The EFTA Court has ruled that greenhouse gas emissions resulting from the combustion of oil and gas must be considered part of the environmental impact of fossil fuel production. This advisory opinion comes at the request of a Norwegian appeals court, which is handling a case brought by environmental groups aiming to halt new oil and gas developments in the North Sea.
Three environmental organizations sued the Norwegian government, arguing that it had failed to assess the climate impact of burning the fossil fuels extracted from the planned fields before issuing production licenses. The case focuses on three areas: Breidablikk, Tyrving, and the yet-to-be-completed Yggdrasil field—currently the largest of the disputed sites.
The EFTA Court clarified that under the EU's Environmental Impact Assessment Directive, emissions generated by end users of oil and gas should be counted when evaluating the overall environmental impact of extraction projects.
Environmentalists in Norway hailed the court’s opinion as a major victory. “The consequence of this clear opinion from the EFTA Court is that the decisions must be annulled and that the ongoing activities at these sites must be stopped,” said Jenny Sandvig, legal counsel for the environmental groups, in an interview with NRK, Norway’s public broadcaster.
However, representatives from the Norwegian Attorney General’s office disagree with that interpretation. They argue that the EFTA opinion does not in itself invalidate the production licenses already issued, and that the appeals court still needs to address several key questions in the case.
The EFTA Court noted that Norwegian courts are obliged to prevent illegal consequences stemming from an incomplete environmental assessment. It also stated that national courts cannot retroactively exempt projects from the requirement to evaluate climate impacts.
However, the court did allow for the possibility that environmental assessments could be carried out while development is ongoing—or even after operations have started—if that is what is required to comply with EU directives. Still, national law cannot permit companies to bypass regulations altogether, and the full environmental impact of a project must be considered—from inception to end—not just its future effects.
The appeals court is expected to resume hearings in September.
EFTA court
The EFTA Court has jurisdiction with regard to EFTA States which are parties to the EEA Agreement (at present Iceland, Liechtenstein and Norway). The Court is mainly competent to deal with infringement actions brought by the EFTA Surveillance Authority against an EFTA State with regard to the implementation, application or interpretation of EEA law, for giving advisory opinions to courts in EFTA States on the interpretation of EEA rules and for appeals concerning decisions taken by the EFTA Surveillance Authority. Thus the jurisdiction of the EFTA Court largely corresponds to the jurisdiction of the Court of Justice of the European Union over EU States. The proceedings before the EFTA Court consist of a written part and an oral part and all proceedings will be in English. In direct actions, the judgment is rendered in English only. Advisory opinions are rendered in English and in the language of the requesting court.
The EFTA Court consists of three Judges, one nominated by each of the EFTA States party to the EEA Agreement. The Judges are appointed by common accord of the Governments for a period of six years. The Judges elect their President for a term of three years.
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