It is uncontroversial that the climate impact of new oil and gas extraction projects must be assessed before states can grant a permit. A more controversial question is whether this requirement is limited to greenhouse gas (GHG) emissions that are directly emitted by these installations, or whether it extends to emissions caused by the combustion of the extracted fuels by end users. According to a recent advisory opinion by the EFTA Court (Norway v Greenpeace and Nature and Youth Norway, E-18/24), handed down on 21 May 2025, the latter is the case. The decision provides important guidance on the application of the Environmental Impact Assessment (EIA) Directive (2011/92/EU) to fossil fuel extraction, and has major implications for ongoing and future permitting procedures across Europe. It also forms an important puzzle piece in the quest for legal accountability for the climate impacts of fossil fuel extraction, as this contribution seeks to show.
The Norwegian oil and gas extraction projects and their climate impact
The case concerns extraction permits that Norway granted for three oil and gas projects in the North Sea (paras 27-29). Two of them are already in operation, while the third is scheduled to start production in 2027. The production yield of these fields is expected to be 850 million barrels of oil equivalents, which equals 460 million tons of CO2 emissions. To compare: the total annual CO2 emissions of Norway are 44 million tons.
The combustion of fossil fuels (oil, gas, coal) is the main source of GHG emissions, which cause climate change. The Paris Agreement seeks to prevent dangerous climate change, aiming to limit global heating to well below 2°C, and close to 1.5°C. To achieve this goal, massive emission reductions are necessary, which essentially require a quick phase-out of fossil fuel use. Once extracted, most fossil fuels will be burned, which means that new fossil fuel extraction is essentially incompatible with the Paris objectives. Moreover, new extraction is also not necessary to meet future energy needs, as the International Energy Agency’s Net Zero by 2050 Roadmap shows. Nonetheless, several governments, including Norway, are currently planning to produce more than double the amount of fossil fuels that would be consistent with the 1.5°C goal in 2030, and more than triple in 2050.
The extraction of fossil fuels causes GHG emissions at all points of the value chain: this includes emissions from the installation itself, for example from running the machinery, gas venting or flaring. These emissions are termed “direct” or “scope 1 emissions.” It also includes downstream emissions, most notably emissions from burning fossil fuels by end users. The latter, also known as “scope 3 emissions”, make up 80% or more of total GHG emissions caused by fossil fuel production.
The EIAs for the Norwegian extraction projects did not assess end-use emissions (para 30). For this reason, the permits were challenged by the NGOs Greenpeace Nordic and Nature and Youth Norway. In January 2024, the Oslo district court quashed the permits, ruling that the EIA Directive requires the assessment of the climate impact of end-use emissions (para 31). The Norwegian government appealed the judgment. The appeal court requested an advisory opinion by the EFTA Court, asking whether the failure to assess end-use emissions violated the requirements of the EIA Directive.
The EIA Directive and climate change
The EIA Directive requires states to submit projects that are likely to have significant environmental effects to an EIA before development consent is granted. This includes the assessment of impacts on a variety of factors, including the climate. The Directive’s scope is very broad: it covers direct effects as well as “any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the project.” The EIA is supposed to provide a comprehensive understanding of a project’s likely environmental impacts, which should be taken into account at the earliest possible stage of the planning and decision-making process (recital 2). This requirement operationalises fundamental environmental principles of EU law, most notably the precautionary principle, the principle of preventive action, the principle that environmental damage should as a priority be rectified at source, and that the polluter should pay. Moreover, the provision of comprehensive and meaningful information on the environmental impacts of a project is a necessary condition for effective public participation, which plays a central role in the EIA Directive. Certain types of projects, listed in the Directive’s Annex I, must always be subject to an EIA prior to approval. They include the large-scale extraction of oil and gas. The Norwegian projects in question fall within this category (para 60).
EFTA Court: end-use emissions are an effect of fossil fuel extraction
The Court started its assessment with the observation that there was no disagreement between the parties that GHG emissions from burning the extracted fossil fuels are an effect of an extraction project, as long as this happens at the project site itself (e.g., gas flaring). The disagreement only concerned the question of whether combustion emissions cease to be an effect of the project once the extracted fossil fuels are sold to third parties and burned elsewhere (para 42). The Court subsequently held that fossil fuel extraction is a necessary precondition for end-use emissions to occur, and described the following causal relationship: “[i]f not for the project, the embedded greenhouse gases would stay below ground” (para 69). Consequently, it clarified that end-use emissions are a likely effect of a fossil fuel extraction project, and must be assessed in an EIA.
Three objections dismissed by the EFTA Court: double counting, other uses and net effects
The EFTA Court subsequently engaged with, and dismissed three objections put forward by the Norwegian government. The first objection concerned the alleged problem of double counting of GHG emissions. The extracted fossil fuels go through intermediate steps such as transportation and refinement (para 70), and the relevant infrastructure (pipelines and refineries) must also be subject to EIAs. As these would presumably cover end-use emissions, the latter should not be assessed in the context of fossil fuel extraction. The EFTA Court rejected this argument: the aim of the EIA Directive is to provide a comprehensive understanding of the project’s impacts, which includes cumulative effects produced jointly with other projects (para 71). The obligation to assess end-use emissions at the extraction stage is not affected by the fact that they may also be assessed at a later stage (para 71). Moreover, the EIA does not preclude combustion emissions from being considered in the EIAs for multiple projects (para 72). Given that the EIA Directive is not concerned with attributing responsibility for the identified environmental effects, there is no need to prevent double counting (para 73). It also does not require the environmental effects to be in close temporal or geographical proximity to the project (para 83). In this context, the EFTA Court made a key observation: the extraction permit determines whether end-use emissions of the extracted fossil fuels will eventually be released into the atmosphere (para 77). It is the final moment in time when the public can voice its concerns (para 76) and for the government to refuse consent, or to set conditions (para 77). Providing comprehensive information on the climate impact of the project is therefore of particular significance (para 80).
