«This is a major victory, and it means that the judgement from the Oslo District Court was wrong. We now look forward to meeting the state in the Court of Appeal to put a final stop to the dumping of mining waste in Førdefjorden,» says Truls Gulowsen, leader of Friends of the Earth Norway.

«We are making environmental history here. Not only because we can prevent the destruction of Førdefjorden, but also because we have helped uphold the ban on pollution of fjords, rivers, and lakes throughout the EU area,» says Sigrid Hoddevik Losnegård, leader of Young Friends of the Earth Norway.

The EFTA Court’s judgement is an advisory opinion and will carry significant weight when the Fjord Lawsuit is heard in the Borgarting Court of Appeal from June 10–12 this year. Friends of the Earth Norway and Young Friends of the Earth Norway have sued the Norwegian government over its permit to dump up to 170 million tons of mining waste into Førdefjorden in the western part of Norway. The environmental organizations lost the case in the Oslo District Court and appealed to the Court of Appeal. Before the case is heard there, the dispute was presented to the EFTA Court on October 16 last year. The court has now ruled on whether the Norwegian government’s justification for allowing pollution of a clean and biologically rich fjord aligns with the EU Water Framework Directive.

Overriding Public Interest

According to the EU Water Framework Directive, polluting a water resource like Førdefjorden is prohibited. If such pollution is to be permitted, strict conditions must be met. The project must serve an overriding public interest, as stated in Article 4, Section 7 of the directive. When the permit was granted, the government’s justification was that the mining operation would generate revenue for owners, employees, and the public sector. The environmental organizations have consistently argued that the government’s interpretation was incorrect, and during the hearing at the EFTA Court on October 16, they received support from both the European Commission and the EFTA Surveillance Authority (ESA).

«It can’t be a case of money talks (…) Profitability is not an issue for overriding public interest,» said lawyer Lorna Armati from the European Commission in her statement.

Lise Helset Eide

The EFTA Court’s Ruling

The EFTA Court has now ruled that profitability does not constitute an overriding public interest. The judgement is not legally binding but serves as an advisory opinion that must be taken into account in the Court of Appeal. This strengthens the environmental organizations’ chances of having the permit for mining waste dumping declared invalid. Meanwhile, the mining company Nordic Mining is proceeding with its operations. On December 23, the company announced in a stock exchange report that the first mineral concentrates had been produced.

The judgement from the Oslo District Court, published on January 10, 2024, stated that the court did not find sufficient grounds to conclude that the government’s justification fell outside the Water Framework Directive’s provisions on overriding public interest. The EFTA Court has now ruled that this interpretation is incorrect.
«This shows that we had good reason to bring this case to the EFTA Court. The government violated the Water Framework Directive when it granted the permit for mining waste dumping, and the District Court’s ruling was based on the same incorrect interpretation. We now expect the Court of Appeal to correct this error and declare the permit invalid,» says Gulowsen.

«We are pleased that we have achieved full support for our argumentation in the EFTA Court,» says Amund Noss, the environmental organizations’ lawyer at CMS Kluge.

The EFTA Court’s ruling will also have significant implications for more than 160,000 bodies of water, waterways, and fjords across the EU, as its interpretation will serve as a precedent in cases concerning water pollution.

«We are incredibly grateful for the ruling from the EFTA Court, as well as for the enormous support from the overwhelming majority of people in Norway, from expert institutions, and from major industry organizations. We now look forward to the Borgarting Court of Appeal taking the EFTA ruling into account in the appeal hearing in June, ensuring that the permit for mining waste disposal is declared invalid and subsequently withdrawn. It can never be in the public interest or legally justifiable to pollute Førdefjorden with mining waste dumping. This is one of Norway’s last clean and fish-rich fjords, home to renewable resources that should be protected forever,» says Anne-Line Thingnes Førsund from Friends of the Earth Norway in Sogn og Fjordane.