University of Bergen was among those reacting strongly after the Supreme Court ruling was handed down on Tuesday. He claimed that the court had effectively declared Paragraph 112 as “dead” because the justices set “a very high threshold” for challenging Parliament: only in cases where MPs have severely neglected their duties to take care of the environment.
“This means in practice that we won’t see this decision used in Norwegian courts,” Marthinussen told Norwegian Broadcasting (NRK). “I think that’s sad.” He wrote on social media that the legal prospects for challenging Norwegian environmental policy in court are thus “in crisis,” and that the high court justices “are even more conservative than I thought.”
In summary, the court determined that state politicians had indeed considered environmental consequences of Arctic oil operations, and thus acted in accordance with both the law and the constitution. They did not violate Paragraph 112, in the opinion of the court. The justices didn’t think there was enough of a connection between the climate consequences of the Arctic oil licenses and loss of life in Norway, nor is Norway considered responsible for emissions from Norwegian petroleum that’s burned in other countries. The latter ruling is significant, given how Norway already has been challenged from abroad over its carbon emissions and the government has been publicly shamed.
It all added up to a major victory for the oil industry, northern Norwegian communities that want oil activity because of the jobs it creates, and pro-oil politicians in the Norwegian government. State attorney Fredrik Sejersted, who successfully defended the state against “The People” has argued that “this is not a case of naughty authorities who want to produce oil to harm individuals. These are authorities who have weighed fundamental considerations for society. More than 90 percent of the Members of Parliament support Norwegian oil policy.”
It was a huge loss for those concerned about the environment, Norway’s high carbon emissions and the climate consequences of Norway’s oil industry both at home and abroad. The defeated environmental organizations were deeply disappointed and not giving up just yet.
“We think the Supreme Court has completely failed in its responsibility as the third branch of power in the state,” Greenpeace leader Frode Pleym told reporters at a press conference in Oslo. Woie of Natur og Ungdom called it “a hard defeat” and a “very tough message to get today.” The very fact that Høyesterett had agreed to hear their case had been encouraging, and the plaintiffs have long had support from climate experts at the UN, human rights groups and leading environmental scholars in addition to a long list of high-profile Norwegians in the arts, culture, media, academia and the legal profession.
Pleym also pointed to the “millions of children and young people around the world” who have “gone on strike in climate protests.” He thinks people’s awareness of the climate emergency and nature has risen enormously since the lawsuit was filed four years ago, and had hoped the Supreme Court would recognize that the constitutional paragraph “gives people rights and sets limits for what policitians can and cannot do.” A final appeal to the Court of Human Rights in Strasbourg is thus pending.