The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

Norway's turn to face a climate lawsuit

October 19 2016 19 October 2016

In June, Norway became the first developed country to ratify the Paris Agreement. Now environmental groups are suing its government for violating the climate treaty by forging ahead on oil exploration plans in the Barents Sea. The fight centers on Norway’s decision in May 2016 to award 10 new drilling licenses to oil companies. That decision, the plaintiffs say, goes against Article 112 of Norway’s Constitution, which reads:

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 legal writ, published online, acknowledges that there is little precedent in the Norway for invalidating decisions under Article 112.  Nonetheless, here’s how the plaintiffs intend to argue their case:

The presumption principle, which calls for Norwegian law to be interpreted in accordance with international law, makes international law rules and fundamental principles of international law a part of our national legal system. This means that the Climate Convention, the Paris Agreement and international human rights and environmental principles are relevant sources of law when the limitations in Article 112 of the Constitution are to be determined.

It must be clear that some environmental encroachments could never be accepted under Article 112 of the Constitution. For example, there can be little doubt that Article 112 of the Constitution functions as an absolute limitation against administrative decisions which impair the environment in such a way that it leads to serious harm to human health – in any case if the decision has only been justified on the basis of economic objectives.

In line with this, the Environmental Organisations will primarily argue that the combined climate and environmental impacts the Licensing Decision represents in total are so serious that it cannot be justified on the basis of economic considerations – Article 112 of the Constitution functions as an absolute limitation against the impacts the Licensing Decision leads to if the decision is only justified on an economic basis.

The lawsuit is part of is a global shift in strategy on the part of groups campaigning for urgent action on climate change and who are now quickly turning to the courts for solutions. The most notable example is Urgenda v Netherlands, a decision by a District Court in the Hague that ordered the Dutch Government to take action to limit national greenhouse gas emissions by at least 25 per cent by 2020. The decision is being appealed.  That hasn’t stopped the Klimaatzaak campaign in Belgium from signing up thousands of citizens as co-plaintiffs in another case where political inaction on the climate front will come under judicial scrutiny. Similar cases against governments could be moving ahead in Washington State and Australia.

Regardless of the outcome of Urgenda appeal, observers note that climate change litigation could follow a story arc similar to the one we saw with asbestos and tobacco lawsuits.   A major ruling sets a precedent, highlighting the inadequacies of domestic laws and government action. A wave of litigation gains momentum as public perceptions change.  Finally, so do the positions of governments.

In a recent report, Keely Boom, Julie-Anne Richards, Stephen Leonard of the Climate Justice Program explore some of the options available to governments who will want to avoid getting bogged down in litigation:

There are a number of alternatives to litigation that governments could explore and implement. The development of the loss and damage mechanism within the climate negotiations offers an opportunity for the international community to establish a means for communities to access equitable and adequate compensation for the impacts of climate change.  Governments need to directly address issues of private liability for the fossil fuel industry, just as occurred in relation to the tobacco industry.

The Carbon Majors research has revealed the enormous contribution made by the Carbon Majors to climate change. If private liability is not addressed by governments, the costs of climate change will be carried by governments and their citizens. Further, climate litigation brought by individuals seeking damages may eventually expand to such a level that it could dwarf previous experiences in tobacco, asbestos and oil spill litigation.

[…]

Another, potentially related, option is that state and federal governments could develop and implement climate compensation law which would alter the rules of liability and compensation in relation to climate change.  Many states have created legisation to deal with a specific environmental or public health harm, including tobacco242 and transboundary haze. Some jurisdictions have already developed legislation that specifically address climate liability.

Climate compensation legislation could either clarify the existing law as it relates to climate litigation or alternatively it might change the law to make climate litigation feasible. A model Climate Compensation Act (Model Act) was released on the sidelines of the Paris climate negotiations which seeks to provide a draft of such legislation that could be adapted to different jurisdictions.

Canada ratified the Paris Agreement earlier this month:

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