The second objection of the Norwegian government was that a share of the extracted fossil fuels is not burned, but used for other purposes, such as the manufacture of petrochemical or other industrial products (para 86). The Court conceded that the precise quantity of GHG emissions associated with the extracted fossil fuels depends on the uses to which they are put (para 88). However, the fact that the exact quantity of end-use emissions is uncertain does not preclude their inclusion in the EIA. The likely uses of the extracted fossil fuels and the associated emissions can be readily identified, for example based on available statistical information (para 88).
A third objection was that the net (as opposed to gross) climate impact of the extracted fossil fuels is difficult to establish (para 94). This argument is based on the reasoning that the fossil fuels extracted from the Norwegian projects may displace other energy products with a higher GHG footprint, such as coal or imported LNG. The EFTA Court rejected the argument, stating that the EIA Directive requires the assessment of likely significant effects of the project itself, excluding “speculative analyses of knock-on effects on other projects elsewhere” (para 96). An assessment that is limited to net effects may enable developers to omit information concerning combustion emissions, which undermines effective public participation (para 97). Summing up, the failure to assess end-use emissions of a fossil fuel extraction project violates the requirement to assess significant environmental effects under the EIA Directive.
The duty of national authorities to revoke or suspend permit based on flawed EIA
The EFTA Court also addressed the procedural implications of a violation of the obligation to assess end-use emissions. It held that competent national authorities, including courts, are required to nullify the unlawful consequences of a breach of the EIA Directive (para 103). This may entail revoking or suspending a permit already granted. Under certain circumstances, the project may be “regularised” (para 108). However, this should not offer the concerned parties the opportunity to circumvent the requirements of the EIA Directive, or to dispense with applying them, and should remain the exception (para 109). Moreover, the EFTA Court stated that a national court cannot retroactively dispense with the obligation to assess environmental effects under the EIA Directive, even if it can be shown that the failure to do so did not influence the decision-making process (para 116).
Implications of the EFTA Court’s advisory opinion
An advisory opinion of the EFTA Court does not produce legally binding outcomes, though it is authoritative in practice. As such, it provides an important interpretation of the EIA Directive that is significant both in EFTA countries and EU Member States.
For national authorities in the EU, the advisory opinion has at least four implications. First, it indicates an emerging consensus that the EIA Directive requires end-use emissions of oil and gas extraction projects to be assessed in an EIA. Notably, the opinion aligns with the findings of the UK Supreme Court judgment in R (Finch on behalf of the Weald Action Group & Others) v. Surrey County Council (2024) and the Scottish Court of Session regarding the Jackdaw and Rosebanks projects (2025), both of which interpret the EIA Directive. Given this, national authorities will no longer be able to ignore end-use emissions in the EIA of fossil extraction projects.
Second, when faced with this issue, national courts of last instance must refer it to the CJEU. While the advisory opinion indicates an emerging consensus about the scope of the EIA Directive, it also highlights that different interpretations exist. Consequently, national courts of last instance must bring the matter before the CJEU, as per Article 267 TFEU and interpreted in CILFIT (Case 283/81). This is, for example, of immediate relevance for the Dutch Raad van State, before which a case is currently pending that concerns an EIA that failed to assess end-use emissions of a fossil gas extraction project, among other issues.
Third, the advisory opinion indicates that an extraction permit that is based on an EIA that failed to assess end-use emissions violates EU law. National authorities, including courts, are required to ensure the full effectiveness of EU law. This includes withdrawing permits based on flawed EIAs, and granting interim relief suspending an extraction permit until the question of the validity of the extraction permit under EU law is answered (Factortame I, C-213/89). This issue is also of relevance in the just-mentioned Dutch case, where the Raad van State has denied interim relief.
A fourth implication follows from the finding that the extraction permit is causal for the total climate impacts of the extracted fossil fuels. National authorities are, as the EFTA Court approvingly quotes the Norwegian Supreme Court, “in full control” of whether the embedded GHG emissions will ultimately enter the atmosphere (para 81). This full control is likely to trigger legal responsibility under various legal regimes. Most significantly, the ECtHR held in KlimaSeniorinnenthat states have a duty to take effective action to prevent an increase in GHG concentrations in the atmosphere (para 546). The case Greenpeace Nordic and Others v. Norway, currently pending before the ECtHR, specifically addresses the obligations of states in relation to fossil fuel extraction. Under EU law, Member States are required under the duty of sincere cooperation not to undermine the achievement of the Union’s objectives (Article 4(3) TEU), which includes its climate objectives. New fossil extraction manifestly makes it more difficult for the EU to achieve its objectives, and may therefore conflict with this duty. Moreover, on the most basic level, Member States are required to take due account of the Union’s objectives in their decision-making. Granting a new extraction permit without considering its impact on EU climate policy is liable to violate the duty of sincere cooperation.
Conclusion: a puzzle piece in creating legal accountability for fossil fuel extraction
The EFTA Court’s advisory opinion highlights that the decision to authorize the extraction of fossil fuels is causal for the GHG emissions from burning them. This has important implications regarding the legal accountability of states: they control the embedded GHG emissions, and are consequently responsible for them. Moreover, the opinion is also relevant when it comes to considering the legal responsibility of fossil fuel corporations, given that their decision to extract fossil fuels, in conjunction with the permit, is also a necessary precondition for the embedded emissions to enter the atmosphere. The EFTA Court’s advisory opinion thus constitutes an important puzzle piece in the quest for establishing legal responsibility for fossil fuel extraction.
Clemens Kaupa is assistant professor of European law at the Vrije Universiteit Amsterdam.