Clifford Chance

A Norwegian court has heard an appeal by two NGOs seeking a declaration that the Norwegian government has violated right to a healthy environment articulated in Norway's constitution.

The NGOs instigating the case have invoked Article 112, along with the Paris Agreement, as a ground for preventing further fossil fuel drilling and extraction. They argue that granting new licences for oil resource extraction in the Arctic Ocean is contrary to Norway's obligation to safeguard the right to a healthy environment for existing and future generations enshrined in Article 112.

Factual background

In October 2016, Greenpeace Nordic Association, the Scandinavian branch of the global NGO, and Nature and Youth, an environmentalist youth organisation in Norway, (the "plaintiffs") initiated proceedings against Norway Ministry of Petroleum and Energy (Greenpeace Nordic Association and Nature and Youth v. Norway Ministry of Petroleum and Energy).

The Oslo District Court found that Article 112 creates an enforceable right to a healthy environment, and acknowledged that this right includes the right to a healthy climate. However, whilst stating that the government is obliged to protect this right, the court determined the right had not been violated, in part because the government need not account for greenhouse gas ("GHG") emissions generated by Norwegian oil that will be emitted elsewhere.

On 5 November 2019, the plaintiffs appealed this decision, with a judgment from the appeal court not expected before the second half of 2020, at the earliest.
Norway is the world’s 15th largest exporter of oil, and 2nd largest exporter of natural gas. At the same time, Norway has become a global leader in certain climate change policies, including the global transition to zero emission transportation (approximately 45 percent of new passenger vehicle sales in Norway are electric), being one of the first governments to establish a carbon tax and through the usage of hydroelectricity.

Dr David Boyd, the UN Special Rapporteur for Human Rights and the Environment, stated in September 2019 that "the Norwegian paradox is that its leadership in some aspects of addressing the global climate emergency is enabled by wealth generated by a large petroleum industry".

Given this apparent paradox, it will be interesting to see how Norway will seek to meet its human rights responsibilities if the appeal court comes to a different conclusion from that of the court of first instance.

Climate change related litigation on the rise

While the outcome of this case is uncertain, Greenpeace Nordic Association is just one example of the increasing use of litigation by climate change activists. Litigants are notably grounding their petitions on constitutional duties and international agreements.

In PUSH Sverige, environmental NGOs and individual plaintiffs in Sweden challenged the sale by the State of several coal-fired power plants and associated mining assets to a privately held company, arguing that such a divestment would simply enable further exploitation and that this was a violation of the government’s duty of care to its citizens to protect their right to a non-harmful climate. The claim ultimately failed on the grounds that the plaintiffs had not experienced any injury from the government's decisions.

More recently, the landmark Urgenda case brought against the Government in the Netherlands has shown that courts are willing to recognise a state's positive duty of care to protect Dutch citizens against the imminent danger caused by climate change. Rejecting the Dutch State's appeal, on 20 December 2019 the Supreme Court confirmed that the State has a positive obligation to reduce GHG emissions by at least 25% by the end of 2020. Affirming the Court of Appeal's decision, the Supreme Court held that this obligation flows from Articles 2 and 8 of the ECHR, confirming that climate change is a human rights issue. (For our full briefing on this issue, please click here.)

Similarly, in Germany, an appeals court has allowed a claim to proceed against a corporation for the alleged climate change impacts resulting from its GHG emissions. In Lliuya v. RWE AG, a Peruvian farmer brought an action against the German electricity producer, RWE, seeking a declaratory judgment and damages. Lliuya asserted that RWE knowingly contributed to climate change through its GHG emissions, and that it was partially responsible for the melting of mountain glaciers near his town in Peru. This is a novel decision, because the court has accepted that, in theory, a private company could incur liability for climate-related damage caused by its GHG emissions. The case is currently in an evidentiary phase, and the plaintiff is likely to face challenges in proving causation and assessing quantum.
Both Greenpeace Nordic Association and RWE AG are ongoing and will be of significant interest in the ever more relevant area of climate change litigation.

Implications for corporations and businesses

As noted above, the right to a healthy environment (and a corollary duty on the state to protect it) is enshrined in the national constitutions and laws of many UN member states. These provisions are increasingly being used by climate change activists to try to address through litigation perceived government failure to tackle the global climate crisis.

Successful cases against States, and the adverse publicity that is likely to surround such cases, may place pressure on states to take action in relation to climate change. To the extent that they have not already started to do so, governments may:

• Enhance their climate-related goals and impose higher emissions standards on businesses;
• Pass legislation and regulations that prohibit certain activities; 
• Incorporate climate change and human rights as considerations in permit or planning procedures; and
• Increase disclosure requirements through business rights related to climate change. 

Any of these measures is likely to significantly increase pressure on business to take action in relation to their own climate change affecting activities.