What the case is about
In 2016, the Norwegian government awarded ten new oil production licences in vulnerable natural areas in the Arctic as part of the 23rd licensing round. On that basis, Greenpeace Nordic, Nature and Youth, the Norwegian Grandparents Climate Campaign and Friends of the Earth Norway commenced a case in the Oslo District Court concerning the validity of the permits. The case went through three rounds of hearings in the Norwegian legal system between 2016 and 2020. The Norwegian Supreme Court handed down its judgment on 22 December 2020, and the environmental organisations lost the case. Greenpeace Nordic, Nature and Youth and six young climate activists then sent a formal complaint to the ECtHR in Strasbourg. On 16 December 2021, the ECtHR communicated the case to the parties and on 28 October this year, issued a judgment (Greenpeace Nordic and others v. Norway).
What does the judgment say?
In short, the State was acquitted of violating Article 8 of the ECHR on the right to respect for private and family life. In the 98-page judgment, the Court further clarifies a number of important human rights obligations when it comes to assessing the climate impacts of oil and gas extraction.
Read the full judgment from the ECtHR here.
Procedural issues – victim status and standing
The individual applicants in the case, six young climate activists, were not granted victim status because they did not meet the strict test set out in Klimaseniorinnen et al. v. Switzerland regarding:
- a high intensity of exposure to the adverse effects of climate change; and
- a pressing need to ensure the applicant’s individual protection, owing to inadequate adaptation measures to reduce harm.
However, the organisations Nature and Youth and Greenpeace Nordic were granted standing in the case. This was because they met the following three criteria set out in Klimaseniorinnen:
- the organisation is lawfully established and has standing in Norway;
- one of its purposes is to defend the human rights of its members and/or other affected individuals against threats from climate change; and
- The organisation is genuinely qualified to act on behalf of and to represent individuals who may arguably claim they are exposed to climate-related harms.
In Klimaseniorinnen, the ECtHR emphasised membership and representativeness as factors in the assessment of standing for associations, but the present judgment establishes that organisations do not have to be member-based in order to meet these criteria.
See relevant paragraphs: 301-312
States’ climate commitments also apply to petroleum licences
The Court notes that the KlimaSeniorinnen decision clarified that states are obliged under Article 8 of the ECHR to protect individuals within their jurisdiction from the consequences of dangerous climate change.
In Greenpeace Nordic and Others v. Norway, the Court states that these obligations also apply to petroleum licences. The reason is that licences generally lead to fossil fuel production – which is both the most important source of emissions attributable to Norway and the main cause of climate change globally. On this basis, the Court finds that there is a “sufficiently close link” between petroleum licences and the risk that climate change will affect individuals’ rights under Article 8 of the ECHR.
The practical implication is that the ECtHR extends the responsibility established in KlimaSeniorinnen (which applied to territorial emissions) to also apply to combustion emissions – i.e. emissions from the export of petroleum.
See relevant paragraphs: 291–300
See our analysis of KlimaSeniorinnen here.
States are obliged to carry out impact assessments of petroleum licences
According to the Court, states must ensure that “an adequate, timely and comprehensive environmental impact assessment in good faith and based on the best available science” is carried out before approving projects that could lead to climate change and thus consequences for human rights. This includes petroleum projects.
The ECtHR notes that this is consistent with the views of a number of other courts that have established similar procedural requirements, including ITLOS, IACtHR, the EFTA Court and the ICJ.
See relevant paragraphs: 317–325
See our article about the EFTA Court’s decision here.
See our article on the ICJ Advisory Opinion here (in Norwegian only).
The impact assessment can be carried out at the PDO stage, but the assessment must meet certain requirements
The Court expresses scepticism about the Norwegian approach of postponing the assessment of climate and environmental impacts to later stages of the licensing process. The Court nevertheless finds that the Norwegian system is acceptable, and points out in particular that the Norwegian Supreme Court has established an obligation on the State to refuse approval of a project also at the PDO stage (Plan for Development and Operation) based on its climate and environmental impacts. Furthermore, it refers to the EFTA Court’s clarification that national courts may have to declare the PDO invalid if the climate consequences have not been assessed.
NIM largely recommended the same in our report from 2022.
See relevant paragraphs: 325–335.
Content requirements for impact assessments
The Court does not go into detail about the content of the impact assessments or the Norwegian regulations on this point, but nevertheless establishes some overarching requirements.
According to the ECtHR, the assessments must, as a minimum, include an estimate of both production and combustion emissions, and whether these emissions are in line with states’ climate commitments under national and international law. In addition, there must be informed public consultation at a time when all potential outcomes are still open and emissions can be prevented.
In its reasoning as to why Norway has not violated Article 8, the Court notes that the EU’s EIA Directive requires that the cumulative emissions from Norwegian projects be considered as a whole, not just the emissions from individual projects.
In its report from 2022 and in subsequent advice, NIM has made similar recommendations related to cumulative emissions and assessing whether these are compatible with international climate commitments, especially the Paris Agreement’s 1.5-degree target.
See relevant paragraphs: 318, 319, 336.
See NIM’s report on section 112 of the Constitution and impact assessments here (in Norwegian only).
See NIM’s submission on adjustments to case processing for combustion emissions (in Norwegian only).
See NIM’s input to the technical report on combustion emissions (in Norwegian only).
What is the significance of the case?
Prior to this decision, there was uncertainty as to whether states have human rights obligations related to combustion emissions from exported oil and gas. In KlimaSeniorinnen, the ECtHR suggested that this could be the case, but now there is a clear confirmation.
For the first time, the Court clarifies that the ECHR sets certain legal limits for the production of fossil fuels, particularly in relation to impact assessments. The decision builds on a growing body of case law from other international courts. This underlines that the various branches of international law are increasingly converging in this field and states’ obligations under climate and human rights law cannot be seen in isolation.
The decision may have an impact on both future and ongoing court cases, particularly with regard to requirements for impact assessments for petroleum licences.
A particular question that the Court does not fully clarify is when and under what circumstances states are legally obligated to refuse or revoke oil and gas licenses.
NIM’s work on this case
NIM made a third-party submission in the domestic proceedings when the case was under consideration by the Norwegian Supreme Court.
Read NIM’s submission to the Supreme Court here.
When the case was under consideration by the ECtHR, NIM made a third-party intervention together with ENNHRI (the European Association of National Human Rights Institutions and its 51 members).