It’s uncontroversial that the local weather influence of latest oil and gas extraction tasks should be assessed earlier than states can grant a allow. A extra controversial query is whether or not this requirement is proscribed to greenhouse gas (GHG) emissions which are immediately emitted by these installations, or whether or not it extends to emissions brought on by the combustion of the extracted fuels by finish customers. In response to a current advisory opinion by the EFTA Courtroom (Norway v Greenpeace and Nature and Youth Norway, E-18/24), handed down on 21 Could 2025, the latter is the case. The choice offers vital steerage on the applying of the Environmental Impression Evaluation (EIA) Directive (2011/92/EU) to fossil gas extraction, and has main implications for ongoing and future allowing procedures throughout Europe. It additionally varieties an vital puzzle piece within the quest for authorized accountability for the local weather impacts of fossil gas extraction, as this contribution seeks to point out.
The Norwegian oil and gas extraction tasks and their local weather influence
The case issues extraction permits that Norway granted for 3 oil and gas tasks within the North Sea (paras 27-29). Two of them are already in operation, whereas the third is scheduled to begin manufacturing in 2027. The manufacturing yield of those fields is predicted to be 850 million barrels of oil equivalents, which equals 460 million tons of CO2 emissions. To check: the overall annual CO2 emissions of Norway are 44 million tons.
The combustion of fossil fuels (oil, gas, coal) is the principle supply of GHG emissions, which trigger local weather change. The Paris Settlement seeks to stop harmful local weather change, aiming to restrict international heating to nicely beneath 2°C, and near 1.5°C. To realize this purpose, large emission reductions are mandatory, which basically require a fast phase-out of fossil gas use. As soon as extracted, most fossil fuels shall be burned, which signifies that new fossil gas extraction is basically incompatible with the Paris aims. Furthermore, new extraction can be not mandatory to fulfill future power wants, because the Worldwide Vitality Company’s Internet Zero by 2050 Roadmap exhibits. Nonetheless, a number of governments, together with Norway, are presently planning to supply greater than double the quantity of fossil fuels that might be in keeping with the 1.5°C purpose in 2030, and greater than triple in 2050.
The extraction of fossil fuels causes GHG emissions in any respect factors of the worth chain: this consists of emissions from the set up itself, for instance from operating the equipment, gas venting or flaring. These emissions are termed “direct” or “scope 1 emissions.” It additionally consists of downstream emissions, most notably emissions from burning fossil fuels by finish customers. The latter, often known as “scope 3 emissions”, make up 80% or extra of whole GHG emissions brought on by fossil gas manufacturing.
The EIAs for the Norwegian extraction tasks didn’t assess end-use emissions (para 30). Because of this, the permits had been challenged by the NGOs Greenpeace Nordic and Nature and Youth Norway. In January 2024, the Oslo district court docket quashed the permits, ruling that the EIA Directive requires the evaluation of the local weather influence of end-use emissions (para 31). The Norwegian authorities appealed the judgment. The attraction court docket requested an advisory opinion by the EFTA Courtroom, asking whether or not the failure to evaluate end-use emissions violated the necessities of the EIA Directive.
The EIA Directive and local weather change
The EIA Directive requires states to submit tasks which are more likely to have vital environmental results to an EIA earlier than improvement consent is granted. This consists of the evaluation of impacts on quite a lot of elements, together with the local weather. The Directive’s scope may be very broad: it covers direct results in addition to “any oblique, secondary, cumulative, transboundary, short-term, medium-term and long-term, everlasting and short-term, optimistic and adverse results of the venture.” The EIA is meant to offer a complete understanding of a venture’s possible environmental impacts, which must be taken under consideration on the earliest attainable stage of the planning and decision-making course of (recital 2). This requirement operationalises elementary environmental rules of EU regulation, most notably the precautionary precept, the precept of preventive motion, the precept that environmental injury ought to as a precedence be rectified at supply, and that the polluter ought to pay. Furthermore, the supply of complete and significant data on the environmental impacts of a venture is a mandatory situation for efficient public participation, which performs a central position within the EIA Directive. Sure varieties of tasks, listed within the Directive’s Annex I, should all the time be topic to an EIA previous to approval. They embody the large-scale extraction of oil and gas. The Norwegian tasks in query fall inside this class (para 60).
