NORWAY Trends and Developments Contributed by: Andreas Stang Lund, Per Conradi Andersen, Alexander Daae and Emilie Wilberg, Kvale Advokatfirma DA
the financial risk associated with the judicial review of environmental decisions. Under Norwegian law, the general rule is set out in Section 20-2 (1) of the Dispute Act: the successful party is entitled to full compensation for its litigation costs. This rule, however, constitutes only a starting point. Courts may reduce costs that are considered unnecessary (Section 20-5), or may apportion costs where the outcome does not amount to a complete victory. Section 20-2 (3) further allows for the full or partial exemption from liability for the prevailing party’s costs where “weighty reasons make it reasonable”. The provision highlights, in particular, the uncertainty of the case, the conduct of the parties, the welfare significance of the dispute and the balance of power between the parties. At the same time, it leaves con- siderable room for a discretionary overall assessment. In environmental cases, courts often place significant weight on the public importance of the issues raised, the nature of environmental protection interests and the fact that claims are brought by non-profit organi- sations pursuing public interest objectives. It is none- theless consistently emphasised that these elements alone are not sufficient to justify a departure from the main rule on costs; additional qualifying circumstanc- es are required. The Aarhus Convention plays a key role in this con- text. Pursuant to Article 9 (4), access to judicial review of environmental decisions must not be “prohibitively expensive”. Norwegian law proceeds on the basis that the Dispute Act’s cost rules allow for practice con- sistent with the Convention, while requiring a con- crete assessment of whether the overall cost burden appears objectively unreasonable. Recent case law nevertheless indicates that the inter- action between the Dispute Act’s cost regime and the
Aarhus Convention is not fully settled. In connection with interim relief proceedings related to the Førdef- jorden case, the Court of Appeal concluded that the statutory conditions for mitigation under Section 20-2 (3) were not met. At the same time, the court sub- stantially reduced the cost liability by direct reference to the Aarhus Convention and the requirement that environmental litigation should not be prohibitively expensive. The judgment illustrates that, in certain circumstances, the Convention may be applied as an independent corrective to the national cost rules. State versus private actors In practice, the state is affected to a limited extent by such cost allocations. Cost claims submitted by the state are often lower, and courts tend to be reluctant to require private parties to cover the state’s costs in cases of a principled nature. For private actors drawn into climate litigation, the situation is different. Such actors typically carry out activities that are presumed lawful and socially beneficial, often in reli- ance on permits validly granted by public authorities. When cost risk in environmental litigation is effectively shifted, it raises questions as to how far the interests of environmental organisations should extend – and whether private parties are, in practice, being required to subsidise environmental judicial review that is, at its core, directed against the state. Climate litigation will undoubtedly continue to shape Norwegian legal development. At the same time, pro- cedural frameworks are becoming increasingly impor- tant. A balanced and well-reasoned application of the cost rules is essential to legal certainty – for environ- mental organisations, the state and private actors alike. Discretionary assessments of reasonableness must be clearly anchored in the legal framework and in the specific circumstances of each case. Otherwise, outcomes may appear reasonable for one party while unduly burdensome for another.
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