Norway's Supreme Court Hears Landmark Case on Arctic Oil Drilling

File image courtesy Greenpeace Norge

Published Nov 8, 2020 5:26 PM by China Dialogue Ocean

[By Alister Doyle]

Environmental groups will urge Norway’s supreme court to block oil and gas drilling in the Arctic in a landmark case beginning this week that centers on whether the government’s policies violate rights enshrined in the constitution.

The odds seem stacked against the plaintiffs, Greenpeace Nordic and Nature & Youth, in the hearing set for November 4-12. Two lower courts have already sided with the government’s argument that it had the authority under environmental laws to permit exploration in the remote Barents Sea.

But the environmentalists have rallied influential backers to their cause this year, including David Boyd, the UN Special Rapporteur on Human Rights and the Environment, and the Swedish activist Greta Thunberg. She says Arctic oil should stay in the ground.

About 550,000 people have signed a petition in support of the environmentalists, who say that western Europe’s top oil and gas exporter is violating its constitution and the European Convention on Human Rights by allowing drilling in the fragile region, home to rich stocks of cod, haddock and king crabs.

The lawsuit also accuses the government of failing to keep its pledges to slash greenhouse gas emissions, under the 2015 Paris climate agreement.

The full 19-member supreme court will hear the case, with some justices joining via video links because of coronavirus restrictions. Reaching a verdict is likely to take several weeks.

“We want to open up a bigger debate on oil,” said Frode Pleym, head of Greenpeace Norway, which wants Norway to shift to renewable energy. Arctic drilling is costly and any oil spills could be impossible to clean up in the near-complete darkness of winter.

“Of course we want to win. It sounds like a cliché, but it’s not a loss even if we were formally to lose. It’s raising the issue up the public and political agenda.”

The environmental groups are also backed by the Norwegian group Grandparents Climate Campaign. At the heart of their case is an assertion that Norway’s 2016 award of 10 oil and gas licences in the Barents Sea violates the constitution. The new licences, the first in the Barents Sea in 20 years, were awarded to 13 companies including Equinor, Chevron, ConocoPhillips and Lukoil.

Article 112 of the Norwegian constitution says “every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained.” It also says that the right should be safeguarded for future generations.

The government counters that after listing rights the article grants it the legal authority to regulate. If the Barents Sea exploration licences “were to be contrary to Article 112, it is difficult to see which parts of Norwegian petroleum policy are not,” the attorney general’s office wrote in one court document.

Arctic drilling and human rights

Norway has long been torn between protecting the environment and jobs in the oil and gas industry. Oil revenues have helped Norway amass a $1 trillion sovereign wealth fund.

Conservative prime minister Erna Solberg says Norway backs the Paris Agreement’s goal of limiting global warming to 1.5C above pre-industrial levels while also planning to produce fossil fuels for decades to come. The government argues that Norwegian natural gas, for instance, can help the European Union to cut emissions by switching from dirtier coal in power plants.

Norway produces about 1.7 million barrels of oil per day, ranking about 15th in world output. The Norwegian Petroleum Directorate estimates that remaining oil and gas reserves in the Barents Sea are equivalent to 20 billion barrels of oil. Two fields already operate in the region – Snoehvit and Goliat.

In the past year, the environmentalists have argued more strongly that Arctic drilling violates basic human rights. They say carbon emissions are raising global temperatures, aggravating deadly heatwaves, floods and powerful storms. The government dismisses the argument as far-fetched.

The link between exploration licences “and the risk for loss of human life in Norway as a result of climate change clearly does not meet the demand of a ‘real and immediate’ risk for specific individuals,” attorney general Fredrik Sejersted wrote to the Supreme Court.

Pleym at Greenpeace said the environmentalists may appeal to the European Court of Human Rights in Strasbourg if they lose.

Should the state be responsible for emissions?

Around the world, there are currently almost 1,700 legal cases about climate change, according to a database jointly run by the Sabin Center for Climate Change Law at Columbia Law School and Arnold & Porter.

Only a handful refer to the Paris Agreement, said Daniel Metzger of the Sabin Center. Most prominently, a 2019 Supreme Court ruling in the Netherlands found the Dutch government was doing too little to combat climate change and ordered it to cut, by 2020, greenhouse gas emissions 25% from 1990 levels.

Metzger said courts are generally reluctant to get involved when the government has authority over policy. “Virtually everywhere there is some doctrine that guides a court to avoid interfering with other branches of government,” he said.

Even so, the Norwegian Supreme Court has sometimes ruled against the state. In 2010, for instance, it ruled in favour of shipowners in a taxation case, overturning a lower court verdict.

“It’s difficult to predict” the outcome in the Arctic case, said Hans Peter Graver, a law professor at Oslo University. He said the environmentalists had some good arguments but that it would be a huge leap to overturn existing laws.

Ernst Nordtveit, a law professor at Bergen University, predicted that Norway will win again, in line with a January 2020 appeals court ruling.

That ruling sided with the state but gave the environmentalists some hope by accepting that Norway bore a responsibility for emissions caused by the burning of its oil and gas abroad.

The government argues that only emissions in Norway – from drilling to refining – are relevant. But these account for only about 5% of emissions, compared to 95% when fossil fuels are burned.

Alister Doyle is a freelance reporter based in Oslo. He was environment correspondent for Reuters from 2004-19 and spent 2011-12 at the Massachusetts Institute of Technology on a Knight Science Journalism Fellowship.

This article appears courtesy of China Dialogue Ocean and may be found in its original form here.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.