EFTA Courtroom: end-use emissions are an impact of fossil gas extraction
The Courtroom began its evaluation with the remark that there was no disagreement between the events that GHG emissions from burning the extracted fossil fuels are an impact of an extraction venture, so long as this occurs on the venture website itself (e.g., gas flaring). The disagreement solely involved the query of whether or not combustion emissions stop to be an impact of the venture as soon as the extracted fossil fuels are offered to 3rd events and burned elsewhere (para 42). The Courtroom subsequently held that fossil gas extraction is a mandatory precondition for end-use emissions to happen, and described the next causal relationship: “[i]f not for the venture, the embedded greenhouse gases would keep beneath floor” (para 69). Consequently, it clarified that end-use emissions are a possible impact of a fossil gas extraction venture, and should be assessed in an EIA.
Three objections dismissed by the EFTA Courtroom: double counting, different makes use of and web results
The EFTA Courtroom subsequently engaged with, and dismissed three objections put ahead by the Norwegian authorities. The primary objection involved the alleged drawback of double counting of GHG emissions. The extracted fossil fuels undergo intermediate steps resembling transportation and refinement (para 70), and the related infrastructure (pipelines and refineries) should even be topic to EIAs. As these would presumably cowl end-use emissions, the latter shouldn’t be assessed within the context of fossil gas extraction. The EFTA Courtroom rejected this argument: the intention of the EIA Directive is to offer a complete understanding of the venture’s impacts, which incorporates cumulative results produced collectively with different tasks (para 71). The duty to evaluate end-use emissions on the extraction stage just isn’t affected by the truth that they could even be assessed at a later stage (para 71). Furthermore, the EIA doesn’t preclude combustion emissions from being thought-about within the EIAs for a number of tasks (para 72). On condition that the EIA Directive just isn’t involved with attributing accountability for the recognized environmental results, there isn’t a want to stop double counting (para 73). It additionally doesn’t require the environmental results to be in shut temporal or geographical proximity to the venture (para 83). On this context, the EFTA Courtroom made a key remark: the extraction allow determines whether or not end-use emissions of the extracted fossil fuels will finally be launched into the ambiance (para 77). It’s the ultimate second in time when the general public can voice its issues (para 76) and for the federal government to refuse consent, or to set situations (para 77). Offering complete data on the local weather influence of the venture is due to this fact of explicit significance (para 80).
The second objection of the Norwegian authorities was {that a} share of the extracted fossil fuels just isn’t burned, however used for different functions, such because the manufacture of petrochemical or different industrial merchandise (para 86). The Courtroom conceded that the exact amount of GHG emissions related to the extracted fossil fuels relies on the makes use of to which they’re put (para 88). Nonetheless, the truth that the precise amount of end-use emissions is unsure doesn’t preclude their inclusion within the EIA. The possible makes use of of the extracted fossil fuels and the related emissions could be readily recognized, for instance based mostly on accessible statistical data (para 88).
A 3rd objection was that the web (versus gross) local weather influence of the extracted fossil fuels is tough to determine (para 94). This argument is predicated on the reasoning that the fossil fuels extracted from the Norwegian tasks could displace different power merchandise with the next GHG footprint, resembling coal or imported LNG. The EFTA Courtroom rejected the argument, stating that the EIA Directive requires the evaluation of possible vital results of the venture itself, excluding “speculative analyses of knock-on results on different tasks elsewhere” (para 96). An evaluation that’s restricted to web results could allow builders to omit data regarding combustion emissions, which undermines efficient public participation (para 97). Summing up, the failure to evaluate end-use emissions of a fossil gas extraction venture violates the requirement to evaluate vital environmental results below the EIA Directive.
The responsibility of nationwide authorities to revoke or droop allow based mostly on flawed EIA
The EFTA Courtroom additionally addressed the procedural implications of a violation of the duty to evaluate end-use emissions. It held that competent nationwide authorities, together with courts, are required to nullify the illegal penalties of a breach of the EIA Directive (para 103). This will entail revoking or suspending a allow already granted. Underneath sure circumstances, the venture could also be “regularised” (para 108). Nonetheless, this could not supply the involved events the chance to bypass the necessities of the EIA Directive, or to dispense with making use of them, and may stay the exception (para 109). Furthermore, the EFTA Courtroom acknowledged {that a} nationwide court docket can not retroactively dispense with the duty to evaluate environmental results below the EIA Directive, even when it may be proven that the failure to take action didn’t affect the decision-making course of (para 116).
