The fourth climate change case at the European Court of Human Rights has been announced, and it has been brought by six young Norwegian climate activists aged between 20 and 27, along with two organisations who allege that their members’ lives, health and well-being are being directly affected by the escalating climate crisis. The six individual applicants also allege that, as young people, they are being disproportionately affected by the climate crisis.
The application concerns the Norwegian State’s decision to license continuing exploration for oil and gas in new areas of the Arctic (Barents Sea), and its intention to bring new fossil fuels to market after 2035. The applicants argue that the best available science shows that the emissions from known reserves of fossil fuels will already exceed the carbon budget that remains given the 1.5°C temperature target set in the Paris Agreement.
Citing the seriousness and urgency of the climate crisis, the applicants allege that the respondent State has failed to take the precautionary measures of prevention and protection required under Articles 2 and 8 ECHR (the right to life and the right to respect for private and family life, respectively). They furthermore allege a breach of the prohibition of discrimination in Article 14 ECHR. during the domestic court proceedings, as well as a violation of the right of access to an effective domestic remedy under Article 13 ECHR.
The applicants have sought the application of the Court’s priority policy under Rule 41 of the Rules of Court. In the two already-communicated climate cases, Duarte Agostinho v. 33 Member States and Klimaseniorinnen v. Switzerland, the Court has granted the applicants’ request for priority. A third case has not yet been communicated, making this the fourth climate case pending before the ECtHR.
Domestic proceedings and the reasoning of the Norwegian Supreme Court:
This case is a follow-up from domestic proceedings that were concluded by a judgment in favour of the State that was issued by the Norwegian Supreme Court on 22 December 2020.
In 2016, the two applicant organisations brought a case against the State’s decision to grant 10 licences in the Barents Sea. On 22 December 2020, the Norwegian Supreme Court ruled that this decision did not violate the right to a healthy environment under Article 112 of the Norwegian Constitution. It also found no violation of the ECHR. While it did find that climate impacts should have been assessed, it held that this could be remedied at the development stage (after the licences in question had been issued).
The Norwegian Supreme Court considered that there had been no violation of the ECHR in this case because that Convention only applies to “direct and immediate” environmental harms. Although the Supreme Court considered Articles 2 and 8 ECHR and referred to the pending Duarte Agostinho case in its oral ruling, it considered that the case-law as it stood at the time of decision had not been contravened.
Regarding Article 2 ECHR, the Supreme Court held that this only applies to real and immediate risks of loss of life. The question before the Supreme Court, it argued, was the issue of a sufficient link between the domestic administrative decisions and the risk of a loss of life. It considered that it was not clear whether the decisions would in fact lead to emissions, and the threat concerned was in the future.
Regarding Article 8 ECHR, the Court held that this did not cover every harm to the environment, that an impact had to be “direct and immediate” also here, and that efforts by the Committee of Ministers to add a separate right to a healthy environment to the ECHR had failed.
The Supreme Court also considered that the Dutch Urgenda judgment was not comparable to the case at hand, because that case concerned already-established climate targets, and not the possible invalidity of an administrative decision.
Submissions before the Court in greater detail:
The applicants argue that there is a real and serious risk to their lives and well-being, and to their ability to enjoy their private life, family life and home. They submit that the Norwegian State has failed to adopt the necessary and appropriate measures to address this risk, and that it has failed to describe and assess the total climate effects, including exported emissions, of continued and expanded extraction of oil and gas from the Arctic, thereby also violating the applicants’ rights.
The six individual applicants submit that they have experienced climate anxiety, emotional distress and great worry about the
current and imminent risks of serious climate harms, and the impact on their lives, life choices, and the lives of future generations. They refer to mental health literature, which increasingly draws attention to such concerns, described in the application as “pre-traumatic stress.”
The applicants note that, under current climate policies, the average temperature in Norway is expected to rise by more than 5.5 degrees Celsius by 2100. There has already been an increase in extreme rainfall events, flooding and landslides. Future impacts will include increased risk of drought and forest fire-inducing thunderstorms, changes to flood systems, sea level rise and ocean acidification.
The applicants note that there is a significant difference between planned fossil fuel extraction and Norwegian climate goals. The applicants submit that State representatives stated before the Norwegian Supreme Court that Norway will continue to produce and export petroleum as long as there are buyers. They note that Norway is the 7th largest exporter of emissions in the world, and the 3rd largest per capita, behind Qatar and Kuwait. There is no system in place to declare, assess, calculate, or reduce exported emissions from fossil fuels extraction projects, nor the exported emissions from oil and gas extraction overall.
On victim status, the applicants allege that the licencing of fossil fuels extraction is too complex for individuals and young people to challenge alone. The organisations in question are not only better suited to challenge such decisions, but they also claim to represent future generations.
The applicants allege Articles 2 and 8 have been violated because of the presence of a real, immediate and serious risk to these rights, of which the State had actual or putative knowledge and regarding which it failed to adopt reasonable and appropriate preventative measures. They invoke the principle of prevention, and argue that the State must adopt a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. They argue that an unequal burden has been placed on younger generations, and those unborn. The applicants argue that the threats against their rights are ongoing since temperature increase cannot be reversed and the authorities must act immediately to prevent the harms in question.
Under Article 13, the applicants argue that the Norwegian courts did not assess the merits of the Convention claims in full and
based on ECtHR case law.
Under Article 14, they argue there are disproportionately prejudicial effects on a particular group, citing the factors of young age and the fact that two of the individual applicants are members of the indigenous Sami minority, whose traditions, land and resources are negatively impacted. Due to their age, the young applicants, it is submitted, had no opportunity to participate in the relevant decision-making while at the same time having to shoulder a heavier
burden concerning the long-term consequences of the acts and omissions in question.
15 June 2021
Suggested case citation:
ECtHR, The People v. Arctic Oil, application filed on 15 June 2021, application available at www.greenpeace.org/static/planet4-norway-stateless/2021/06/0392a3c0-people-vs.-arctic-oil-–-application-to-the-ecthr-–-for-distribution_skjult-innhold.pdf.
Link to the text of the application: click here