The Arctic Ocean is the smallest of the world’s five major oceans, with an area of about six million square miles. Despite its size, the Arctic Ocean is a central point of convergence in the contest over the environment and its resources. On one side of the spectrum are environmentalists seeking to preserve the Arctic and its resources by restricting human activities. On the other side are commercial interests seeking to expand Arctic resource development. In between are sustainability advocates seeking to use resources in moderation to allow for regeneration and future use. From the authors’ perspective, it is impractical to bar development of the Arctic Ocean entirely because the potential benefits, in the form of low-cost energy, abundant food stores, and maritime transportation, are necessary for society to continue meeting growing population demands. Alternatively, unfettered commercialization poses a clear and present danger to the Arctic’s irreplaceable natural balance and beauty. As much as human progress demands the Arctic Ocean’s resources, future generations demand a healthy Arctic Ocean.
It falls on governments to establish and develop pragmatic Arctic policies to balance commercial and environmental interests. To find this balance, nations and stakeholders from across the ideological spectrum advocate for a Blue Economy philosophy. There is no one definition for Blue Economy, but, for the purposes of this article, we use the Center for the Blue Economy’s definition: “the overall contribution of the oceans to economies, the need to address the environmental and ecological sustainability of the oceans, and the ocean economy as a growth opportunity for both developed and developing countries.” United Nations, Blue Economy Definitions. Using this definition, this article will compare the United States’ and Norway’s success implementing Blue Economy policies in three crucial economic sectors: fisheries, maritime shipping and transportation, and offshore energy. Finally, this article will highlight a notable legal challenge to each nation’s domestic Arctic policy and its possible effect on Blue Economy implementation.
The term “Blue Economy” was popularized after the 2012 Rio+20 United Nations Conference on Sustainable Development, where many felt the term “green economy” did not adequately consider economies built on oceanic and coastal resources. John Lesperance, The Blue Economy: Origin and Concept, Commw. of Learning (June 6, 2016). What differentiates the Blue Economy from other similar methodologies is its insistence on the ocean’s environmental, economic, and social sustainability. This approach contrasts with former and contemporary analogous movements in that the Blue Economy views the ocean holistically, rather than through a pure environmentalist or industrialist lens. Andreas Østhagen et al., Blue Governance, AlaskaNOR (2022) [Blue Governance].
The Blue Economy first achieved international prominence in 2015 when all United Nations members adopted the 2030 Agenda for Sustainable Development. The United Nations’ Department of Economic and Social Affairs notes that the Blue Economy “concept seeks to promote economic growth, social inclusion and preservation or improvement of livelihoods while at the same time ensuring environmental sustainability—all issues integral to the 2030 Agenda.” United Nations, Diving into the Blue Economy. The inaugural 2018 Sustainable Blue Economy Conference addressed the 2030 Agenda for Sustainable Development as part of a theme of “The Blue Economy and the 2030 Agenda for Sustainable Development.” The event brought together more than 18,000 participants from 184 countries and culminated with 62 nations committing to improve sustainable ocean practices. See Suzi Malan et al., Summary Report, 26–28 November 2018: Sustainable Blue Economy Conference, IISD Earth Negot. Bull.
The Arctic Ocean comprises the waters surrounding the North Pole within an approximate circle latitude of 66.34° North (i.e., the Arctic Circle). A substantial portion is permanently frozen, giving the region a desolate, unforgiving quality that deterred human exploration for centuries. As a result of those hazards, nations and businesses viewed the Arctic Ocean’s commercial viability dubiously. However, mapping, technology, and equipment developments have since diminished those risks. The discovery of vast quantities of oil and gas sources made the once-quiet region a hive of exploration and development. However, only eight countries have access to the Arctic and a right to its resources. These are “the United States (Alaska), Canada, Russia, Norway, Denmark (by virtue of Greenland, a member country of the Kingdom of Denmark), Finland, Sweden, and Iceland,” with an even smaller subset composed of “the United States, Canada, Russia, Norway, and Denmark (by virtue of Greenland)” possessing coasts abutting Arctic Ocean waters. Ronald O’Rourke et al., Cong. Rsch. Serv., R41153, Changes in the Arctic: Background and Issues for Congress at 2 (2019).
In 1867, the United States became an Arctic country when it acquired the Alaskan territory from the Russian Empire. The United States refrained from creating a central comprehensive policy for its Arctic region until passage of the Arctic Research and Policy Act of 1984. Pub. L. No. 98-373, 98 Stat. 1242 (1984). This legislation created the Arctic Research Commission to establish an integrated national Arctic research policy based on Congress’s finding, in part, that “the Arctic, onshore and offshore, contains vital energy resources that can reduce the Nation’s dependence on foreign oil and improve the national balance of payments.” Id. § 102. Since then, the United States’ position on Arctic Ocean commercialization has ebbed and flowed. Environmental movements centered on protecting Arctic regions were successful in increasing public awareness, especially with regard to melting polar ice caps. Nevertheless, the United States’ interest in maintaining and developing domestic sources for oil and gas continues to loom large over the region’s fate.
