{"id":57692,"date":"2025-12-22T11:13:09","date_gmt":"2025-12-22T19:13:09","guid":{"rendered":"https:\/\/elaw.org\/?post_type=resource&p=57692"},"modified":"2025-12-22T11:13:11","modified_gmt":"2025-12-22T19:13:11","slug":"the-norwegian-state-v-greenpeace-nordic-nature-and-youth-norway-case-e-18-24-21-may-2025-advisory-opinion-of-the-european-free-trade-association-court","status":"publish","type":"resource","link":"https:\/\/elaw.org\/es\/resource\/the-norwegian-state-v-greenpeace-nordic-nature-and-youth-norway-case-e-18-24-21-may-2025-advisory-opinion-of-the-european-free-trade-association-court","title":{"rendered":"El Estado noruego contra Greenpeace Nordic, Nature and Youth Norway, asunto E-18\/24 (21 de mayo de 2025) (Opini\u00f3n consultiva del Tribunal de la Asociaci\u00f3n Europea de Libre Comercio)"},"content":{"rendered":"\n

The Norwegian State v. Greenpeace Nordic, Nature and Youth Norway, Case E-18\/24 (21 May 2025) (Advisory Opinion of the European Free Trade Association Court)<\/a><\/p>\n\n\n\n

Background<\/p>\n\n\n\n

On 29 June 2023, Greenpeace Nordic and Nature and Youth (Natur og Ungdom) Norway filed for a temporary injunction against decisions by the Norwegian Ministry of Energy approving plans for development and operation of three oil and gas projects in the North Sea: Breidablikk, Tyrving, and Yggdrasil. Id.<\/em> at paras. 26 & 31. On 18 January 2024, the Oslo District Court granted the temporary injunction. Id.<\/em> at para. 31. The Ministry of Energy appealed the judgment in February 2024, and the Borgarting Appeals Court suspended the enforcement of the injunction on 20 March 2024. Id.<\/em> at paras. 31 & 32. The Appeals Court then requested this advisory opinion from the European Free Trade Association Court. Id. <\/em>at para. 32.<\/p>\n\n\n\n

Directive 2011\/92\/EU (the Environmental Impact Assessment [EIA] Directive) of the European Parliament and Council on the assessment of the effects of public and private projects on the environment, as amended by Directive 2014\/52\/EU, was incorporated into the Agreement on the European Economic Area (EEA) by decision of the EEA Joint Committee. Id.<\/em> at paras. 5-7. The EIA Directive applies to public and private projects that are \u201clikely to have significant effects on the environment.\u201d Id.<\/em> at para. 9 (quoting Article 1 of the EIA Directive). The Directive states that EIAs must identify, describe and assess \u201cthe direct and indirect significant effects of a project\u201d on factors including \u201cland, soil, water, air and climate.\u201d Id.<\/em> at para. 11 (quoting Article 3 of the Directive). Annex I to the Directive requires an EIA to be prepared for extraction of petroleum and natural gas projects where the amount extracted exceeds 500 tonnes\/day of petroleum and 500,000 cubic metres\/day of gas. Id.<\/em> at para. 16. Annex IV of the Directive requires a description of the \u201clikely significant effects of the project on the environment,\u201d including \u201cthe impact of the project on climate (for example the nature and magnitude of greenhouse gas emissions and the vulnerability of the project to climate change).\u201d Id.<\/em> at para. 18. The description of likely significant effects should cover \u201cthe direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the project.\u201d Id.<\/em> at para. 19 (quoting Annex IV of the Directive). <\/p>\n\n\n\n

The EIA Directive is implemented in Norwegian national law through the Petroleum Regulation, and through Norwegian Regulation No 854 of 21 June 2017 on environmental assessments. Id.<\/em> at paras. 23 & 24.<\/p>\n\n\n\n

