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Greenpeace Nordic and Nature & Youth v. Energy Ministry (The North Sea Fields Case) - decision

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Sabin Litigation

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Greenpeace Nordic and Nature & Youth v. Energy Ministry (The North Sea Fields Case) - judgment

summons

Greenpeace Nordic and Nature & Youth v. Energy Ministry (The North Sea Fields Case) - summons

Filing Year For Action

On June 29, 2023, two environmental NGOs, Greenpeace Nordic and Natural og Ungdom (Nature & Youth), challenged three administrative decisions whereby the Norwegian Energy Ministry approved the plan for the development and operation of the oil and gas fields of Breidablikk, Yggdrasil, and Tyrving in the North Sea. The three fields in question have been subject to impact assessments by the companies that are operators and licensees for the fields. However, these impact assessments do not include combustion (Scope 3) emissions from the oil and gas produced.

In the absence of administrative or specialized environmental courts in the Norwegian legal system, the lawsuit occurred in a civil court. The plaintiffs based their challenge on various legal grounds, including Section 4-2, second paragraph, of the Petroleum Act, alongside Section 22a of the Petroleum Regulations. The interpretation of these statutes was guided by Article 112 of the Norwegian Constitution, emphasizing the right to a healthy environment. Additionally, the challenge was grounded in compliance with the EU Directive on Environmental Impact Assessments (EIA Directive). The plaintiffs also invoked legal sources such as Articles 2 and 8 of the European Convention on Human Rights (ECHR), on the right to life and right to respect for private life and family life and home, respectively, both independently and in conjunction with Article 14 of the ECHR, prohibiting discrimination. Furthermore, the challenge drew support from Section 104, second paragraph, of the Norwegian Constitution, which focuses on the dignity rights of children and the obligation to incorporate their best interests, and Article 3 of the UN Convention on the Rights of the Child, on the best interests of the child. Further legal theories encompass Norway's Nature Diversity Act and Public Administration Act.

Essentially, the plaintiffs argued that the assessment of Scope 3 emissions should have been conducted before issuing the three administrative decisions. In contrast, the Ministry of Petroleum and Energy, now the Ministry of Energy, asserted that a general-level assessment of Scope 3 emissions by the Ministry sufficed and that there was no explicit requirement for this assessment to be integrated into the specific impact assessments for the Breidablikk, Yggdrasil, and Tyrving fields.

On January 18, 2024, the Oslo District Court concluded that all three decisions were unlawful. There is a legal requirement that Scope 3 emissions must be subject to an impact assessment pursuant to Section 4-2 of the Petroleum Act and Section 22a of the Petroleum Regulations, interpreted in light of Article 112 of the Norwegian Constitution (on the right to a healthy environment). This also follows from Article 4 no. 1 of the EU EIA Directive, Article 3 no. 1. Conversely, for the three challenged administrative decisions, no impact assessment of Scope 3 emissions had been carried out, contrary to the Norwegian Supreme Court's ruling in the <a href="https://climatecasechart.com/non-us-case/greenpeace-nordic-assn-and-nature-youth-v-norway-ministry-of-petroleum-and-energy/#:~:text=The%20Oslo%20District%20Court%20ruled,before%20making%20the%20licensing%20decision">first Norwegian Climate Case</a>. By referring to the mentioned Supreme Court's decision, the Oslo District Court asserted that the greater the consequences of a measure under review, the stricter the EIA requirements. Similarly, the greater the consequences of a measure, the more thorough the court's procedural review must be. For petroleum activities, courts should not be reluctant to review cases on procedural grounds, in this case, the EIA (p. 27). Differently from the first Norwegian Case, where the challenged decision sprang from a Parliament's resolution, the challenged decisions are of the Ministry's competence, yielding to more judicial scrutiny. In connection to such scrutiny, the Court cited the IPCC AR6, comparative case law, and expert opinions heard during the case hearing.

Further, the Court concluded that there is no legal obligation to consider the best interests of children in connection with each individual decision on a plan for development and operation (PDO) of petroleum activities. The Court, therefore, concluded that the decisions are not contrary to section 104 of the Norwegian Constitution and Articles 3 and 12 of the UN Convention on the Rights of the Child. The Court concluded that the decisions are not contrary to Articles 2, 8, and 14 of the European Convention on Human Rights (ECHR), pending a challenge to the mentioned Supreme Court's decision <a href="https://climatecasechart.com/non-us-case/greenpeace-nordic-assn-v-ministry-of-petroleum-and-energy-ecthr/">before the ECtHR</a>. Remarking on remedies, the application for a temporary injunction was granted in that the state is prohibited from adopting other decisions that require valid PDO approval for Breidablikk, Yggdrasil and Tyrving until the validity of the decisions has been finally decided. The state, represented by the Ministry of Petroleum and Energy, was ordered to reimburse the plaintiffs' legal costs in connection with the case (NOK 3 260 427, circa USD 309,833.49- incl. VAT in compensation for legal costs to the plaintiffs). In addition, the court's fee will be included. 

On May 16, 2024, the Appeals Court in Oslo (Borgarting lagmannsrett) decided to bifurcate the case. The State's appeal against the Oslo District Court's ruling in the injunction case of January 18, 2024, will be heard during the Court of Appeal's appeal hearing concerning the main case, but the right to enforce the District Court's temporary injunction is suspended until the Court of Appeal has ruled on the appeal against the District Court's ruling.

In its judgment from October 14, 2024, the Oslo Court of Appeals reversed the interim injunction. By referring to a report by Rystad Energy, commissioned by the Ministry of Energy, it argued that increased production from the Norwegian continental shelf could reduce global greenhouse gas emissions. The court also mentioned the complex interplay of economic and societal factors, including lost tax revenue, potential losses for companies and shareholders, job losses, reduced investor confidence in the Norwegian shelf, and implications for European energy supply and security. Except for an argument about risks to the sand eel population, the appellants' claims were showcased as unrelated to the fields but rather constituting a broader challenge to Norwegian petroleum activities, which the court noted should first be assessed by the Norwegian Parliament and government, not by the courts. The court denied that the principle of effectiveness of EEA (EIA) law and the KlimaSeniorinnen judgment by the ECHR could offer counterarguments to the denial. 

In April 2025, the Supreme Court of Norway reversed the appellate decision and remanded the case to the Oslo Court of Appeal. The Supreme Court held that the EEA law principle of effectiveness—and the related principle of effective protection of EEA rights—requires Norwegian courts to grant temporary measures if it is established, or made probable, that breaches of the EU’s Project Directive have resulted in inadequate impact assessments leading to irreversible environmental harm. In such cases, the state has a duty to halt the consequences of these EEA violations, provided that the court finds it probable that the directive has been breached and the general conditions for issuing a temporary measure are otherwise satisfied.

Conversely, the Supreme Court maintained that the Oslo Court of Appeal found that it lacked the authority to grant such a measure and therefore did not conduct a substantive assessment. In the new hearing on the request for a temporary measure, the Court of Appeal must assess whether the basic conditions—main claim, legal grounds, and proportionality—are met, but the proportionality assessment under § 34-1(2) of the Dispute Act is a specific judicial evaluation and cannot be based on the idea that courts have limited authority. If it is made probable that the EU’s Project Directive has been violated and the other legal conditions are met, then the discretionary authority provided in § 34-1(1) of the Dispute Act must be exercised to grant a temporary measure. Under the Dispute Act, the state must cover the appellants’ legal costs, a total of NOK 1,322,516 for the Supreme Court proceedings.

Greenpeace Nordic and Nature & Youth v. Energy Ministry (The North Sea Fields Case)