Contrary to the United States, Norway’s history and culture are bound more extensively to the Arctic’s resources. Nearly half of Norway lies within the Arctic Circle, including the northernmost portion of mainland Norway and the entire regions of Svalbard, Bear Island, and Jan Mayen. The omnipresence of this unique environment underpins all facets of Norwegian life, but it also has engendered an unusual dichotomy. Norway sets for itself an ambitious domestic emissions reduction policy and operates almost entirely on hydroelectric power, but it continues to “dredge up more oil per capita than most countries in the world” to increase its footprint in the international oil and gas market. Lars Petter Telgen, Norway’s Green Delusions, Foreign Pol’y (Sept. 19, 2018). This conflict is a uniquely Norwegian problem because few countries have taken such a progressive climate leadership posture while concurrently investing their economic hopes on the future of the oil and gas business.
Both the United States and Norway attended the third United Nations Conference on the Law of the Sea, which produced the United Nations Convention on the Law of the Sea (UNCLOS). See Jon Carlson et al., The Scramble for the Arctic: The United Nations Convention on the Law of the Sea (UNCLOS) and Extending National Seabed Claims (2009). Generally, UNCLOS outlines a nation’s rights and responsibilities to the oceans and other parties’ responsibilities when on the ocean. Specifically, inter alia, UNCLOS gives coastal states the right to “exploit, develop, manage and conserve all resources . . . to be found in the waters, on the ocean floor and in the subsoil of an area extending 200 miles from its shore.” Id. at 5. Though the United States failed to ratify UNCLOS, the treaty serves as an international framework to manage ocean-based economic activity such as fisheries, transportation, and offshore energy. See Blue Governance, supra.
In 1996, in response to overfishing threats in Alaskan waters, the United States amended the Magnuson-Stevens Fisheries and Management and Conservation Act (MSA), 16 U.S.C §§ 1801–1884, through the Sustainable Fisheries Act, Pub. L. No. 104-297, 110 Stat. 3559 (1996), to, among other things, prohibit fishery managers from allowing industry to exceed maximum sustainable yields. Moreover, the MSA established the North Pacific Fishery Management Council (NPFMC) to establish fishery management plans for federal waters in the northern Pacific. See 16 U.S.C. § 1852. In 2009, the NPFMC prohibited commercial fishing in the federal waters of the Arctic Ocean but continued to permit subsistence and recreational fishing. See NPFMC, Arctic FMP.
The United States’ interest in maintaining and developing domestic sources for oil and gas continues to loom large over the Arctic region’s fate.
Norway’s history, economy, and culture are bound to Arctic Ocean fisheries, and for over a century, agencies like the Directorate of Fisheries, the Institute of Marine Research, and the Ministry of Fisheries established science-based policies and programs to preserve fish stocks and maximize yields. Subject to domestic and international demand as the century progressed, Norway opted to promote international cooperation. The Norwegian Ministry of Fisheries and Coastal Affairs writes, “[T]he most important fish stocks migrate between Norwegian and foreign waters and, consequently, good governance requires close cooperation with neighboring countries.” Norwegian Ministry of Fisheries & Coastal Aff., Norwegian Fisheries Management (2007). Today, “around 90 percent of Norway’s fisheries are conducted on stocks that are shared with other states.” Id. The move toward greater international cooperation is, therefore, of singular importance to Norway’s legal and economic relationship to the Arctic Ocean, as shown by Norway joining the United States and other countries in signing the International Agreement to Prevent Unregulated Fishing in the High Seas of the Central Arctic Ocean. This agreement’s intent was to bind signatories to an established management and cooperation framework as fishing opportunities and challenges develop in response to the melting polar ice caps. See U.S. Dep’t of State, The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean Enters into Force (June 25, 2021).
Despite certain economic and political similarities, the United States and Norway are in different positions to apply Blue Economy principles to offshore oil and gas development.
Unlike fishery development, Arctic shipping and maritime transportation involving the movement of vessels across international boundaries and waters chiefly require international cooperation and participation. Therefore, the importance of American and Norwegian national law pales in comparison to a well-established corpus of relevant international laws and regulations. Neither the United States nor Norway has “developed a distinctive set of rules or standards for commercial shipping,” excluding the provincial governments of Alaska and Svalbard. Blue Governance, supra.
