Supreme Court of Norway Declares ‘Fosen Vind’ Project Illegal; Revokes Power Licence

By Diego Luis Alonso Massa, Dean Ehrlich, 14 October 2021

On 11 October 2021, the Supreme Court of Norway found that Norway had violated the rights of the Sámi people when it granted a licence for the construction of the Fovsen Njaarke, Storheia and Roan wind farms.

As a consequence, it declared both the wind power licence and the expropriation decision invalid.

TAO has written about the decade-long permitting and compensation dispute regarding the impact of the Storheia Wind Power Project on Sami communities here, while an official English translation is expected to be published on the Supreme Court of Norway’s website soon.

Although the community’s first legal challenge was reportedly rejected on 30 August 2021, when a Grand Chamber of the Supreme Court considered the question of whether the wind farms violated the reindeer herders' rights under Article 27 of the International Covenant on Civil and Political Rights (ICCPR), it unanimously found that the affected winter pastures are effectively lost for reindeer husbandry, significantly jeopardising the reindeer herder community’s survival and their ability to practice their culture – unless remedial actions are taken.

The Supreme Court of Norway, while noting that the importance of the transition to renewable energy generation, found that less invasive development choices were available that would have lessened the impact on the reindeer herders' cultural rights. In doing so, it rejected the Court of Appeal’s earlier ruling that found that the right to cultural enjoyment had not been violated due to the significant compensation the affected communities were paid to fence-in the reindeer during winter and the obligation on reindeer herders to adapt. 

According to a report on the Sami Council’s website, it now expects Norway to remove the wind power plants as a consequence for failing to suspend construction despite pending court proceedings. However, BNN Bloomberg reports that turbines will continue to spin while Norway’s Petroleum and Energy Ministry and other stakeholders consider the ruling and determine a course of action.

Storheia, which began operating in February 2021, is Norway’s largest wind farm and Europe’s largest onshore wind power project. Storheia is part of Nordic Wind Power’s ‘Fosen Vind’ project. Nordic Wind Power is a partnership between Swiss energy company BKW Energie AG (40%) and Norwegian utilities, TrønderEnergi (7.9%) and Statkraft (51.1%).

The exit clauses in the event of a violation of human rights standards that BKW introduced into its code of conduct for third-party infrastructure projects following an OECD mediated settlement with Swiss NGO ‘Society for Threatened Peoples’ are unlikely to apply to the ‘Fosen Vind’ project given how far construction had advanced at that stage.

The ruling will undoubtedly have important consequences for current and future wind turbine installation projects in the region. It has reportedly caused BKW to carefully consider its investments in Norway. And, the question of whether this could trigger a claim under the EFTA Convention and others like it remains.