Natur og Ungdom and Föreningen Greenpeace Norden v The Government of Norway

On 10 June 2016, the Norwegian Government issued a Royal Decree awarding production licences for petroleum exploration on the Norwegian continental shelf in the Barents Sea South and Barents Sea South-East (the "23rd Licensing Round"). Ten production licences were awarded for a total of 40 blocks. The areas were located north of Norway between 71° 30' and 74° 30' North latitude. Barents Sea South was opened for petroleum activities in 1989, while Barents Sea South-East was opened in 2013 following a maritime delimitation treaty with Russia. Environmental organizations Natur og Ungdom and Föreningen Greenpeace Norden (with interveners Besteforeldrenes Klimaaksjon and Naturvernforbundet) challenged the validity of the decision, arguing it violated Article 112 of the Norwegian Constitution (the environmental right), ECHR Articles 2 and 8, and involved procedural errors. They argued the decision would lead to greenhouse gas emissions from both production and combustion of exported petroleum, contribute to catastrophic climate change, and risk local environmental harm to vulnerable Arctic ecosystems including the ice edge and polar front.

• Does Article 112 of the Norwegian Constitution grant substantive individual rights that can be judicially enforced?
• What is the content and threshold for review under Article 112 of the Norwegian Constitution?
• Does Article 112 apply to greenhouse gas emissions from petroleum production and from combustion of exported petroleum?
• Is the 23rd Licensing Round decision contrary to Article 112 based on climate impacts and local environmental risks?
• Does the decision violate ECHR Articles 2 (right to life) or 8 (right to private and family life), or corresponding Norwegian constitutional provisions in Articles 93 and 102?
• Are there procedural errors in the decision-making process relating to assessment of socio-economic benefits, climate effects, and local environmental impacts that render the decision invalid?

1. The appeal is dismissed. 2. Legal costs are not awarded, neither for the District Court nor the Court of Appeal.

Article 112 of the Norwegian Constitution grants substantive individual rights that can be judicially enforced, not merely policy principles, based on the text ("right"), placement in the human rights chapter, and preparatory works. The provision applies to all environmental harm including greenhouse gas emissions from petroleum production in Norway and from combustion of exported petroleum abroad. When measures have been taken under Article 112(3), the threshold for finding a violation requires an overall assessment of remaining environmental harm after measures, with authorities having considerable discretion in choosing measures and a high threshold for judicial intervention. The threshold is particularly high for climate policy decisions involving socio-economic and political balancing that have been subject to thorough political processes in the Storting and Government. Regarding procedural requirements, the three-stage process under the Petroleum Act (opening, licensing, plan for development and operation approval) must be assessed as a whole, with the level of detail required for environmental assessment adapted to the uncertainties inherent at each stage; general climate policy issues are appropriately addressed at an overall political level rather than in individual licensing decisions where effects are uncertain and marginal.

The Court noted that while Article 112 must be interpreted autonomously from international agreements, such agreements (particularly the Paris Agreement) are crucial for solving global environmental problems and can contribute to clarifying acceptable tolerance limits and appropriate measures. The Court observed that in a low-emissions society there will still be room for some prioritized emissions, and which emissions to prioritize involves political balancing beyond judicial review under Article 112. The Court commented that the net effect of reducing Norwegian oil and gas exports is unclear and controversial, with one study suggesting the net effect of cutting gas exports would be nil and cutting oil exports would reduce global emissions by only about one-third of gross emissions. The Court noted that the Environmental Organisations' position would effectively require a controlled phasing out of Norwegian petroleum activities. On ECHR application, the Court observed that the Urgenda case from the Netherlands, while breaking new ground, had little transfer value as it involved general emissions targets rather than specific future emissions from individual fields. The Court did not need to decide whether any governmental decision with climate consequences could be challenged regardless of how marginal the isolated consequences might be. The Court left open whether, in cases where considerable time has passed since an opening decision or significant new information has emerged, the Petroleum Act's system of no assessment requirement at the licensing stage would be sufficient to fulfill requirements under Article 112 and Section 17 of the Public Administration Act.

This is a landmark case in Norwegian and international environmental law. It is the first comprehensive judicial interpretation of Article 112 of the Norwegian Constitution (the environmental right provision adopted in 1992 and revised in 2014). The Court established that Article 112 grants justiciable individual rights, not merely policy principles, and applies to greenhouse gas emissions from both domestic petroleum production and combustion of exported petroleum. This represents a significant development in constitutional environmental rights, extending protection to climate impacts and transboundary emissions. However, the judgment also established a high threshold for judicial intervention, recognizing broad governmental discretion in environmental and climate policy, particularly where the Storting (Parliament) has made repeated policy determinations. The Court's acceptance that emissions trading systems and flexible mechanisms under the Paris Agreement constitute valid "measures" under Article 112(3) is significant for climate policy. The decision is notable internationally as one of the early "climate cases" examining constitutional environmental rights in the context of fossil fuel production, alongside cases like Urgenda (Netherlands). While the appellants lost, the judgment confirms that courts can review governmental decisions for compliance with constitutional environmental protections, even in politically sensitive areas like petroleum policy. The case clarifies the relationship between national constitutional environmental rights, international climate agreements (Paris Agreement), human rights law (ECHR), and domestic administrative law. The Court's decision to award no legal costs despite the Government's victory, citing the principal importance of the constitutional issues, reflects the public interest nature of the litigation.