HAVET & VANHUFFEL – Association d’avocats
Case Background
The case concerns the procedural aspect of the State’s duty to effectively protect individuals from serious adverse effects of climate change on their life, health, well-being, and quality of life. The applicants primarily raised issues under Article 8 of the Convention, arguing that the decision-making process regarding the environmental impact assessment during the petroleum exploration licensing procedure preceding oil production was flawed.
On 10 June 2016, the Ministry granted ten petroleum production licenses on the Norwegian continental shelf under Article 3‑3 of the Norwegian Petroleum Act. Seven of these licenses (fourteen blocks) concerned “mature” areas in the southern Barents Sea, while three licenses (twenty-six blocks) concerned “immature” areas in the southeastern Barents Sea. The licensees were thirteen private companies.
By December 2020, seven exploration wells had been drilled in the 23rd licensing round: three in the southern Barents Sea and four in the southeastern Barents Sea. All licenses were subsequently relinquished, as no commercially viable gas discoveries were made.
A new production license, No. 1170, was issued and valid until 11 March 2030. It led to the discovery of two significant gas fields. One of these, the “Wisting” field, constitutes the largest undeveloped oil discovery on the Norwegian continental shelf, with estimated volumes of approximately 440 million barrels of oil equivalent.
Both wells were plugged and abandoned after evaluation, but the discovery remains valid and available for exploitation, either by drilling new appraisal wells or by connecting to other infrastructure.
On 18 October 2016, the two applicant organizations filed for judicial review of the validity of the 10 June 2016 decision granting the production licenses issued in the 23rd licensing round. The organizations argued that the decision violated Article 112 of the Norwegian Constitution, which guarantees the right to a healthy environment, and that the licenses in the southeastern Barents Sea were invalid due to various procedural defects.
On 4 January 2018, the Oslo City Court upheld the contested 10 June 2016 decision.
Documents submitted by the applicants and publicly available information confirm that, on 11 March 2022, Norway renewed the production license for the southern Barents Sea area, partially covered by one of the contested production licenses, under the “pre-agreement exploitation scheme” for mature areas, following the relinquishment of the initial license. Several appeals were filed against the City Court decision, and the Supreme Court of Norway examined whether the assessment of the likely climate effects of opening the southeastern Barents Sea to potential future petroleum activities was insufficient, given the lack of specific reference to downstream emissions from the combustion of exported Norwegian oil and gas.
The Court observed that any petroleum extraction following the granting of a license in the 23rd licensing round would occur no earlier than 2030, seventeen years after the decision to open the area and fourteen years after the decision to grant the production licenses. The Court concluded that, given the uncertainty as to the presence of oil and the exploitable quantity, the most appropriate time to evaluate the specific overall climate impact of petroleum extraction would be when a petroleum development and operation plan (PDO) could be approved. The Court also noted that no significant overall environmental consequence would arise from opening the area for exploration or during exploration itself: no significant emissions would occur before commercially viable discoveries, submission of an application, and granting of development and production licenses.
An impact assessment, including greenhouse gas emissions, should normally be conducted at the PDO application stage, and the Ministry may refuse to approve the PDO or attach conditions to its approval.
The Supreme Court concluded that, although calculating the net impact of Norwegian oil and gas exports on global emissions is complex and controversial, this issue had been thoroughly considered at the stage of opening the southeastern Barents Sea for exploration. The omission of specific examples of greenhouse gas emissions based on one or more production volumes in the impact assessment did not constitute a relevant procedural error either for the opening of the southeastern Barents Sea or for the 23rd round production licenses, and did not invalidate them.
The Supreme Court further held that no procedural error had been committed regarding climate effects in the impact assessment for opening the southeastern Barents Sea, as climate effects were continuously considered at the political level and would be included in the environmental impact assessment for any future PDO. Consequently, the decision to grant production licenses in the 23rd licensing round in 2016 remained valid.
Arguments Raised by the Applicants
The applicants argued that the 10 June 2016 decision granting ten petroleum production licenses on the Norwegian continental shelf violated Norway’s obligation to mitigate anthropogenic climate change, which adversely affected the life, living conditions, and health of the applicants and others represented by the applicant organizations, relying on Articles 2 (right to life) and 8 (right to respect for private and family life) of the Convention. Alleged violations of Articles 13 (right to an effective remedy) and 14 (prohibition of discrimination) were also raised.
