Testing oil recovery in icy waters. (c) BSEE

Landmark verdict gives Arctic oil green light

Norway
Climate

For the environmental movement in Norway, it has been six long weeks of waiting since November court hearings in Oslo – where the future of Norway’s Arctic oil was on trial.

Every person has a right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained

Two environmental NGOs, Greenpeace and ‘Nature and Youth’, had sued the government over its awarding of new licenses for petroleum in the so-called ‘23rd licensing round’, which opens new areas on the Norwegian continental shelf for the first time in more than 20 years – further north and east in the Barents Sea than ever before. The plaintiff’s main argument was that drilling for new oil in Norway’s Arctic violates the Norwegian constitution and contravenes the Paris Agreement, as the world has already found much more fossil fuels than can be burnt while keeping global warming at less than 2 degrees Celsius.

The Norwegian Constitution’s Article 112 – the ‘Environmental Paragraph’ – states that:

‘Every person has a right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources should be managed on the basis of comprehensive long-term considerations whereby this right will be safeguarded for future generations as well...The authorities of the State shall issue specific provisions for the implementation of these principles’

Yesterday, the court’s verdict was handed down: the state is not guilty of breaching the constitution by awarding new licenses for petroleum extraction, as the negative effects of this decision, isolated from other decisions, are small compared to the other efforts the Norwegian government undertakes to limit CO2 emissions and global warming.

The court thereby aligned itself with the defence’s argument that governments are not responsible for the emissions of petroleum they have exported from their territory. It also ruled that the state did make adequate deliberations before awarding the petroleum licenses, and ordered the two NGOs to pay the state’s legal costs.

Defeat or victory?

At first glance, this sounds like an outright loss, and Norwegian media have been quick to point to the steep price – 580,000 Norwegian Kroner ($71,700) – the NGOs’ now have to pay on top of their own costs.

But was it a straightforward defeat? Both Greenpeace, and Nature and Youth, have emphasized how the verdict is also a success, both legally and in the bigger picture.

‘We have shown that the Norwegian Constitution gives future generations the right to a safe and healthy environment,’ said Ingrid Skjoldvær, head of Nature and Youth, after the verdict. ‘We see this as an important step for stronger protection of the environment, that can serve as inspiration for youth all around the world.’

The environmental movement has gained important ground with the result. The Environmental Paragraph entered the constitution only in 1992 and was updated in 2014, and has never been tested in court before. Through the work of the Oslo District Court, the verdict makes it clear that the paragraph is not just ‘for show’, but that there is a boundary the state cannot cross when it comes to actions with negative impact on the environment. Unfortunately for supporters of the lawsuit, it also ruled that it hasn’t been crossed in this particular case.

But the case has attracted attention to the issue: putting Arctic oil, and Norway’s responsibilities as a petroleum producer, on the agenda both nationally and internationally.

‘The demand for immediate action against climate change may not have been heard by the Norwegian government or courts, but every environment defender has heard the millions of people across the world who want Arctic protection,’ said Skjoldvær’s co-plaintiff, Truls Gulowsen of Greenpeace Norway. ‘This decision should serve to shape the playbook which is being used everywhere by people taking their governments to court to protect their basic human right to a healthy environment.’

High stakes

The case is part of an international trend which sees courts as an arena for environmental litigation. The court hearings, which lasted a week, were followed closely by the press, interested individuals, members of the plaintiff organizations, and the oil industry that operates on the Norwegian continental shelf.

Just as the stakes were huge for the environment, so too were the potential losses for the oil industry: a verdict ruling the 23rd licensing round unconstitutional would have meant some or all licenses in the Barents Sea South East would be invalid. This could have made Statoil’s much-discussed drilling campaign at Korpfjell and other northern wells a waste of time and money.

It could also have impacted the industry’s expectations of access to new areas to continue the ‘Norwegian petroleum fairytale’. Interest in the next licensing round announced by the government (most of which is for areas in the Barents Sea) has only attracted 11 companies, less than half of those who applied to the 23rd round round a few years ago.

US activists protest Shell’s arctic drilling.
Arctic oil trial: US activists protest Shell’s arctic drilling. Photo: Charles Conatzer & the sHellNo! Action Council, Creative Commons

Though it would be unrealistic to claim this is because of the climate lawsuit, the prospect of litigation does add to the existing financial risks in an area already marked by cost overruns, long lead-times and high extraction costs, making investment a gamble for companies if oil prices stay low.

Politically, a legal success would likely have meant further attempts to block new petroleum development in the Norwegian Parliament, where many of the smaller parties are against the northwards expansion of the petroleum sector.

No wonder then that temperatures were high in court. Many have criticized the environmental movement in the media for taking political questions to judges.

These accusations made it all the way into the court room: the state’s lawyer Fredrik Sejersted used his opening speech to accuse the environmental organizations of ‘constitutional activism’ and of making the courtroom into a ‘political theatre’. ‘The state will not be part of this performance’, he said, warning against an ‘Americanization’ of the Norwegian court system: moving political questions into the legal sphere.

But this was countered by Ketil Lund, a retired Supreme Court judge who is now with the Grandparents against Climate Change (Besteforeldreaksjonen), an organization that made an intervention in support of the plaintiffs. Lund scorned the state lawyer’s attempt at belittling his opponents, and held that the environmental paragraph is there to protect the basis of our lives and livelihoods, and safeguard them for future generations as a human right.

The state’s lawyer Fredrik Sejersted used his opening speech to accuse the environmental organizations of ‘constitutional activism’ and of making the courtroom into a ‘political theatre

With the plaintiffs’ interpretation of the paragraph winning ground in the verdict even as the case itself has been lost, the accusations that these matters do not belong in a courtroom no longer hold up: there is a limit to what the state can do, written into the constitution by the Storting, Norway’s parliament. The question remaining is where – and how – this line should be drawn.

Whether or not Greenpeace and Nature and Youth will appeal still remains to be seen. This is a question of weighing both their chances and their finances, to consider whether another expensive round in the court system is really worth it, and what might potentially be gained if they do. Meanwhile, discussions of what this verdict will mean for the environmental movement and for the future of Norwegian oil has only just begun.

Photo: Testing oil recovery in icy Arctic waters. Credit: BSEE

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