4. Section 112 of the Norwegian Constitution

Section 112 of the Norwegian Constitution recognises that everyone has a right to a healthy environment and an environment in which productivity and diversity are preserved. The provision further recognises that natural resources shall be utilised on the basis of a long-term perspective that safeguards these rights for posterity. To achieve this, Section 112 also stipulates that citizens have the right to information about the condition of the environment and about planned or implemented environmental interferences. In its last paragraph, the provision explicitly imposes a duty on the State to implement appropriate measures in order to achieve the aforementioned rights.

Section 112 played a central role in a 2020 climate lawsuit in which two environmental organisations contested the validity of a royal decree to grant ten petroleum exploration licenses in the southern and southeastern parts of the Barents Sea.1HR-2020-2472-P. NIM intervened with a written amicus curiae on general principles of law, available here. The Supreme Court of Norway, in its judgement provided a number of clarifications regarding the content of the provision.

With respect to the scope of application, the Supreme Court confirmed that Section 112 clearly offers protection in relation to climate change and greenhouse gas emissions (para. 147). Furthermore, the Court held that although Section 112 only applies to actions and effects occurring in Norway, it also encompasses exported emissions from Norwegian oil and gas, because Norwegian authorities can exert effective control over such emissions, and they undisputedly cause harm in Norway (paras. 149, 155 and 260).

A key point discussed in the case was determining whether – and if so, to what extent – Section 112 provides enforceable rights. The State argued that the provision exclusively sets out a non-justiciable positive duty for the State to take measures, that could be tried only through impeachement (para. 83). The Supreme Court disagreed. It held that the purpose of the provision could not be achieved if the State did not also have a negative duty to abstain from interferences (para. 143). For instance, the Court noted that Section 112 could give rise to a duty to deny production of located oil and gas “out of considerations for climate and the environment” (para. 222, 223). Furthermore, it would be “contrary to general principles of the rule of law” if the courts could not intervene against violations of the Constitution (para. 123). The State can thus be held accountable by citizens and organisations with regard to both the positive and the negative duty to preserve a healthy environment.

In matters decided by Parliament, however, the threshold for overruling is very high. Hence, decisions made by or with the consent of the Parliament, can only be overruled in the courts if there has been a serious breach of duty (para. 142). In these cases, Section 112 thus serves as a mere safety valve. To underpin the high threshold, the Court inter alia argued that fundamental environmental decisions necessitate broad political considerations and prioritisation, and that democratic values thus suggest that such decisions should be taken by elected bodies (para. 141).

As matters stood before the Court, it did not consider the implications of Section 112, first paragraph, second sentence, which states that the right to a healthy environment shall be safeguarded for future generations as well.2The exploration licences under review would not, in and of themselves, lead to significant greenhouse gas emissions. Several licenses had also been returned to the State by companies, empty-handed, because no oil and gas could be found. In cases concerning actual or foreseeable greenhouse gas emissions, it could be argued that unrestricted deference to political decision-making today, risks restricting political leeway in an intemporal sense, as rapid depletion of the finite carbon budget today would unilaterally and irreversibly offload a disproportionate burden to cut emissions on unrepresented younger and future generations, which in turn would threaten their future freedoms and potentially expose them to risks of severe climate-induced impairments of life, physical integrity and property.3See for example Neubauer et al. v. Germany, BVerfG, Order of March 24th 2021- 1 BvR 2656/18, para. 206 (German Constitutional Court), and References re Greenhouse Gas Pollution Pricing Act 2021 SCC 11, para. 206 (Supreme Court of Canada).

In environmental questions which Parliament has not decided upon, the Court clarified that Section 112 can be invoked directly. The Court acknowledged that it could be difficult in practice to decide whether Parliament has taken a stance on an environmental problem (para. 139). This leaves the door open for interpretation, in climate cases in particular. It could reasonably be argued that where legislative assessments are based on presumptions that are scientificly outdated, Parliament has not decided on the issue and has not addressed the real problem at hand. Moreover, the Court did not address the threshold for judicial scrutiny with respect to admininstrative decisions in which Parliament has not been involved.

The procedural rights set out in Section 112, second paragraph, are under full judicial scrutiny. The Court further held that the level of judicial scrutiny increases in proportion to the severity of the consequences involved (para. 183). In light of the irreversible and potentially catastrophic effects of greenhouse gas emissions and run-away climate change above 1.5 to 2 degrees Celsius, the Court’s reasoning implies high qualitative procedural requirements and intensified judicial scrutiny in cases concerning actual or foreseeable greenhouse gas emsisions. This appears to be in line with the procedural requirements posed by the Irish Supreme Court, the Dutch Supreme Court, the French Conseil d’État and the German Constitutional Court in cases on inadequate greenhouse gas emissions reduction policies.4Friends of the Irish Environment v. Ireland, [2020] IESC 49, para. 6.45 (requires specification “in some reasonable detail” of the measures to reduce emissions up to 2050); Urgenda v. the Netherlands, ECLI:NL:HR:2019:2007, para. 7.5.3 (the state had not “sufficiently substantiated” that the reduction of at least 25% by 2020 was an impossible or disproportionate burden); Commune de Grande-Synthe c. France, N° 427301, ECLI:FR:CECHR:2020:427301.20201119 (State must provide further justifications on the sufficiency of measures to reduce emissions by 40% by 2030); Neubauer et al. v. Germany, BVerfG, Order of March 24th 2021- 1 BvR 2656/18 (requires specification of emission reductions after 2030 to reach target of climate neutrality by 2050).