Implications of the EFTA Courtroom’s advisory opinion
An advisory opinion of the EFTA Courtroom doesn’t produce legally binding outcomes, although it’s authoritative in observe. As such, it offers an vital interpretation of the EIA Directive that’s vital each in EFTA international locations and EU Member States.
For nationwide authorities within the EU, the advisory opinion has at the least 4 implications. First, it signifies an rising consensus that the EIA Directive requires end-use emissions of oil and gas extraction tasks to be assessed in an EIA. Notably, the opinion aligns with the findings of the UK Supreme Courtroom judgment in R (Finch on behalf of the Weald Motion Group & Others) v. Surrey County Council (2024) and the Scottish Courtroom of Session relating to the Jackdaw and Rosebanks tasks (2025), each of which interpret the EIA Directive. Given this, nationwide authorities will now not have the ability to ignore end-use emissions within the EIA of fossil extraction tasks.
Second, when confronted with this difficulty, nationwide courts of final occasion should refer it to the CJEU. Whereas the advisory opinion signifies an rising consensus in regards to the scope of the EIA Directive, it additionally highlights that totally different interpretations exist. Consequently, nationwide courts of final occasion should deliver the matter earlier than the CJEU, as per Article 267 TFEU and interpreted in CILFIT (Case 283/81). That is, for instance, of quick relevance for the Dutch Raad van State, earlier than which a case is presently pending that issues an EIA that didn’t assess end-use emissions of a fossil gas extraction venture, amongst different points.
Third, the advisory opinion signifies that an extraction allow that’s based mostly on an EIA that didn’t assess end-use emissions violates EU regulation. Nationwide authorities, together with courts, are required to make sure the total effectiveness of EU regulation. This consists of withdrawing permits based mostly on flawed EIAs, and granting interim aid suspending an extraction allow till the query of the validity of the extraction allow below EU regulation is answered (Factortame I, C-213/89). This difficulty can be of relevance within the just-mentioned Dutch case, the place the Raad van State has denied interim aid.
A fourth implication follows from the discovering that the extraction allow is causal for the overall local weather impacts of the extracted fossil fuels. Nationwide authorities are, because the EFTA Courtroom approvingly quotes the Norwegian Supreme Courtroom, “in full management” of whether or not the embedded GHG emissions will in the end enter the ambiance (para 81). This full management is more likely to set off obligation below numerous authorized regimes. Most importantly, the ECtHR held in KlimaSeniorinnenthat states have an obligation to take efficient motion to stop a rise in GHG concentrations within the ambiance (para 546). The case Greenpeace Nordic and Others v. Norway, presently pending earlier than the ECtHR, particularly addresses the obligations of states in relation to fossil gas extraction. Underneath EU regulation, Member States are required below the responsibility of honest cooperation to not undermine the achievement of the Union’s aims (Article 4(3) TEU), which incorporates its local weather aims. New fossil extraction manifestly makes it harder for the EU to realize its aims, and will due to this fact battle with this responsibility. Furthermore, on essentially the most fundamental stage, Member States are required to take due account of the Union’s aims of their decision-making. Granting a brand new extraction allow with out contemplating its influence on EU local weather coverage is liable to violate the responsibility of honest cooperation.
Conclusion: a puzzle piece in creating authorized accountability for fossil gas extraction
The EFTA Courtroom’s advisory opinion highlights that the choice to authorize the extraction of fossil fuels is causal for the GHG emissions from burning them. This has vital implications relating to the authorized accountability of states: they management the embedded GHG emissions, and are consequently accountable for them. Furthermore, the opinion can be related with regards to contemplating the obligation of fossil gas companies, on condition that their choice to extract fossil fuels, at the side of the allow, can be a mandatory precondition for the embedded emissions to enter the ambiance. The EFTA Courtroom’s advisory opinion thus constitutes an vital puzzle piece within the quest for establishing obligation for fossil gas extraction.
Clemens Kaupa is assistant professor of European regulation on the Vrije Universiteit Amsterdam.
