Almost all of Norway’s electricity comes from hydropower and its domestic emissions are relatively low, meaning the country is often perceived as clean and sustainable. Yet this contrasts with the trillions it has accumulated from four decades of producing oil for export, increasing greenhouse gas emissions elsewhere. Norway is the seventh largest exporter of emissions in the world, and its emissions from exported oil and gas are ten times greater than the country’s direct emissions.
This is known as the Norwegian paradox, and on November 4 2020 the country’s supreme court will hear a crucial case that will highlight the issue. Unlike other high-profile climate lawsuits in other jurisdictions that have required governments to take more action, this one focuses on whether the court can direct the government on what action to take – specifically, to stop issuing licenses for further oil exploitation.
Historically, Norway has adopted a unique model of sustainable development by going slow on oil exploitation and using oil money to invest heavily in renewable energy. This model is now under legal scrutiny from critics who say that oil exploration, especially in the Arctic, is wrongful under any circumstance, irrespective of Norway’s commitment to renewable energy and a resilient economy. Thus, while sustainable development, renewable energy and climate targets are intuitively complementary goals, this case reveals that they may involve conflicting policies.
The case focuses on Article 112 of the Norwegian Constitution, which focuses on sustainability and protection of the environment. In 2014, the article was updated to introduce a duty of care on the government to provide a liveable environment for current and future generations. And in June 2016, Norway ratified the Paris Agreement – so far, so good. However, just a few days beforehand, Norway had also granted new licenses to explore for oil in the Barents Sea, off the country’s northern coast. This prompted an alliance of NGOs – Nature and Youth, Greenpeace, Friends of the Earth Norway and Grandparents Climate – supported by various other scientists, citizens and artists, to sue the Norwegian government in October 2016 over its Arctic oil exploration.
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In its judgement on the lawsuit, the Oslo district court assessed that Article 112 of the constitution confers a fundamental right to a healthy environment. However, the court ruled against the petitioners because “emissions of CO₂ abroad from oil and gas exported from Norway are irrelevant when assessing whether the Decision [to permit further oil exploration] entails a violation of Article 112”. Further, after the Paris Agreement was signed, the parliament introduced review measures that enabled halting oil and gas activities if they conflicted with the Agreement. The court found such measures sufficient to meet Norway’s climate change goals.
In January 2020, Oslo’s court of appeal affirmed the district court’s ruling, as the petitioners could not establish that the new oil licenses would lead to Norway not complying with its targets. However, the appeals court judgement differed from the district court in observing that Article 112 applies even to emissions from exported oil and gas – the climate, after all, does not care if Norwegian oil is burned in Bergen or Birmingham.
On further appeal by the petitioners, the Supreme Court of Norway has decided to hear the case “in full”, so all the legal arguments, facts and questions will be scrutinised once again.
The petitioners are encouraged by the Appeals Court’s interpretation of this provision as conferring rights, but are unhappy with the margin of discretion the government has in fulfilling its duties. Here lies the most notable difficulty for the petitioners, namely to connect the very idea of licensing and oil drilling in the Arctic with infringing the right to a clean, productive and diverse environment enshrined in Article 112. Further, Article 112 also elevates natural resources sustainability to a core constitutional principle. Given investments in renewable energy are facilitated by oil money, the conflict between sustainable development and climate policy is even found in constitutional law.
Norway has historically been a world leader in balancing sustainable energy policies and protection of the environment. At the start of its oil boom in the 1970s, it designed a “go slow” policy aimed to preserve independence from big oil companies, to shield the economy and reduce pollution. Meanwhile, oil revenues were channelled into a sovereign wealth fund. The supreme court will therefore have to deal with a collision between a system that aims for a gradual shift to renewables – backed by a strong oil-funded welfare system that helps provide political support – and a more radical approach aimed at stopping the exploration of Arctic oil altogether.
The case is important because it will inevitably address the complex relationship between development, renewable energy and climate change. An affirmative ruling will set a new legal path to revoking exploration licenses based on emissions from exported oil. Even if the petitioners’ claims are denied, the case is likely to influence public debate on whether oil exploration should be a thing of the past.