In the absence of national law and regulation, the Arctic relies on international structures to set the standard. For example, the United States and Norway, as members of the International Maritime Organization, are bound to the International Maritime Organization’s International Code for Ships Operating in Polar Waters (the Polar Code). The Polar Code “cover[s] the full range of shipping-related matters relevant to navigation in waters surrounding the two poles . . . and, equally important, the protection of the unique environment and eco-systems of the polar regions.” IMO, Polar Code. Environmental advocates expressed concern that the Polar Code promotes the Arctic’s use as a shipping route while concurrently failing to insulate the region from consequences endemic to shipping activity—especially “the operational discharge of oil and oily mixtures, noxious liquid chemicals, sewage, garbage, and air pollution from ships that are the main cause of damage to the marine environment.” Nengye Liu, Can the Polar Code Save the Arctic?, Am. Soc’y of Int’l L. (Mar. 22, 2016). However, the Polar Code also recognizes that the “era of Arctic shipping” is here and, rather than wait for disaster, seeks to proactively legislate this formerly deregulated arena. Id. The Polar Code “provides uniform standards for the shipping industry to embrace” and “enhances current regulation of shipping activities.” Id. While certainly imperfect, the Polar Code helps industry and the environment by creating structure. This structure may fail to flawlessly satisfy either industry or advocates, but it provides reasonable balance between the Arctic’s inevitable commercialization and protection of the region’s natural wonders. The Polar Code is a prime example of Blue Economy thinking because it draws feasible compromise between industry and environmental advocates to better proliferate the quality and quantity of sustainable practices.
The United States and Norway both accelerated Arctic development upon discovering immense oil and gas sources. Each sought to nurture and expand a new national energy source to sate domestic demand and increase their share in the lucrative energy market. Meanwhile, myriad environmental challenges from climate change to the pollution crisis propelled a groundswell of support for policies to better preserve nature and its resources. These relatively recent political and cultural realities create tension between the demand for energy and for preservation.
Despite certain economic and political similarities, the United States and Norway are in different positions to apply Blue Economy principles to offshore oil and gas development. It is arguable that the United States, as a whole, benefits from Arctic oil and gas development in the form of lower energy costs. However, Alaska is the only beneficiary of the other direct benefits such as innovation, taxation, job creation, and community identity. Thus, apart from the potential for reduced energy prices, much of the benefit of Arctic energy development in the United States is highly localized in nature. See Blue Governance, supra.
On the other hand, Norway is asymmetrically dependent on Arctic oil and gas production. Norway is the second largest European gas and oil exporter, after the Russian Federation. See Nora Buli et al., Norway Not Ready to Let Go of Oil, Gas in Push for Greener Energy, Reuters (June 11, 2021). Estimates indicate that nearly 20% of its gross domestic product and over 60% of its total exports result from the offshore oil and gas industry. See Blue Governance, supra. This presents a strong contrast to the American example. In Norway, industry’s direct benefits (i.e., reduced energy prices, job opportunities, taxation, innovation, community identity) are far more suffuse, pervasive, and imbedded for a far larger percentage of Norwegian communities, suggesting that the Norwegian economy is not as diversified as the American economy. As a practical matter, therefore, Norway has less flexibility to make any determinations that could diminish the Arctic offshore oil and gas industry. This reality gives industry substantial strength to guide policymaking and inhibits the compromise necessary for the Blue Economy to prosper.
Compromise and conciliation are not currently in vogue, and so the Blue Economy, regardless of its success or failures, is always subject to partisan rancor. Moreover, on a substantive level, what defines the right balance between sustainability and utilization is a moving target. Therefore, it is unsurprising that Blue Economy–based policies regularly face an abundance of legal challenges from stakeholders across the ideological spectrum. However, challenges to oil and gas drilling in both the United States and Norway have resulted in very different outcomes, as discussed further in the examples below. These episodes, quite different in circumstance and outcome, reveal constituencies in both countries that are actively trying to subvert the compromise and conciliation necessary for Blue Economy implementation.
Politically and legally, particularly in the environmental regulation context, the United States is in a tumultuous period. The Outer Continental Shelf Lands Act (OCSLA) is a federal law that, among other things, grants the president of the United States power to “withdraw from disposition any of the unleased lands of the outer Continental Shelf.” 43 U.S.C. § 1341(a). Based on this statute, President Obama issued Executive Order 13754 to withdraw 90% of the U.S.-controlled Arctic Ocean from leasing for oil and gas drilling. See NRDC, League of Conservation Voters v. Trump (Offshore Leasing Ban) (Apr. 13, 2021). On April 28, 2017, President Trump issued Executive Order 13795 to reverse this withdrawal. The Trump administration argued that if OCSLA granted the executive power to confer protections, then OCSLA grants the executive power to revoke those protections. The U.S. District Court for the District of Alaska disagreed with this assertion, writing, “in light of the text and context of Section 12(a) of OCSLA, the Court holds . . . Executive Order 13795 is unlawful and invalid.” League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013, 1031 (D. Alaska 2019). The Trump administration appealed the decision, but the case was dropped after President Biden issued Executive Order 13990, ending President Trump’s attempt to revoke withdrawal. NRDC, Offshore Leasing Ban, supra.