The EIAs prepared for the oil and gas projects did not assess the impact on the climate of greenhouse gas (GHG) emissions arising from the downstream combustion of the extracted oil and gas. Id.<\/em> at para. 30. The parties disagreed on whether the GHG emissions released from end user consumption of the extracted oil and gas were environmental effects of the project, and on what the consequences were for a potential breach of the EIA directive. Id.<\/em> at para. 35.<\/p>\n\n\n\n

The following three questions were referred to and examined by the EFTA Court: <\/p>\n\n\n\n

    \n
  1. Where a project is listed in Directive 2011\/92\/EU Annex I point 14, are the greenhouse gas emissions that will be released from the extracted petroleum and natural gas, environmental \u201ceffects\u201d of the project under Article 3(1)? <\/li>\n\n\n\n
  2. If Question 1 is answered in the affirmative, is a national court required under Article 3 EEA, to the extent possible under national law, to eliminate the unlawful consequences of a development consent granted without a prior EIA of said effects? <\/li>\n\n\n\n
  3. If Question 2 is answered in the affirmative and national law allows for the annulation and\/or suspension of the unlawful consent, can a national court retroactively dispense with the obligation to assess these effects under Article 3(1) if it is shown that the failure has not influenced the outcome of the decision-making process?<\/li>\n<\/ol>\n\n\n\n

    Id.<\/em> at para. 38.<\/p>\n\n\n\n

    Analysis of Question 1, on whether GHG emissions released from extracted oil and gas considered environmental effects under the EIA Directive<\/p>\n\n\n\n

    The Court\u2019s preliminary remarks reiterate that the logic underlying the EIA Directive is the prevention of environmental damage, and that the effects of a project should be assessed to take account of concerns for human health, quality of life, and the maintenance of diversity and ecosystems. Id.<\/em> at para. 49. The Court also notes that \u201ccombating climate change is an objective of fundamental importance given its adverse effects and the severity of its consequences, including the grave risk of their irreversibility and its impact on fundamental rights . . . Greenhouse gas emissions are one of the main causes of climate change which the EEA States have made a commitment to combat.\u201d Id.<\/em> at para. 67.<\/p>\n\n\n\n

    The Court begins its analysis with a preliminary conclusion to which Norway objects: <\/p>\n\n\n\n

    \n

    [T]he release of greenhouse gas emissions is very likely to follow the antecedent action of extracting petroleum and natural gas in a project such as that at issue. If not for the project, the embedded greenhouse gases would stay below ground. As such, the extraction of the petroleum and natural gas represents a necessary precondition of burning it as fuel, thereby releasing emissions with an impact on the climate. It follows that the combustion of the petroleum and natural gas extracted and subsequently sold to third parties are likely effects of the project.<\/p>\nId.<\/em> at para. 69.\u00a0<\/cite><\/blockquote>\n\n\n\n

    The Court proceeds to address Norway\u2019s first argument: that downstream emissions should not be considered because intermediate steps, such as refinement, are separate processes requiring separate EIAs that would partially include the emissions from the extracted oil and gas. Id.<\/em> at para. 70. The Court disagrees:<\/p>\n\n\n\n

    \n

    [W]hether a subsequent refinement project requires development consent and an environmental impact assessment or otherwise cannot affect the prior obligation to carry out such an assessment at the extraction stage, even if there might be some overlap between the assessments. Thus, where the assessment of the environmental impacts must, in particular, identify, describe and assess in an appropriate manner the indirect effects of a project, that assessment must also include an analysis of the cumulative effects on the environment which that project may produce if considered jointly with other projects, in so far as such an analysis is necessary in order to ensure that the assessment covers examination of all the notable impacts on the environment of the project in question. As such, having regard to the fact that greenhouse gas emissions arising from petroleum and natural gas might again be considered in the context of a subsequent refinement project does not, in itself, preclude their consideration in the earlier extraction project.<\/p>\n\n\n\n