Admissibility
Regarding admissibility, the Court held that applicants must demonstrate sufficient link between the contested decision and the serious consequences of climate change on life, health, well-being, and quality of life. Applying the criteria in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the Court concluded that the individual applicants did not qualify as victims. However, the applicant organizations met the relevant criteria and were entitled to act on behalf of their members and/or other persons affected by the contested administrative act.
Merits – Articles 2 and 8 of the Convention
Concerning the alleged violation of Article 8, the Court reaffirmed that the State’s obligation is to ensure effective protection by the authorities of persons within its jurisdiction against serious adverse effects on life, health, well-being, and quality of life resulting from climate change. The State must adopt and effectively implement measures to mitigate existing and potentially irreversible future effects of climate change. This obligation arises from the causal link between climate change and the enjoyment of Convention rights, and the object and purpose of the Convention, which require rights to be practical and effective, not theoretical or illusory.
The Court reaffirmed that States have a wide margin of appreciation in choosing the means to implement their climate obligations, including operational choices and policy adoption to meet internationally agreed climate targets, taking into account the State’s priorities and resources. At the same time, the Court considered scientific evidence on the consequences of climate change, its urgency, the severity of potentially irreversible impacts, and the recognized link between climate change and human rights. The Court emphasized that climate protection carries considerable weight, given the risks and States’ historically insufficient action, as confirmed by the IPCC.
Applying these principles to the present case, the Court examined whether the 10 June 2016 petroleum exploration licensing process in the southern and southeastern Barents Sea complied with Norway’s procedural obligations. Under the Court’s case law, a State must conduct a comprehensive environmental impact assessment prior to authorizing potentially hazardous activities, based on the best available scientific data, including:
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Quantification of greenhouse gas emissions, including combustion emissions abroad;
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Assessment of compatibility with national and international climate obligations;
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Effective public consultation while all options remain open.
Other international courts (International Tribunal for the Law of the Sea, Inter-American Court of Human Rights, EFTA Court, International Court of Justice) have recognized the same procedural obligation.
Concerning Norway, the Court noted that:
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Norway has ratified key climate agreements and established a detailed national legal framework;
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The Norwegian process includes three stages:
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Opening an area to exploration (strategic environmental assessment and public consultation);
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Granting exploration licenses (no mandatory assessment);
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Development and production plan (PDO) for extraction (with environmental assessment and consultation, sometimes waived).
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Applicants challenged the lack of a complete climate assessment at the licensing stage (10 June 2016) and the deferral to the PDO stage, fearing delay or weakening of protection. The Court acknowledged that the 2016 initial assessment was incomplete, with certain climate aspects deferred.
However, it observed that:
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No company may extract without PDO authorization, which must include a full climate assessment;
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The Supreme Court of Norway reaffirmed the constitutional obligation to refuse any PDO incompatible with climate protection;
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Legal and jurisprudential guarantees (EFTA, Norwegian Government) ensure that climate effects, including combustion emissions, will be assessed before any extraction.
The European Court of Human Rights concluded that the Norwegian procedure, as a whole, ensures an adequate and transparent assessment of climate impacts before any petroleum extraction, and affected individuals or NGOs may challenge these decisions in court. Consequently, there was no violation of Article 8 of the Convention.
Articles 13 and 14 of the Convention
Regarding Articles 13 and 14, the applicants argued that Norway’s climate policy and the licensing decision violated Article 14 (prohibition of discrimination), disproportionately affecting young generations and the Sámi population, without allowing participation in decision-making.
The Court found these complaints inadmissible because they had not been raised before domestic courts. Discrimination arguments had never been submitted substantively at the national level. The applicants therefore failed to exhaust domestic remedies, rendering the complaint inadmissible under Article 35 §§ 1 and 4.
The applicants also alleged a violation of Article 13 (right to an effective remedy), claiming that domestic courts had examined their case superficially. The Court rejected this argument: national courts had considered in detail their claims under Articles 2 and 8, and the fact that their conclusions differ from those of the ECHR does not mean that an effective remedy was lacking.
The judgment is aviable via de following link: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-245561%22]}.