The Nature Conservation Association and Nature and Youth are appealing the verdict in the so-called “fjord lawsuit” regarding the disposal of mine waste in the Førdefjord. It is clear after an extraordinary national board meeting of the Nature Conservation Association this afternoon. The appeal is unanimous. In the first judgment in the Oslo District Court on 10 January, the two environmental organizations lost on all points. The plaintiffs were also ordered to pay the legal costs for the state of NOK 1.4 million, including a disputed flight ticket for NOK 122,000. Earlier in the week, therefore, the leader of the Nature Conservation Association, Truls Gulowsen, expressed that it was uncertain whether the organization could “take the chance of another loss”. – It is incredibly expensive and resource-intensive to bring this case to court. For us, this is a big financial risk, he said. In total, the environmental organizations spent NOK 2.2 million on the case in the first round. The price tag has raised questions about whether the cost of trying environmental cases in Norwegian courts violates our international obligations. The Aarhus Convention states that the people have “the right to have decisions that have an effect on the environment tried by a competent review body without this being prohibitively expensive”. – The government is misleading the UN Marius Gulbranson Nordby, who is a member of the International Jurist Commission, believes that the price for testing Norwegian environmental decisions is “above the threshold set by the Aarhus Convention” and that the governing powers are misleading the UN by using numbers. The background is the reporting to the Aarhus Convention in 2021. 10 out of 41 countries reported that the environmental organizations had a problem with high legal costs. Norway was not among them, and wrote instead: “If the case is not resolved there or if it is brought before the district court directly, there will be a cost of NOK 5,125 if the main hearing is scheduled for one day. In addition to the court fee, there are side costs, any legal costs, and the cost of legal assistance.” (page 30) In a commentary in Harvest Magazine, Nordby writes that “the estimate that a trial in Norwegian courts costs NOK 5,000 is so far from the truth that it seems dishonest. Such a casual handling of the truth illustrates a nonchalant attitude towards obligations in the environmental field in Norway.” Norway differs from Denmark, Finland and Sweden in that we do not have the opportunity for independent, quick and reasonable review of decisions made by the directorate, ministry or the government. Since the judgment in the Oslo District Court, 2,398 people have registered with the Nature Conservation Association, which now has 39,500 members. Photo: Torbjørn Brovold / news – It’s a legal certainty problem The government-appointed Judicial Commission went through 6,000 district court judgments in the period 2009-2018, and found that the costs of the case almost doubled (up 92 per cent). The report is now on the table of the government, which has a clear desire to reduce the level of costs in Norwegian courts (see below). The Ministry of Climate and the Environment responds Ragnhild Sjoner Syrstad, State Secretary in the Ministry of Climate and the Environment – It is important that access to the court is real. The government has therefore generally been concerned that the level of costs in cases before the courts must be reduced. This was also pointed out by the Judicial Commission. The Ministry of Justice and Emergency Preparedness is following up on this report. In general, the party that wins a court case has the right to have its necessary costs reimbursed by the other party. Anyone who takes a case to the courts, both in the environmental area and in other areas of law, may therefore find themselves having to cover the costs for the other party if they lose the case. A party only has the right to have its “necessary costs” covered, and it is the court that decides what is necessary. The district court has made these assessments, for example, in the Engebø case. Norwegian courts are familiar with the Aarhus Convention. He takes the courts into account when they decide whether the person who loses a case must nevertheless be exempt from paying the legal costs to the other party in whole or in part. This was also done by the district court in the Engebø case. What is “prohibitively” expensive must be seen in the light of the scope of the dispute. Ragna Aarli is a professor at the Faculty of Law in Bergen and was a member of the Judicial Commission. – The cost level in civil cases is generally very high. It is a legal certainty problem that does not only apply to environmental matters, she says. However, she does not want an independent environmental appeals board based on the Danish model. – I think it’s a shame if important cases have to be taken out of the courts because of the price tag. Then it is rather the case management that should be done something about. With us, the parties have to pay for lengthy oral negotiations in court, which are carried out far more concentratedly in our neighboring countries. With the Aarhus Convention as the basis, the environmental organizations were spared part of the costs (300,000 NOK) in the district court. Photo: Terje Pedersen / NTB – The expenses went to lawyers, not expensive plane tickets. In the district court, the judge pointed out that the environmental organizations did not do enough to limit the case, and that it became more extensive (expensive) than it needed to be. Henrik Vaaler at the Government Attorney represented the state in the first round of the fjord lawsuit. He shares the assessment that Norwegian lawsuits are too expensive, but adds that the environmental organizations have themselves to thank for the fact that the fjord lawsuit did not become more reasonable. – That they have demanded compensation for 2,160 lawyer hours just for the district court to win. By comparison, the state has required 720 hours. So yes, the state is concerned that the costs of proceedings for Norwegian courts must be reduced. – But then we have to look at what is driving them up – scope and hourly rate for the lawyers – and the responsibility for both lies in this case with the environmental organizations themselves, says Vaaler. To this, Truls Gulowsen, manager of the Nature Conservation Association, has the following comment: – It would have been interesting to hear what the Government