Dispute resolution | An eventful couple of weeks for climate change litigation

The Swiss parliament has effectively voted to ignore the ECtHR’s ruling in KlimaSeniorinnen v. Switzerland 

In our most recent edition of BAHR Dispute Resolution Insight, we discussed the momentum climate change litigation has gained in recent years and highlighted some significant cases such as the ECtHR’s landmark decision on 9 April 2024 in KlimaSeniorinnen v. Switzerland. A group of senior women from Switzerland successfully argued that Article 8 of the European Convention on Human Rights (ECHR) includes the right to effective protection from the serious and adverse effects of climate change on individuals’ life and well-being, and the ECtHR found that Switzerland was in breach of its obligations due to inadequate climate change responses. We have further explained the judgment in this newsletter.

From a Norwegian perspective, KlimaSeniorinnen v. Switzerland is particularly interesting as we are awaiting proceedings before the ECtHR in a Norwegian climate change case that was decided by the Norwegian Supreme Court in 2020 (Greenpeace Nordic v. Norway) and which has gained a lot of attention. The Supreme Court upheld the issuance of new licences for oil and gas production, based on the uncertainty of future emissions that will result from the extraction of hydrocarbons from the impacted fields. An application against Norway for ECHR violations was filed before the ECtHR in 2021, which categorized the case as a potential “impact case” and put it on hold pending the resolution of KlimaSeniorinnen v. Switzerland. There is some speculation that the precedent set by KlimaSeniorinnen v. Switzerland could suggest that Norway is violating its climate obligations and ECHR Article 8 due to its climate policies. However, it is challenging to predict what impact – if any – this precedent will have on the Norwegian case before the ECtHR because the two cases are not directly linked. The Swiss case addresses Switzerland’s overall emissions and the sufficiency of its regulations and climate targets, whereas the subject of the Norwegian case is the issuance of the specific production licenses, as opposed to Norway’s climate regulations as a whole. 

A couple of days ago, the aftermath of the ECtHR’s ruling in KlimaSeniorinnen v. Switzerland took an interesting turn. 

When a state is found by the ECtHR to be in breach of its human rights obligations, it must report back to the Council of Europe within six months on the measures it has taken to comply with the judgment. In KlimaSeniorinnen v. Switzerland, the ECtHR concludes that Switzerland is in breach of its obligations under Article 8 of the ECHR but does not mandate any specific measures that Switzerland must take to become compliant. 

In the beginning of June, the Swiss parliament’s lower chamber voted to ignore the judgment, claiming that the ECtHR had “exceeded the limits of permissible legal development and disregarded Switzerland’s democratic decision-making processes.” The voting of the higher chamber on 12 June echoed this sentiment, although the wording of the resolution is somewhat milder, stating that Switzerland does not need to react to the judgment as it already has in place an effective climate change strategy. 

The final decision on whether Switzerland will undertake any measures or change course to adhere to KlimaSeniorinnen v. Switzerland is up to the Swiss government, which is expected to announce its verdict in August. However, the Swiss parliament’s resolution to “keep calm and carry on” may inspire other states to take the same position if found in violation of the ECHR on similar grounds. While the judgments from the ECtHR are binding on member states, there is a lack of effective remedies if a state chooses to ignore them. The claimants in KlimaSeniorinnen have already notified that new legal proceedings will be brought should the Swiss government maintain the parliament’s position.

The UK Supreme Court has concurred with Oslo District Court in the interpretation of the EIA Directive 

Meanwhile, another climate change lawsuit in Norway has emerged, challenging the validity of the state’s approvals for plans necessary for oil and gas development (PDOs). Greenpeace Nordic and Nature and Youth Norway filed a lawsuit against the Norwegian State to invalidate three approved PDOs for the Breidablikk, Yggdrasil, and Tyrving fields. 

The basis for the claim was alleged violations of the requirements for Environmental Impact Assessments (EIA) under the Norwegian petroleum regulations. The claimants argued that these regulations, when interpreted in light of Section 112 of the Norwegian Constitution and EU Directive 2011/92 (the EIA Directive), required the EIA to include an evaluation of combustion emissions. Additionally, the claimants asserted that the absence of an EIA for combustion emissions constituted a violation of Articles 2 and 8 of the ECHR and the UN Convention on the Rights of the Child.  

