The Climate Judgment of the Norwegian Supreme Court: Aligning the Law with Politics

Abstract

The Norwegian Supreme Court rendered its judgment on 22 December 2020 in its first “climate case”. The Court rejected the claim put forward by several environmental NGOs that petroleum licenses issued by the Norwegian government violate Article 112, paragraph 1, of the Norwegian Constitution which states that “Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.”

The case provided a unique and timely possibility for the Supreme Court to establish the substantive content of that provision in the light of the global challenge of climate change. Yet, the court decided not to. It found that the constitutional provision applies only in very limited circumstances as a substantive limit to governmental action (or inaction). Foregoing an opportunity to give guidance and content to a “right to a healthy environment”, the court pronounced a backward-looking judgment which was criticized as a “gust from the past”. Issued only 40 days after the hearings, its main purpose appears to hurriedly aligning the law with the politics of continuous, unfettered petroleum extraction. Opponents of the case had argued that asking the Supreme Court to rule on the legality of petroleum licenses, is trespassing the realm of politics, and is not a matter of law. Yet, by aligning the legal content of the Constitution with prevailing politics, the Supreme Court ultimately rendered a highly political decision.

This article will first briefly set out the scientific and political background against which the current trend of climate litigation takes place. It then moves on to the facts of the case, describes its journey through the Norwegian judicial system, and presents and reflects over the judgment by the Supreme Court of Norway.

Keywords: climate change, Norwegian Constitution, Paris Agreement, right to a healthy environment, litigation

JEL Classification: K32, K41