European Court Of Human Rights Adds To Growing Body Of Climate Change Caselaw

InGreenpeace Nordic and Others v Norway the European Court of Human Rights (ECtHR) considered a challenge to the Norwegian Government's decision to grant ten offshore petroleum exploration licences. The applicants argued that the licensing process breached various rights under the European Convention on Human Rights (Convention) by failing to assess the climate impacts of the licences adequately, particularly downstream emissions, including those from exported oil and gas.

The ECtHR was ultimately not persuaded that there had been a breach of the applicants' Convention rights, but the judgment is the latest in a line of international developments describing the climate change obligations of States in the licensing of future projects.

Key points

• States retain a wide margin of appreciation on how to comply with their human rights obligations in a climate change context, but are expected to ensure an adequate, timely and comprehensive Environmental Impact Assessment (EIA) based on the best available science before potentially harmful activities are authorised.
• The ECtHR accepted that there was a sufficiently close causal link between the granting of exploration licences and climate impacts given the potential risk of extraction, but placed decisive weight on safeguards at a later stage of the process where extraction may be authorised or refused.
• For petroleum projects, the EIA must include a quantification of the GHG emissions anticipated to be produced, including the combustion emissions both within the country and abroad.
• Individual standing remains a high bar and requires detailed, particularised evidence of high intensity exposure and an immediate need for individual protection. Relevant organisations are more likely to be able to establish standing in climate change cases.

Background

The judgment follows the landmark ruling in Verein KlimaSeniorinnen Schweiz and Others v Switzerland (App. 53600/20) (VKS, summarised here) and forms part of a growing body of international climate jurisprudence to which the judgment itself refers, including the UK Supreme Court's decision in R (on the application of Finch on behalf of the Weald Action Group) v Surrey Country Council and others [2024] UKSC 20 (summarised here) and recent high profile advisory opinions from the European Free Trade Association (EFTA) Court (summarised here), International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ) (summarised here).

The applicants Greenpeace Nordic, Young Friends of the Earth Norway and six individuals claimed that Norway had failed to adequately assess the climate impacts of exploration and potential future extraction, including combustion emissions and emissions arising from exported oil and gas. They argued that deferring those assessments to later stages of the licensing process, particularly the Plan for Development and Operation (PDO) stage, rendered the procedural safeguards ineffective and violated their rights under Articles 2 and 8.

The applicants' claims were rejected by the Norwegian courts, including the Supreme Court, which held that the effects of possible future emissions as a result of the licences did not constitute an "immediate risk" and, consequently, the issue did not fall within Articles 2 or 8 of the Convention.

The ECtHR emphasised the principle of subsidiarity, noting that it would not review complaints about Norway's petroleum policy or climate strategy as a whole. Its scope was limited to examining whether the licensing framework contains sufficient procedural safeguards consistent with Convention standards.

Judgment

Article 8 (right to respect for private and family life)

Causation

The ECtHR recognised that Article 8 secures a right to effective protection by State authorities against serious adverse effects of climate change on life, health, well-being and quality of life and accepted that there was a "sufficiently close link" between the licensing of exploration activities and climate impacts.

While exploration will not always be followed by extraction, in Norway it is both a legal and practical precondition for it, meaning petroleum would not be extracted but for the opening of an area for extraction. The fact that other permits are necessary before extraction can take place does not break that chain of causation, drawing parallels to the UK Supreme Court's reasoning in Finch, where the causal connection between extraction and combustion was upheld.

However, the ECtHR explained that when considering causation in the climate change rights context, it has not required it to be shown that "but for" a failing of the authorities the harm would not have occurred. It did observe that the link between petroleum exploration and future production is inherent, and that the petroleum project in question entailed potential risks of extraction.

It should be noted that the ECtHR is not applying a strong causation test in this context, certainly when compared to the discussion of causation in Finch where the "but for" test was described as the weakest and the facts there involved the strongest possible causal connection (with combustion being inevitable following production). The difference in approach is unsurprising since Finch was concerned with causation for the purposes of the EIA regime, looking at whether emissions were an "effect" of the project, whereas the ECtHR here examined the broader question of whether the licensing decisions led to exposure to serious risk of adverse effects of climate change so as to engage the Convention right.

Margin of appreciation and international alignment

The ECtHR acknowledged States' wide margin of appreciation in choosing how to meet their climate obligations but, in light of scientific evidence and growing recognition of the link between the adverse effects of climate change and the enjoyment of human rights, it reiterated its signal to States that "climate protection should carry considerable weight in the balancing of any competing considerations".

The ECtHR noted that procedural safeguards will be relevant to the question of whether a State has remained within its margin of appreciation. Especially material to this determination is whether "an adequate, timely and comprehensive environmental impact assessment in good faith and based on the best available science" has been conducted before "authorising a potentially dangerous activity" which may infringe on an individual's Article 8 rights.