On 18 January 2024, the Oslo District Court ruled in favour of the claimants, invalidating the PDO approvals. The claimants’ argument that the absence of an EIA for combustion emissions violated the ECHR and the UN Convention on the Rights of the Child was not upheld by the court. However, the court determined that evaluating combustion emissions from the fields was required as part of the EIA by the EIA Directive and Norwegian petroleum regulations. Accordingly, it was a procedural error not to include such an evaluation of emissions. 

According to Norwegian administrative law, a procedural error does not lead to invalidity if there is reason to believe that the error could not have influenced the decision, cf. Section 41 of the Public Administration Act. The threshold is whether there is a not entirely remote possibility that the decision has been influenced by the error. If there is such possibility, the question of invalidity is subject to an assessment of competing interests, according to non-statutory administrative law. In its decision, the Oslo District Court found that there was a not entirely remote possibility that the incomplete EIAs had influenced the state’s granting of the approvals and that this, after an assessment of the relevant interests in play, should lead to invalidity. 

The judgment is rather controversial and has been appealed. The state maintains that evaluating combustion emissions from the fields is not required as part of the EIA by neither the EIA Directive nor Norwegian petroleum regulations. Another reason for the appeal is that the PDOs would have been approved by the state even if an EIA that did include an evaluation of such emissions had been conducted prior to the approvals. In such case, the procedural error that the (alleged) incomplete EIAs constitute, could not have influenced the outcome of the decision, and the approvals are valid according to Section 41 of the Public Administration Act. 

In a landmark ruling issued on 20 June 2024, the UK Supreme Court concurred with the Oslo District Court’s interpretation of the EIA Directive, which is also implemented in UK national regulations. The UK case concerns an application for a planning permission to expand oil production from a well site granted by the local council in Surrey County. The EIA had solely focused on the combustion emissions within the well site during the project’s operational phase and excluded the emissions from the eventual combustion of the extracted oil. By a three-to-two majority, the UK Supreme Court found that the council’s decision was unlawful because the climate impact of the eventual burning of fossil fuels offsite should have been, but was not, considered. The majority clarified that combustion emissions are indeed “direct or indirect […] effects of the project” as defined by the EIA Directive and national UK regulations. 

This interpretation of the EIA Directive aligns with the decision from the Oslo District Court, where the court determined that the EIA directive requires considering all relevant climate impacts, not just direct ones. Astonishingly enough, the UK Supreme Court even cited the Norwegian district court ruling – if only because it found the reasoning persuasive.

Will the UK Supreme Court decision have any impact on Norwegian law?   

When the Norwegian Appeal Court considers the state’s appeal in September, one main question will be whether the EIAs conducted were sufficient although they did not consider combustion emissions. If the EIAs were not sufficient, the next question is whether there is a not entirely remote possibility that this procedural error has influenced the state’s decision to approve the PDOs.  

In its consideration of the first issue, there is now the question of whether there is an increased possibility that the Appeal Court finds that evaluating combustion emissions from the fields was required as part of the EIA as result of the ruling from the UK Supreme Court. However, this judgment has formally very limited authority on Norwegian law and will only impact the Norwegian Appeal Court’s decision insofar as the court finds the reasoning of the UK Supreme Court persuasive.  

Another key point is that even if one assumes that the interpretation of the EIA Directive by the UK Supreme Court and the Oslo District Court is correct, and the EIAs were insufficient, this will not automatically lead to invalidity in the Norwegian case. In Norway, the obligation to conduct EIAs is a procedural rule and, as explained, administrative decisions are valid despite procedural errors if there is no reason to believe that they have influenced the decision. There is only a finding of invalidity if there is a not entirely remote possibility that the error has influenced the decision and an assessment of the relevant interests in play leads to invalidity. In the case at issue, there is reason to assume that EIAs that did include combustion emissions would not have contributed to any new information that was not already considered before the PDOs were approved. In such case, the approvals are valid according to Section 41 of the Public Administration Act. 

Therefore, the Norwegian Appeal Court’s assessment of validity based on (alleged) procedural errors will remain an independent and distinctly Norwegian law evaluation, regardless of the UK Supreme Court’s interpretation of the EIA Directive.  

It is also worth noting that even if the Appeal Court should decide to invalidate the approval of the PDOs, this will not prohibit the state from conducting complete EIAs and, with that, correcting the (alleged) procedural errors, before then approving the PDOs.