Nordic Institute of European Legal Studies (NIELS)

The EFTA Court has registered a new case, Case E-18/24, The Norwegian State v Greenpeace Nordic, Nature and Youth Norway. It is a request for an advisory opinion under Article 34 SCA from the Borgarting Court of Appeal (Borgarting lagmannsrett) concerning an interpretation of Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment (the Environmental Impact Assessment (EIA) Directive), and the validity of decisions by the Ministry of Energy to approve plan for development and operations (PDO) for three petroleum projects in the North Sea.

Facts

This case involves the Ministry of Energy’s approval of development and operation plans (PDO) for three North Sea petroleum projects. The approvals in question are: the decision on June 29, 2021, for the Breidablikk oil field; the decision on June 5, 2023, for the Tyrving oil field; and three decisions on June 28, 2023, for the Yggdrasil oil and natural gas project.

On August 28, 2024, the Ministry of Energy decided that the approvals for Tyrving and Yggdrasil would stand. On August 30, 2024, Greenpeace Nordic and Nature and Youth announced they would also challenge the validity of these two decisions.

The three projects are as follows:

• Breidablikk: Estimated recoverable reserves of over 30 million standard cubic meters of oil. Production started in early 2024 with an expected production period of 25 years. Gross emissions are around 87 million tonnes of CO2.
• Tyrving: Estimated recoverable reserves of around 4.1 million standard cubic meters of oil equivalents. Production is expected to start in September 2024 with gross emissions estimated at 11.3 million tonnes of CO2.
• Yggdrasil: Comprises the fields Hugin, Munin, and Fulla with estimated recoverable reserves of around 140 million standard cubic meters of oil equivalents. Production is expected to start in 2027 with gross emissions estimated at 365 million tonnes of CO2.

When petroleum is discovered, a planning process begins, leading to potential development and production (extraction). A licensee must apply for and secure approval for a plan for development and operations (PDO) of the discovered petroleum. The PDO includes a technical and economic description of the project, along with an Environmental Impact Assessment (EIA) as required by Directive 2011/92, as amended.

Greenpeace Nordic, Nature and Youth Norway have challenged the validity of the Ministry’s decisions, arguing that the EIAs did not adequately consider the impact of greenhouse gas (GHG) emissions from the consumption of the extracted petroleum.

The referring court’s questions

The referring national court wants to know the answer to a number of questions. First, whether GHG emissions from the consumption of extracted petroleum are considered ‘environmental effects’ of the project under Article 3(1) of the EIA Directive. Next, whether a national court is required under Article 3 EEA to eliminate the unlawful consequences of a development consent granted without a prior EIA of these effects. And lastly, whether a national court can retroactively dispense with the obligation to assess these effects if it is shown that the failure did not influence the outcome of the decision-making process.

The formal questions have been phrased as follows:

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 “effects” of the project under Article 3(1)?
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?
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 decisionmaking process?

Request for case expedition

The referring national court, the Borgarting Court of Appeal, has asked that the EFTA Court give the case priority under Article 98 of the EFTA Court’s Rules of Procedure. This states,

1. At the request of the national court or, exceptionally, of his own motion, the President, after hearing the Judge-Rapporteur, may decide to apply an expedited procedure derogating from the provisions of these Rules to a request for an advisory opinion, where the circumstances referred to establish that a ruling on the question put to the Court is a matter of urgency.
2. In that event, the President may immediately fix the date for the hearing, which shall be notified to the parties to the main proceedings and interested persons when the request for an advisory opinion is served.
3. The parties to the main proceedings and interested persons may lodge statements of case or written observations within a period prescribed by the President, which shall not be less than 15 days. The President may request that they restrict the matters addressed in their statement of case or written observations to the essential points of law raised by the question referred.
4. The statements of case or written observations, if any, shall be notified to the parties to the main proceedings and interested persons prior to the hearing.
5. The President may decide to dispense with the report for the hearing, or to dispense with the translation of the report for the hearing.

If expedition cannot be granted, the referring court has asked that the case can nonetheless be given priority.

Request for an advisory opinion

The request for an advisory opinion sent by the Borgarting Court of Appeal (Borgarting lagmannsrett) to the EFTA Court in Case E-18/24, The Norwegian State v Greenpeace Nordic, Nature and Youth Norway can be read in full here.