Specifically in relation to petroleum production projects, the judgment lays down further requirements: (i) the EIA must include a quantification of the GHG emissions anticipated to be produced (including the combustion emissions both within the country and abroad); (ii) public authorities must assess whether the activity is compatible with their obligations under national and international law to take effective measures against the adverse effects of climate change; and (iii) informed public consultation must take place at a time when all options are still open and when pollution can realistically be prevented at source.

It also highlighted that such procedural requirements are consistent with emerging international standards, referring specifically to the EFTA Court's opinion on petroleum and natural gas EIAs and recent advisory opinions of the Inter-American Court of Human Rights, ITLOS and the ICJ.

Adequacy of the assessment

The applicants argued that Norway had failed to adopt such procedural safeguards and that deferring critical climate analysis to the PDO stage was unlawful and ineffective, as it risked narrowing the scope of review and excluding important climate impacts, including exported emissions.

The ECtHR accepted that the licensing process was not comprehensive and described it as having "procedural shortcomings". However, it considered that these were remediable under Norway's current framework. It placed significant weight on the safeguards embedded at the PDO stage, which is the point at which extraction can be authorised. Particularly important was that there was no automatic entitlement to PDO approval: licensees have no right to development consent; the authorities retain full discretion to refuse or condition approval. Interestingly, there also appears to have been an official assurance from the Norwegian Government that the climate impacts of petroleum production and combustion emissions would be assessed at the PDO stage.

The ECtHR considered these features sufficient to ensure that climate risks are meaningfully assessed before any extraction takes place.Accordingly, it concluded that Norway's framework provides effective procedural safeguards and there was no violation of Article 8.

Standing

The ECtHR, in assessing the applicants' standing and following VKS, drew a distinction between the organisational and individual applicants.

Individual standing

To establish the required "victim" status, individual applicants must demonstrate:

• "a high intensity of exposure to the adverse effects of climate change; and
• a pressing need for individual protection under the Convention".

The individuals focused on the impact of climate change on their health, such as mental distress, including anxiety and grief. While the ECtHR did not dismiss the seriousness of such conditions, and recognised the specific vulnerability of indigenous Sámi communities, it found that the individuals had not provided sufficiently particularised evidence such as medical documentation or evidence of specific exposure to meet the high "victim" threshold. Their applications were therefore inadmissible.

Organisational standing

For the two organisational applicants, the ECtHR applied the three-part test developed in VKS:

• the organisation must be lawfully established or have standing in the relevant jurisdiction;
• it must be able to demonstrate that it pursues a dedicated purpose in defence of human rights consistent with its statutory objectives; and
• it must be able to demonstrate that it is genuinely qualified and representative of affected individuals within the jurisdiction.

The ECtHR held that both NGOs met these requirements and confirmed the position in VKS that the standing of an organisation was not "subject to a separate requirement of showing that those on whose behalf the case has been brought would themselves have met the victim-status requirements for individuals in the climate context".

Article 2 (right to life), Article 13 (effective remedy) and Article 14 (non-discrimination)

The applicants also argued that Norway's licensing decisions exposed them to a potential risk of lethal harm from climate change, in breach of Article 2. Consistent with the VKS judgment, the ECtHR declined to examine Article 2 separately on the basis that where environmental or climate impacts are at issue the relevant obligations can be assessed under Article 8, where the ECtHR applies broadly the same principles.

The Article 13 and Article 14 claims were also declared inadmissible, because the domestic courts had sufficiently examined the case and because relevant arguments (eg on age or Sámi discrimination) had not been raised before the domestic courts.

Comment

Whilst the ECtHR ultimately found no violation of Article 8, the decision is nonetheless an important precedent regarding the procedural obligations of Convention States in licensing of oil and gas projects. It underscores that States are required to conduct adequate and transparent EIAs prior to authorising projects with the potential to cause environmental harm interfering with Convention rights. Crucially, the ECtHR indicated that such assessments must be sufficiently comprehensive to account for downstream and cumulative emissions, including from exported oil and gas.

Individuals seeking to challenge environmental decisions must demonstrate that the effects of climate change have a direct, personal impact and necessitate an immediate need for protection, which remains a high threshold in the context of environmental harm. However, the judgment reinforces the ECtHR's view of the role of well-established NGOs as legitimate representatives of collective environmental interests. By confirming their capacity to bring claims on behalf of affected communities, the judgment strengthens the procedural avenues through which NGOs could seek to bring claims against States.

In emphasising that climate protection should carry considerable weight in the balancing of competing considerations, an area traditionally left to the States' own discretion, this decision adds to the growing pressure and sense of urgency from international legal institutions.

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