Greenpeace and the environmental group Youth and Nature are suing the Norwegian Government for granting Arctic oil drilling licenses.

Their argument is based on an article in the Norwegian constitution protecting the right to an environment that’s healthy and that long-term consideration be given to digging up natural resources.

Greenpeace Norway head Truls Gulowsen told Hack it all comes down to climate change and oil licenses.

"We had challenged the Norwegian state for handing out new licenses for drilling in the arctic in spite of the fact that they have signed the Paris Agreement," he said on his way to court.

"They acknowledge climate change is a problem, and they know that the world has already found more carbon, fossil carbon, than we can ever afford to burn."

He said Norway's constitution gives future generations the right to a healthy environment.

"[That] puts duties on the state to guarantee and safeguard those rights."

Brendan Sydes, lawyer and CEO of Environmental Justice Australia, says the strategy used by Greenpeace goes to a country’s legal foundation, instead of working with a country's environmental regulations.

They’re looking for rights there in the constitution that form really hard limits on what governments ... can do."

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A win for environmental groups against the Norwegian Government could be groundbreaking.

It would mean bypassing politicians in the fight against climate change.

Truls Gulowsen says lots of countries other than Norway have legislation that give future generations the right to a healthy environment.

Environmental groups can then attempt to prove to a court that a country's carbon reduction policies are inadequate for preventing future climate change.

[They can] get courts to save the climate."

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An Australian right to a healthy environment?

Our Constitution doesn't contain an explicit paragraph for environmental protection, nor do we have a bill of rights.

Brendan Sydes said we have very few rights in our Constitution.

"We don't have the direct constitutional foundation for pursuing these sorts of actions," he said.

"But there certainly is interest in ... trying to find duties or obligations deep within our legal system that would force the Australian Government to take climate change and the need to reduce emissions farm more seriously than they are at the moment.

Dr Tom Baxter, corporate governance lecturer at the University of Tasmania, says the Federal Government hasn't added a climate change trigger to Australia's environment legislation.

"Environmental lawyers are trying to use other mechanisms to prevent companies like Adani digging up the Galilee Basin and shipping coal out through the Great Barrier Reef."

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Court cases become more common

The case against the Norwegian Government is one of an increasing number of legal, rather than political, avenues environmental groups are using to stop mining, drilling and environmental degradation.

In 2016 a group of students began suing the US Government over environmental neglect, claiming the Government is failing to protect their future from the impacts of climate change.

The 21 students argued their right to "life, liberty and property" was being violated.

Oral arguments will be heard in the case in early December.

In 2015, the Dutch citizens took their government to court, arguing that the country’s emissions targets weren’t going to protect them from climate change.

They won and as a result the Dutch Government was forced to increase its emissions reductions targets.

Dr Baxter says the Norwegian case has sparked similar cases in other countries.

"Depending on how this Norwegian case goes, US lawyers and other European nations will study it carefully and apply it in their own context."

Brendan says there is a hope and desire to get environmental matters before the court.

"I guess there's some hope that courts are able to close that gap between the rhetoric ... and the reality, basically saying you can't say one thing and do another."

Truls from Greenpeace Norway says if Australian environmental activists can find opportunities to use legal means, it’s worth a shot.

"I think absolutely you should look into the opportunities that courts provide because that's a very good discussion for a less political debate where facts matter more and when fact matters environmental campaigns win."

If the case fails?

Norway's court is expected to hand down its decision in the landmark case in February.

If the court finds against Greenpeace and Youth and Nature, Truls says they will keep pushing other avenues.

"If we're not successful the situation will be as it has been for a while. New oil licensing is legal, which is a sad situation to be in."

"There might be opportunities for appeal to a higher court, and of course we always have the abilities to continue protests, demonstration, information and working with politicians."