Norway also faces a consistency problem. The nation was one of the first to sign the 2015 Paris Agreement. Simultaneously, Norway increased oil and gas development permitting, issuing 700 exploring licenses in the last decade (more than the prior 47 years combined), with over half of the permits issued after the country signed the Paris Climate Agreement. See Silje Ask Lundberg et al., The Aggressive Explorer, Oil Change Int’l (2022). This contradiction is further exacerbated by a provision to the Norwegian Constitution adopted in 1992. Article 112 states, in part, that “every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.” Nor. Const., art. 112. However, what specific rights Article 112 actually confers is a cause of consternation in Norwegian politics. The Norwegian government interpreted Article 112 as a statement of intent, not actually granting enforceable rights or duties. Pursuant to this interpretation, Norway continues to develop offshore oil and gas sources, recently proclaiming that the “oil and gas sector will be developed, not dismantled.” Norway’s Oil and Gas Sector will Not Be Dismantled, New Government Says, BBC News (Oct. 13, 2021). However, recent parliamentary elections indicate that Norwegian voters see climate and emissions as a “key issue.” Nora Buli et al., Norway Not Ready to Let Go of Oil, Gas in Push for Greener Energy, Reuters (June 11, 2021). In large part, the current administration’s “landslide” victory in the parliamentary elections is credited to a campaign focused on climate and energy issues. Nora Buli et al., Norway’s Left-Wing Opposition Wins in a Landslide, Coalition Talks Next, Reuters (Sept. 14, 2021).
In 2020, Norwegian climate activists sued the state of Norway alleging that a series of petroleum exploration licenses violated Article 112 of the Norwegian Constitution as well as the Paris Agreement and European Convention on Human Rights.
It is in this political and cultural climate that a set of oil and gas exploratory licenses were challenged in the Supreme Court of Norway. In 2020, Norwegian climate activists sued the state of Norway alleging that a series of petroleum exploration licenses violated Article 112 of the Norwegian Constitution as well as the Paris Agreement and European Convention on Human Rights. See Renata Politi et al., Norway’s Supreme Court Dismisses Claim Based on the Right to a Healthy Environment and Allows New Oil Exploration in the Arctic, Universal Rts. Grp. (Jan. 25, 2021). The central issue was whether Article 112 can be directly enforced against the government. As noted by the justices, the Norwegian Constitution offers rights that “may be positive and give a legal claim to something, or negative and give individuals or groups freedom from interference,” while others are “mere ‘manifestos’ imposing duties on the authorities, but from which one cannot derive specific rights that may be asserted in court.” Nature & Youth Norway et al. v. The State, Case No. HR-2020-2472-P, ¶ 79 (Jan. 23, 2020). The climate activists claim that Article 112 confers justiciable rights and governmental duties, while the state argues that Article 112 offers no rights or duties and acts only as a guiding principle for the legislature. The Supreme Court of Norway held that Article 112 operates somewhere between a justiciable right and a guideline. Specifically, it concluded that “Article 112 of the Constitution is not merely a declaration of principle, but a provision with a certain legal content.” Id. ¶ 144. For instance, Article 112 may be used to interpret administrative decisions not approved by the legislature. Id. ¶ 145. The justices also noted, however, that if the legislature itself acted or in any way approved an administrative decision, Article 112 should be considered a “safety valve” to be invoked only if the legislature “grossly neglected” the Norwegian people’s right to a healthy environment. Id. ¶ 142. In the wake of this decision, the climate activists appealed to the European Court of Human Rights, which as of the time of this article’s publication had not yet decided the case.
Both episodes are likely ill omens for the Blue Economy’s future in the United States and Norway. Blue Economy principles are malleable and recognize shifting circumstances to balance the needs of society and the needs of nature. What these legal challenges reveal is the extent to which sustainable practices are subject to the caprice of short-term economic and political influences. The flurry of American executive orders reveals that the United States does not maintain a consistent Arctic Ocean policy that can survive the ascension of a different political party. Meanwhile, Norway vows to lead on climate issues and expressly touts ambitious emission reduction goals but simultaneously continues its unprecedented investment in the oil and gas sector. As described, the United States and Norway have enacted and benefitted from Blue Economy policies in the fishery and marine transportation sectors. However, as these cases show, the oil and gas sector seems particularly resistant to Blue Economy influence.