    For the sake of completeness, the Court notes, further, that nothing in the text of the EIA Directive precludes a particular effect from being considered in environmental impact assessments relating to multiple projects. As such, the fact that a subsequent environmental impact assessment may or may not assess the same effects at a later juncture cannot affect the obligation to carry out such an assessment at the extraction stage in a project such as that at issue in the main proceedings.<\/p>\nId.<\/em> at para. 71 & 72 (internal citations omitted).\u00a0<\/cite><\/blockquote>\n\n\n\n

    The Court also notes that the EIA must occur at the earliest possible stage in the planning process: <\/p>\n\n\n\n

    \n

    [A]n environmental impact assessment in respect of a project must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment. The requirement that such an assessment should precede consent is, as is highlighted in recital 2 of Directive 2011\/92\/EU, justified by the fact that it is necessary, in the decision-making process, for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than to counteract their effects subsequently. This objective would be undermined if combustion emissions were only assessed by environmental impact assessments at a later juncture.<\/p>\nId.<\/em> at para. 75 (internal citations omitted).<\/cite><\/blockquote>\n\n\n\n

    The Court adds the importance of public participation as an additional reason for the inclusion of emissions in the EIA:<\/p>\n\n\n\n

    \n

    Furthermore, as also noted above, public participation in decisions which may have a significant effect on the environment must take place at an early stage, when all options are still open and effective public participation can take place. In that context, it seems clear that to allow combustion emissions only to be assessed by environmental impact assessments at a later juncture would run counter to these objectives. This is because the environmental impact assessment prior to the extraction of petroleum and natural gas represents the last point at which the public can voice their views and concerns that greenhouse gas emissions that are likely to result from such products will ultimately reach the atmosphere and whether to avoid this by refraining from exploiting the deposits.<\/p>\nId.<\/em> at para. 76.<\/cite><\/blockquote>\n\n\n\n

    The Court also notes that since the EIA process is the last point at which authorities may determine whether consent should be granted for the project, and therefore whether oil and natural gas will be extracted or not, it is a determinative moment for whether those greenhouse gas emissions resulting from the combustion of the fuel will eventually be released into the atmosphere. Id.<\/em> at para. 77. Information regarding the likely impacts of the project on the climate is relevant information when consent is considered, as this information determines whether the volume of oil or natural gas that the developer will be permitted to extract will be limited, and if so by how much. Id.<\/em> at para. 79 & 80.<\/p>\n\n\n\n

    The Court further notes that \u201cgeographical limitations are not applicable in assessing the effects of projects within Article 4(1)[.]\u201d Id.<\/em> at para. 84.<\/p>\n\n\n\n

    The Court also addresses Norway\u2019s argument regarding the lack of certainty for how much and in what context the fuel will be burnt:<\/p>\n\n\n\n

    \n

    [T]he fact that the petroleum and natural gas extracted from a project such as that at issue in the main proceedings might be put to a variety of uses does not entail that its effects on the climate are not susceptible of examination in the context of an environmental impact assessment. As was the case in [two cases cited above], the likely effects are known, namely, that a significant proportion of the extracted petroleum and natural gas being burned as fuel, thereby generating greenhouse gas emissions. The fact that these effects are likely, rather than certain, cannot represent a barrier to such greenhouse gas emissions being considered as relevant effects under Articles 1 and 3(1) of the EIA Directive.<\/p>\n\n\n\n

    Moreover, the fact that the precise extent of the greenhouse gas emissions may be unknown, as such emissions will depend to some extent, first, on the use to which extracted petroleum and natural gas are put (that is, whether they are combusted or not), and second, in the event that they are combusted, the type of fuel to which they are refined (for example, jet fuel, diesel, or gasoline) does not preclude the inclusion of such greenhouse gas emissions in an environmental impact assessment. The Court observes that the Norwegian Government has provided a certain amount of statistical information concerning the uses to which such extracted petroleum and natural gas are typically put. As such, the likely uses of these products \u2013 and likely greenhouse gas emissions \u2013 can be readily identified by developers preparing a report in accordance with Article 5(1) of the EIA Directive. The Norwegian Government has further noted that it is fairly easy to assess the gross emissions from burning the estimated amount of petroleum and natural gas from a given reservoir.<\/p>\nId.<\/em> at paras. 87 & 88.<\/cite><\/blockquote>\n\n\n\n

