Beate Sja¦èfjell 6

The Norwegian Constitution gives the people of Norway a legal right to a liveable climate and environment. Professor Beate Sjåfjell explains what this means in terms of what the people can demand of the Norwegian State. The question is whether Norway will comply with this provision or wait to be sued.

  • Beate Sjåfjell, Professor of Law at the University of Oslo Faculty of Law, and Chair of Concerned Scientists Norway

While people today take to the streets in protest in New York, Brasilia, Cape Town, Berlin, Oslo and throughout the entire world, and demand «action, not words» regarding climate change, we can ask the question: What does the Constitution grant us the right to demand from our own Government? In May this year, Article 110b of the Constitution became a strengthened Article 112. The debate regarding whether the provision in the Constitution relating to climate and the environment entails a duty on the state to act is therefore over. The provision now clearly stipulates that the state «must initiate measures» to ensure our right and the rights of future generations to a liveable climate and environment. This means that climate and environmental considerations are mandatory considerations in all sectors.

Norway’s wealth entails stricter obligations

Article 112 of the Constitution sets forth an obligation for the State to achieve results, in other words: the State must do everything in its power, everything necessary, and with all of the means it has at its disposal, to safeguard our right to a liveable climate and environment.

Climate change recognises no national borders. Norway cannot halt global warming by itself. However, Norway can do a great deal. The Norwegian State’s financial muscles place us in a special position in the world. Norway has far greater possibilities for promoting a shift onto a sustainable path internationally than countries with extremely high youth unemployment and stifling budget deficits.

The entire toolbox must be used: legal reform and green taxes

What does Article 112 of the Constitution mean specifically?

The provision calls for a review of the State’s entire «toolbox» of indirect and direct policy instruments. The State’s indirect policy instruments are laws and regulations and taxes and duties.

In an international research project concerning sustainable companies, we have identified opportunities for adjusting the legal infrastructure for business such that the enormous potential for conversion to renewable and environmentally-friendly operations can be released.

With regard to taxes and duties, the Government has taken an important step by establishing a new green tax commission. The green tax commission’s mandate is to establish how taxation can be turned towards activities that impact on the environment and climate and to promote the development and use of environmentally and climate-friendly technology.

The previous green tax commission from the 1990s did not result in any major changes. However, this new commission should. Article 112 of the Constitution is not complied with by establishing committees and commissioning reports, but by concrete actions that promote climate and environmentally-friendly activities and that restrict activities that pollute and harm the climate.

Will dumping mining waste in Norwegian fjords violate the Constitution?

Administrative practices in all sectors must use Article 112 of the Constitution as a guide.

Applications for authorisation to conduct activities that could potentially harm the environment such as disposing of mining waste into Norwegian fjords must be evaluated based on the fundamental tenet that nature’s resources are to be preserved, including for future generations. Decisions must be based on knowledge and in line with the precautionary principle. The fact that such activities have previously been permitted or are strongly desired by the industry cannot be decisive.

The Constitution’s more stringent provision relating to climate and the environment should result in increased awareness of the importance of safeguarding the sustainability of our nature.

Also public procurements must be sustainable

The State’s own investments must also have a shift towards a renewable and environmentally-friendly society as its overarching guideline.

Regulations and practices relating to public procurements are important tools. The EU’s new directive on public procurement, which shall be implemented by 2016, provides a good starting point for the sustainable restructuring of the enormous purchasing power in public procurements.

The duties of the Norwegian state as shareholder

The State’s direct policy instruments must be actively used insofar as these are necessary for ensuring a liveable climate and environment for both ourselves and future generations.

The State is a majority shareholder in large and internationally important Norwegian companies, including Statoil. At the general meeting, the State can, with a two-thirds majority, change the purpose of the company in the articles of association. The State can also use its position at the general meeting to elect boards with the expertise and willingness to turn the companies in a renewable and sustainable direction. As the majority shareholder, the State can further issue instructions to the companies in important individual cases, such as withdrawing Statoil from tar sand projects and ensuring that the company refrains from conducting exploration activities in vulnerable areas in the North.

The majority of known fossil resources must remain under the ground if we are to have any hope of staying within the goal of maximum two degrees warming. It should then be obvious that our oil rich state must refrain from engaging in the most polluting methods of extraction and stay away from the most vulnerable natural areas.

The Constitution requires that the Norwegian State instead uses its financial muscles to promote renewable energy. This could also give Norway the market leaders of tomorrow. There is no intrinsic contradiction between the climate and environmental requirements in the Constitution and the political objective of a sustainable Norwegian economy.

A sustainable investment mandate for Norway’s Government Pension Fund Global

The Norwegian State’s Government Pension Fund Global is the world’s most influential pension fund. In addition to its actual investments being significant, the pension fund is a guiding light for socially responsible investors the world over. If this enormous pension fund is given the mandate to look for renewable energy projects and the most environmentally-friendly businesses, this would be an important contribution in itself.

Converting to renewable energy requires considerable investments, while it is extremely affordable afterwards to produce the energy. The speed at which the energy conversion can take place will therefore greatly depend on someone investing in infrastructure for renewable energy and efficient energy use. Norway can make an important contribution through such investments.

At the same time, this type of new mandate for the pension fund would most likely result in shifting international investments in general in a renewable and sustainable direction through the signalling effect. This would also contribute to safeguarding the basis for our pensions. It does not help much to disperse the pension fund’s investments among companies throughout the entire world if we all head towards the edge of the cliff together.

Pension funds are, by definition, the real long-term investors, while at the same time, required rates of return also lock the managers of these funds into a short-term «business as usual» line. The Norwegian state can change this for its own fund and thereby set a new standard for sustainable investments.

Will Norway comply with its Constitution – or wait to be sued?

Article 112 of the Constitution demands a fundamental review and deep-seated reforms. The alternative is to put the basis for our very existence at stake. Such a fundamental breach of the Constitution should not be ignored.

Lawsuits based on such grounds have been filed against the state, not just in the USA, but also in Africa, Asia and Europe. Is that what needs to be done in Norway?

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– See more at: http://cs-n.org/2014/09/article-112-of-the-constitution-demands-action-not-words/#more-1058

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