Taking People v Arctic Oil Seriously: The Potential of Strategic Environmental Assessments and the Principle of Non-Regression in Guiding Energy Policy

Abstract

Climate change jurisprudence is susceptible to transnational borrowing - it develops incrementally, and diagonally, and the decisions of lower-courts, and even overturned judgements, influence rulings in other jurisdictions.

People v Arctic Oil is a full-bench judgement and decision delivered by the Norwegian Supreme Court in December 2020. It was a case where NGOs filed an application to quash licences issued by the Norwegian government for petroleum exploration in the Barents Sea. The primary claim was that the decision to allow drilling for oil does not take into account extraterritorial emissions, and therefore violates Article 112 of the Norwegian constitution that protects the right to a healthy environment. The case was decided in favour of the government at all three stages, but there was incremental jurisprudence at all levels, and a dissenting opinion at the Supreme Court that broke new ground.

Environmental law in the time of climate change plays a crucial role in informing energy policy. Drawing on the judgements in People v Arctic Oil at different stages, and particularly the minority opinion by the Supreme Court, this chapter focuses on two such aspects:

(1) the relationship between rights and strategic environmental assessments which requires the citizenry to be appraised of the effects on climate change by energy policy even at an early stage, and

(2) the principle of non-regression, which could require the government to justify their decisions when energy policy results in decarbonisation backsliding.

Keywords: energy policy, climate law