    The Court concludes that it does not appear \u201cunduly burdensome\u201d to require that developers provide reasoned estimates of the GHG emissions likely to result from subsequent combustion of the fuel extracted. Id.<\/em> at para. 89. This estimate could consist of a range of emissions, especially in cases where the developer is not responsible for determining the end use of the products. Id.<\/em><\/p>\n\n\n\n

    The Court also introduces an additional argument regarding the logic behind considering downstream emissions in the EIA. The projects listed in Annex I of the EIA Directive include projects where the extracted amount exceeds 500 tonnes\/day for oil and 500,000 cubic meters\/day for natural gas. Thus,<\/p>\n\n\n\n

    \n

    the effects of such projects are defined by the extraction that causes them. Accordingly, as noted by the respondents in the main proceedings, if the intention was to only include emissions from the production phase in the scope of the EIA obligation, one would have expected the EIA obligation to be defined based on the size or energy use of the project itself, not the volume of the extracted resources themselves. Thus, the Court observes that the fact that the size threshold is essentially connected to the products, rather than the development project itself, and that the quantity of products extracted determines whether an EIA is required in such a project suggests that the emissions from those products will be significant.<\/p>\nId.<\/em> at para. 93.<\/cite><\/blockquote>\n\n\n\n

    Finally, Norway argues that it is difficult in practice to determine the significance of net GHG emissions when the alternative to a new Norwegian project may mean non-European producers will increase exports, and because oil and natural gas are alternatives to energy sources such as coal that produce considerably more emissions. Id.<\/em> at para. 94.<\/p>\n\n\n\n

    The Court responds that the text of Article 3(1) of the directive makes it explicit \u201cthat the environmental impact assessment should be limited in scope to the effects of the project itself, as distinct from other alternative projects, whether existing or speculative.\u201d Id.<\/em> at para. 95. The significant impacts of a project do not include \u201cspeculative analyses of knock-on effects on other projects elsewhere.\u201d Id.<\/em> at para. 96. <\/p>\n\n\n\n

    The Court concludes on this issue that \u201cgreenhouse gas emissions that will be released from the combustion of petroleum and natural gas extracted as part of a project listed in point 14 of Annex I to the EIA Directive, and then sold to third parties, constitute \u201ceffects\u201d of that project within the meaning of the Directive.\u201d Id.<\/em> at para. 99.<\/p>\n\n\n\n

    Analysis of Questions 2 & 3, on consequences of unlawful consent granted without consideration of downstream effects<\/p>\n\n\n\n

    The EIA Directive does not specify what action should be taken in the event of a breach of the obligation to carry out an environmental impact assessment before consent for a project is given. Id.<\/em> at para. 102. However, the Court finds that under the principle of sincere cooperation, as laid out in the Agreement on the European Economic Agreement (EEA), states \u201care required to nullify the unlawful consequences of a breach of EEA law.\u201d Id.<\/em> at para. 103. This includes the responsibility of national authorities to remedy the failure to carry out the EIA by \u201crevoking or suspending consent already granted\u201d to a project. Id.<\/em><\/p>\n\n\n\n

    The exact measures to remedy a breach of EEA law are to be determined by the national court. Id. <\/em>at para. 106. In exceptional circumstances, national rules are not precluded from permitting regularization of operations or measures which are unlawful under EEA law, provided that the regularization does not offer to the parties an opportunity to circumvent the rules of EEA law or dispense with applying them. Id.<\/em> at paras. 108 & 109. Even so, an assessment must still be conducted that takes into account both the project\u2019s future environmental impact, and, in instances where the project has already been completed, the impact since the time of completion of the project. Id.<\/em> at para. 110.<\/p>\n\n\n\n

