By Dana Drugmand
In arguing against a lawsuit pushing for the invalidation of its oil leases in the Arctic, the Norwegian government defended the continued oil exploration, saying it is not responsible for the emissions created when that oil is burned elsewhere.
The government made that argument in an appellate court to counter a lawsuit by two environmental organizations, Greenpeace Norway and Nature and Youth. After the district court dismissed the suit last year, the organizations’ appeal came before the appellate court in Oslo in hearings that started last week and concluded on Thursday. The case now awaits a written judgment, which could come by the end of the year. At issue is whether Norway’s granting of deep-sea oil licenses exacerbates the climate crisis and constitutes a violation of Article 112 of the Norwegian constitution that provides a right to a healthy environment.
As the appeal was being heard, the International Energy Agency issued a warning that current climate policies are inadequate to stave off dangerous warming and that “governments hold the clearest responsibility to act.”
Norway walks a fine line, as the appeal highlighted, between understanding the urgency needed to rein in global greenhouse gas emissions and its economy’s heavy reliance on oil and gas drilling. Norway is the seventh-largest exporter of petroleum worldwide with more than $20 billion in petroleum revenue annually. Norway’s Attorney General Fredrik Sejersted did not dispute the seriousness of the climate crisis, but called the lawsuit an “attack on Norway’s most important industry.”
The country has very strong domestic climate policy, including its recent decision to divest the Government Pension Fund from companies involved in oil and gas exploration. It has the highest share of electric cars in the world (7.9 percent) and nearly half the cars sold in 2018 were electric. It has a goal of reducing emissions 80-95 percent below 1990 levels by 2050.
But the government argued in the appeal that it has no responsibility for emissions created by oil after it is exported. Sejersted said the world “needs oil and gas in the future” and pointed to robust gas demand in Europe. He argued Norway has no responsibility for emissions in other countries, even if the emissions come from petroleum produced within Norwegian territory.
Climate scientist Bjørn Samset testified last week that the country cannot have it both ways. Samset, senior scientist at the Center for International Climate Research, explained that the world cannot stay within a safe carbon budget if all of its fossil fuel reserves are burned. Current pledges by countries to reduce emissions under the Paris Agreement would lead to 3-3.5 degrees C of warming, Samset said.
The government attorney nonetheless argued that Norway’s petroleum licensing is not a violation of the Paris Agreement. He said Norway has been a leading advocate of the agreement and intends to continue to work towards its goals. Lawyers for the environmental organizations told the court in their opening statement said Norway’s climate commitments are not enough. “To ignore that Norwegian oil production leads to emissions globally is to pretend that the climate crisis does not exist,” they said.
The government also claimed the licensing does not violate the environmental rights provision of the Norwegian constitution nor provisions under the European Convention on Human Rights. The attorney general Sejersted said Article 112 under the constitution was never meant to limit exports of Norwegian petroleum and that climate issues like fossil fuel supply do not apply to the provision. The environmental rights provision is more a statement of principle rather than a concrete right, he argued.
Sejersted also attacked the decision in the Urgenda climate lawsuit, which found the Dutch government violated citizens’ human rights under the Human Rights Convention by failing to reduce emissions. Sejersted said the convention applies to individual, not collective, rights and that individuals can sue for violations but not organizations. He also said that climate lawsuits are about potential victims and harm in the future, beyond what courts traditionally recognize.
The environmental groups argued the impacts are happening already. “Youth are genuinely concerned about the climate crisis and it affects our mental health,” Nature and Youth leader Gaute Eiterjord said. “We cannot sleep at night because we feel that our constitutional right to a healthy environment is not respected.”
UN special rapporteur on the environment and human rights, David Boyd, has said that Norway must curtail its oil production if it wants to protect human rights. “Norway continues to explore for oil and gas at a time when the International Energy Agency and the Intergovernmental Panel on Climate Change concluded that meeting the vital 1.5C target in the Paris agreement requires that the majority of existing fossil fuel reserves cannot be burned,” he wrote in a recent op-ed. “There is no doubt that major oil producers like Norway are fuelling the global climate emergency and contributing to a wide range of human rights violations across the planet.”
Sejersted expressed concern that Norway could be held legally accountable for these violations if the court rules in favor of the environmental organizations. He said the government could be subject to claims from many countries harmed by climate change, such as small island nations that are disappearing. This litigation risk, he said, “would be very unpredictable.”
Richard J. Harvey, legal counsel for Greenpeace International who attended the hearing in Oslo, said the government’s position was a case of “climate schizophrenia.” Harvey pointed to a UN report last year that warned “we have about 10 years left to turn this tanker around,” to avoid catastrophic levels of warming.
Harvey added that climate lawsuits are about increasing pressure on the institutions that can make the most change. “All of these cases are step by step forcing both governments and corporations to rethink their approach,” he said.