(THIS ARTICLE IS MACHINE TRANSLATED by Google from Norwegian)
Section 112 of the Constitution reads as follows: “Everyone has the right to an environment that ensures health, and to a nature where productivity and diversity are preserved. Nature's resources must be allocated on the basis of a long-term and comprehensive consideration that safeguards this right also for the family. Citizens are entitled to knowledge about the state of the natural environment and about the effects of planned and implemented interventions in nature, so that they can safeguard the right they have under the previous paragraph. The State authorities shall take measures that implement these principles. "
The first question in the case, which the district court ruled in the plaintiffs' favor, was whether the first paragraph establishes individual rights for everyone and is not merely a kind of non-binding declaration of purpose as the government claims. However, our gain in this matter was of little value because the District Court, in its subsequent justification, effectively eliminated the meaning of § 112, at least in climate matters. This basically justified the district court as follows:
1) The case directly concerns the validity of the government's decision in June 2016 on the distribution of 10 production permits for 40 blocks. It is only national emissions from activities under these few permits that are relevant in the assessment under § 112, and these emissions are entirely marginal or insignificant in relation to total Norwegian emissions and emissions from the petroleum sector.
2) Emissions in other countries through the burning of petroleum Norway offers and exports, which are many times higher than the national ones, are not relevant under § 112 because, the district court says, it is not possible for the state to fulfill its obligation to take measures under the third paragraph. to mitigate the harmful effects of these emissions. This means that as long as the government cannot implement such measures, it is free to make decisions that are harmful to the climate.
The district court's decision is deeply problematic.
3) The District Court's reasoning completely ignores the historical and future context in which the decision was made. Norway has produced petroleum for around 50 years and thus contributed, not insignificantly, to today's precarious situation. Nevertheless, the court finds it obvious that the government has a room for maneuver for every new decision that is made
- the adverse effects of the decision must exceed a certain threshold before the rights under §112 can be invoked.
It is also irrelevant that the decision is the first in a large-scale project for the extraction of petroleum resources in the Barents Sea. Prime Minister Erna Solberg has explicitly emphasized that the melting of the ice in the Arctic means positive opportunities for Norwegian petroleum production and shipping. A new similar licensing round has already been announced.
In reality, the district court's reasoning means that the government is invited to limit the scope of any decision to clear §112 – in other words, the provision does not protect us from significant climate damage as long as it happens bit by bit.
4) The district court ruled that the state had not breached its obligation under the third paragraph to take measures to mitigate the harmful effects of decisions that intervene in the rights under the first paragraph. This duty, says the district court, consists in reducing the effect so that it does not exceed the state's discretion. Given this scope of action and the adverse effect being considered as insignificant, the court must be understood as not having violated the rights, with the obvious consequence that no mitigation measures are necessary.
The District Court nevertheless considered that the State nevertheless fulfilled its duty under the third paragraph of the general measures taken with a view to limiting negative climate effects, such as CO2 tax, participation in quota schemes and so forth, and without rejecting the plaintiffs' arguments that these measures is not intended to mitigate the negative effects of concrete decisions, but has all climate-
harmful emissions to the eye and furthermore, it is far from reducing these emissions as it is intended to achieve the goal of maximum 1,5 degree temperature rise above pre-industrial level.
In my opinion, it is unsustainable to construct some kind of context in § 112 which means that the general CO2 mitigation measures will always outweigh the detrimental effect of a limited concrete decision, although these measures are completely insufficient to reduce total Norwegian emissions in necessary degree.
The district court's decision is deeply problematic, not least by consistently violating the precautionary principle, which, among other things by emphasizing the consideration of the genealogy, is a key element of §112. In the debate on the climate law case, Espen Barth Eide expressed that Section 112 was seriously intended by the Storting. This does not seem to agree with the Oslo District Court.
