The Supreme Court’s decision does not directly and immediately nullify the licenses held by the wind farm owner. The Court’s opinion that the license decisions are invalid does not form part of the judgment conclusion. The Supreme Court’s decision is that an appraisement dispute is dismissed from the courts. This means that the courts will not determine the level of compensation to be paid to the reindeer herders for expropriation of herding rights. The reason is that the project does not have a valid legal basis for expropriation.
In our view, it is not obvious what the consequences will be for Storheia and Roan wind farms. We believe both the Ministry of Petroleum and Energy, the wind farm owners and reindeer herders will need some time – and should take the necessary time – to find a way out of the current difficult situation. Two levels of regulatory authorities have concluded that the projects provide benefits to society as a whole that clearly outweigh the negative impacts for reindeer herding interests, after considerable licensing processes which spanned many years and involved a great number of interested parties. Subsequently, two instances of the Norwegian courts have concluded that the licenses and expropriation permits are valid, and awarded compensation. During that court process, the wind farms were built, according to common practice in expropriation cases.
We now know the final legal conclusion: The projects, such as they are, without satisfactory mitigating measures, violate the cultural rights of the Sámi reindeer herders.
At the same time, we know that 151 wind turbines with an annual production of close to 2 TWh of renewable electricity, are in full operation. They are a presence in those Fosen mountains, among four other large wind farms. The impact they have on the natural environment and for the reindeer, is a fact of life, and not easily reversed.
The judgment states that it is not for the courts to come up with mitigating measures; such measures must be decided by the license authorities or the developer. We will refrain from speculation, other than to state that a full dismantling of the two wind farms is only one alternative among a range of possible outcomes.
Finally: Even if it is clear that the Fosen decision will be of great significance in other projects in reindeer herding areas in the future, it is inaccurate to state that it shuts the door for future wind power development in such areas. The decision is based on a thorough examination of facts pertaining to the Fosen development specifically, where the Court concluded that the two wind farms cause significant loss of important pasture areas and threaten the very existence of reindeer herding on the Fosen peninsula. The Court also refrained from a balancing of the interests of reindeer herders against the public’s interest in a clean and healthy environment, due to specific circumstances in the licensing process for Fosen.
In future cases, the Fosen decision will be the go-to source for legal analysis. But the facts will need to be examined individually in all cases, and mitigating measures will be a key concept.