    On the question of whether a national court can retroactively dispense with the obligation to assess the effects of a project in the EIA, the Court notes that the current case involves an EIA that omitted \u201cvery significant amounts\u201d of GHG emissions and therefore not in line with the EIA directive. Id.<\/em> at para. 116. As such, <\/p>\n\n\n\n

    \n

    concluding that such an omission could not have impacted the development consent would undermine the whole purpose of the EIA Directive, which is to assess the environmental impacts of a project and take these assessments into consideration in the development consent procedure. It follows that a national court cannot retroactively dispense with the obligation to assess the direct and indirect effects on the environment of a project under Article 3(1) of the EIA Directive.<\/p>\nId.<\/em><\/cite><\/blockquote>\n\n\n\n

    The Court does note that there are exceptional circumstances where a national court can temporarily maintain the effects of a national rule that is contrary to the EEA until the defect is remedied. Id.<\/em> at para. 117. However, these circumstances which would allow continued consent for a project that breached EEA law would need to rise to the level of a \u201cserious threat of disruption to the electricity supply\u201d of the state or other similar concern requiring overriding public interests, not pure economic considerations. Id.<\/em> at para. 118.<\/p>\n\n\n\n

    To these two questions, the Court concludes that \u201ca national court is required under Article 3 EEA, to the extent possible under national law, to eliminate the unlawful consequences of a failure to carry out a full environmental impact assessment required under the EIA Directive\u201d and \u201cthat a national court may not retroactively dispense with the obligation to assess the effects under Article 3(1) of the EIA Directive.\u201d Id.<\/em> at para. 120-122.<\/p>\n\n\n","protected":false},"excerpt":{"rendered":"

    The Norwegian State v. Greenpeace Nordic, Nature and Youth Norway, Case E-18\/24 (21 May 2025) (Advisory Opinion of the European Free Trade Association Court) Background On 29 June 2023, Greenpeace Nordic and Nature and Youth (Natur og Ungdom) Norway filed for a temporary injunction against decisions by the Norwegian Ministry of Energy approving plans for […]<\/p>\n","protected":false},"author":18,"featured_media":0,"comment_status":"closed","ping_status":"closed","template":"","resource-topic":[34,30484,43,62,153,2053,154,91],"resource-type":[528],"resource-category":[30097],"content-for-websites":[30101],"region":[767,544],"class_list":["post-57692","resource","type-resource","status-publish","hentry","resource-topic-access-to-information","resource-topic-advisory-opinions","resource-topic-climate-change","resource-topic-environmental-impact-assessment","resource-topic-greenhouse-gases","resource-topic-impacts","resource-topic-litigation","resource-topic-oil-gas","resource-type-cases","resource-category-legal","content-for-websites-climate","region-norway","region-western-europe"],"blocksy_meta":[],"acf":[],"_links":{"self":[{"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/resource\/57692","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/resource"}],"about":[{"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/types\/resource"}],"author":[{"embeddable":true,"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/users\/18"}],"replies":[{"embeddable":true,"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/comments?post=57692"}],"wp:attachment":[{"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/media?parent=57692"}],"wp:term":[{"taxonomy":"resource-topic","embeddable":true,"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/resource-topic?post=57692"},{"taxonomy":"resource-type","embeddable":true,"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/resource-type?post=57692"},{"taxonomy":"resource-category","embeddable":true,"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/resource-category?post=57692"},{"taxonomy":"content-for-websites","embeddable":true,"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/content-for-websites?post=57692"},{"taxonomy":"region","embeddable":true,"href":"https:\/\/elaw.org\/es\/wp-json\/wp\/v2\/region?post=57692"}],"curies":[{"name":"gracias","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}