On 21 May 2025, the EFTA Court issued a new advisory opinion in Case E-18/24. The Court clarified that, under the EU’s Environmental Impact Assessment (EIA) Directive (2011/92/EU), greenhouse gas emissions from the subsequent combustion of oil and gas must be assessed before a decision is made on extraction. The decision sets out clear obligations for the Norwegian authorities and courts under EEA law, which are also relevant to Norway’s human rights obligations with respect to climate change.
Background
The case concerns the approval of three petroleum projects on the Norwegian continental shelf – Breidablikk, Tyrving, and Yggdrasil – which were authorised without assessing greenhouse gas emissions from the future combustion of the extracted resources. The applicants, Greenpeace Nordic and Nature and Youth, have challenged the approvals, arguing among other things that they violate the Norwegian Constitution, international human rights law, as well as EU environmental law that applies to Norway under the Agreement on the European Economic Area (EEA).
The case was originally heard in the Oslo District Court, which decided in favour of the applicants. The State appealed to the Borgarting Court of Appeal, which then referred several questions concerning the EIA Directive to the EFTA Court for clarification. Part of the case concerning a temporary ban on oil development and production in those three projects was appealed to the Supreme Court, which decided that the Court of Appeal had misinterpreted the law when it overturned the temporary injunction and sent this question back for reconsideration. The Borgarting Court of Appeal will now hear the case again in September 2025.
The EFTA Court is responsible for interpreting how EEA law applies to the three EEA States who are also members of the European Free Trade Association (EFTA): Norway, Iceland and Liechtenstein. Under Article 34 of the Surveillance and Court (SCA) Agreement, national courts in these states can ask the EFTA Court for an advisory opinion. These opinions are not binding but they are treated as authoritative, and in practice Norwegian courts give considerable weight to EFTA Court opinions.
Key findings of the Court
Combustion emissions must be assessed
A common argument raised in climate cases is that states or companies that extract fossil fuels are only responsible for assessing the production emissions that occur within their borders or direct operations, and not the downstream emissions resulting from the eventual combustion of those fossil fuels by third parties after export.
The Court rejected this argument and held that emissions from the subsequent combustion of fossil fuels extracted by the project are significant indirect environmental effects that must be included in the impact assessment. This assessment must take place at the earliest stage possible before decisions regarding extraction of the fossil fuels are taken to ensure effective public participation and access to essential environmental information.
See paras. 80-93 of the judgment.
Market substitution or net emissions arguments rejected
Another common argument in climate cases is that if one state or company decides not to extract and sell fossil fuels, the global market will simply replace that supply with fossil fuels from somewhere else, so the net effect on global emissions will be negligible or even worse.
These so-called “market substitution” or “net emissions” arguments were rejected by the Court as hypothetical and speculative. According to the Court, the relevant test is whether that specific project itself will have likely significant effects on the climate, without regard to analyses of potential knock-on effects on other projects elsewhere.
See paras. 94-98 of the judgment.
Unlawful production licences must be remedied
If a project is approved without a lawful impact assessment, including an assessment of combustion emissions, national authorities and courts must take all measures necessary, within their spheres of competence, to remedy its unlawful effects, for example by revoking or suspending consent already granted.
The Court rejected any suggestion that a fossil fuel production licence can stand because an assessment of combustion emissions would not have affected the outcome. However, it also clarified that EEA law does not preclude states from conducting such an assessment while the project is underway or even after it has been completed, provided the assessment takes into account both past and future impacts and the rules allowing for this cannot be used as a loophole to circumvent EEA law.
See paras. 100-116 of the judgment.
Environmental principles and human rights
In interpreting the provisions of the EIA Directive, the Court refers to the broader environmental objectives and principles set out in Article 73 (1) and (2) of the EEA, notably the principles of preventive action, that environmental damage should be rectified at the source, and that the polluter should pay. This makes it clear that all EEA rules on the environment must be interpreted in a manner which effectively furthers these wider EEA objectives.
It is also notable that the Court recalls, generally, that “combating climate change is an objective of fundamental importance given its adverse effects and the severity of its consequences, including the grave risk of their irreversibility and its impact on fundamental rights”. This is a statement from the Court’s previous case, E-12/23, Norwegian Air Shuttle, para 35, which further cites the Verein KlimaSeniorinnen and Others v. Switzerland case from the ECtHR. This statement by the Court ties EEA law to human rights law and could be a recognition that human rights obligations under EEA law also require states to protect individuals from the consequences of dangerous climate change.
See, in particular, paras. 50, 66, 67, og 90.
Implications for human rights in Norway
While the advisory opinion from the EFTA Court concerns the interpretation of a specific directive under EEA law, it addresses many of the same factual and legal questions that arise under human rights law. In particular, the Court’s findings regarding combustion emissions and market substitution are highly relevant to the interpretation of ECHR Articles 2 and 8 in Greenpeace Nordic and Others v. Norway (34068/21) which is currently pending before the European Court of Human Rights (ECtHR).
The EFTA Court’s judgment is consistent with the views NIM has raised with authorities since 2022, including in advice to the Ministry of Petroleum and Energy concerning obligations under Section 112 of the Constitution and in NIM’s third party intervention (together with ENNHRI) to the ECtHR in Greenpeace Nordic and Others v. Norway (34068/21).