Attorney thinks was actually worth discussing in court, as their position throughout was that all our arguments were irrelevant. Head of Nature and Youth, Gytis Blaževičius, adds: – The difference between us and the state is that our expenses went to lawyers and knowledge acquisition, not expensive plane tickets that could be a Zoom call. – The environmental organizations lose control of their legal costs Ole Kr. Fauchald, head of the Department of Public Law (UiO) – If the environmental organizations have large costs from a judgment in the district court, it may in practice be impossible for them to appeal the case to the lower court if they lose the case is lost. If they win the case in the district court, there is a great risk that the state will appeal. This means that the environmental organizations lose control of their legal costs, and that in the worst case they may risk having to give up the case. The cost level can be reduced by stricter administration of the case on the part of the court, for example by restricting access to participate in the case as party assistants, use of witnesses and experts, and also setting aside less time for oral negotiations. The court can also set short deadlines for the presentation of case papers, and enforce them strictly. In addition to reducing the costs of legal proceedings, the appointment of an independent environmental appeals board will give the environment in Norway legal certainty at a level that corresponds to what the environment has in other Nordic countries. Christian Eriksen, Bellona – There can be great value in trying environmental issues before the court, and there must be realistic access to that. We live in a time where changes must happen very quickly, and where politics and legislation, nationally and internationally, do not always move in step. When we in Norway have committed ourselves to conventions and targets, but Norwegian politicians do not follow through or prioritize it, it is organizations and individuals who must challenge them. The state must be able to accept such a challenge, and make arrangements for it. Hans Petter Graver, professor at the Faculty of Law (UiO) – Compared to many other countries, it is expensive to submit public decisions to the courts. But as soon as it is a private person who is sued, for example a company, litigation potentially costs a lot in most countries. The Årshus convention provides an argument that perhaps we should have had special rules which meant that the court could exempt from responsibility for costs more often than today. Perhaps one should consider an addition to the rule on responsibility for costs that said something to the effect that the court should place particular emphasis on whether the case concerns the legality of measures that may have significant effects on the environment. Gytis Blaževičius, head of Nature and Youth – It is clear that we could limit the costs by limiting the number of points on which we went to lawsuit – but that would also have limited the legal basis for the lawsuit. Then I note that the judge thinks the case should also have been defined legally, but we who have worked on this case know that many mistakes have been made in the administration along the way, and we believe that all these mistakes must be dealt with by a court. Alternatively, there could have been one lawsuit for each regulatory breach, but that would have benefited no one. Frode Pleym, head of Greenpeace Norway – The costs are totally out of control with first class tickets here and consultant reports there. It is a serious democratic problem that civil society is intimidated from confronting the state and companies in court. The Årshus convention must ensure that the population can take cases to court without it being “prohibitively expensive”. I think most people can see that it is very expensive now. Jon Wessel-Aas, leader of the Bar Association – We have advocated that, as the state has a duty to ensure that citizens have access to enforce their fundamental rights through trials in independent courts, it should be considered to introduce rules that make citizens to a greater extent than today, can have the costs of legal assistance covered by the public authorities. It could be, for example, that independent of a purely financial needs test, costs could be covered in cases that would clarify fundamental questions about fundamental rights for many others as well. There would also be a potential rationalization benefit for society in such an arrangement, in that one case solves questions for many. Eskil Vik Urdal, daily manager of Juss-Buss – It is a huge problem that you cannot try your cases in court because of the risk of being sentenced to court costs. And it is clear that an administrative court would contribute to more low-threshold, efficient and cheap review of administrative decisions. At the same time, there are a number of legal assessments that must be the same or similar across legal areas. If you have special courts or tribunals that do not talk to each other, the practice around these assessments can be different. This has been seen, among other things, with the assessment of the child’s best interests in immigration law compared to child welfare law. It is important for the competence of the court that cases are brought in from different areas of law, so that you get a correct assessment of that type of question. Because of this, I am unsure whether an administrative court is the right way to go, but it is important that one way or another make it easier to have administrative decisions reviewed. Marius Gulbranson, member of the International Commission of Jurists, department Norway – The judgment in the fjord lawsuit involves legal costs which are clearly problematic in light of Norway’s international obligations under the Aarhus Convention. The situation is made worse by the fact that we are talking about a case that tested important questions about Norway’s fulfillment of requirements in EEA law and therefore has a societal interest far outside the complex of cases in question. Our closest neighboring countries have other, and far cheaper, schemes than Norway. There can be a lot to learn here. Henrik Vaaler at the Government Attorney says the environmental organizations have themselves to thank for the fact that the fjord lawsuit did not become more legal. Photo: Simen Meistad Hermansen / news
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Miljørørsla appeals the Førdefjord judgment – news Vestland
