Supreme Court judgment on tailings disposal in Førdefjorden: the reasoning must be right from the outset

First published on foyen.no on 22 June 2026. Authors: Roar R. Lillebergen (Partner) and Ellen Kristine Usland (Senior Associate). Translated from Norwegian.

On Wednesday 17 June 2026, the Norwegian Supreme Court ruled in favour of Natur og Ungdom and Norges Naturvernforbund, holding that the State’s permit for the disposal of mining waste in Førdefjorden is invalid. Whether this proves to be a lasting victory is, however, another question.

The project concerns mining operations at Engebøfjellet, where eclogite – a rock containing garnet and rutile, among other minerals – is extracted. Rutile can be used in the production of titanium metal, which matters for the defence, aviation and space industries, among others. Like most extractions of natural resources, the mining operations also entail certain adverse consequences. The extraction generates substantial volumes of fine-grained tailings. Approximately 26.5 million tons of mining waste were to be deposited in Førdefjorden.

It was not disputed before the Supreme Court that disposal would cause a deterioration in the water quality of the fjord. The benthic fauna in the disposal area would be lost during the operating period of up to 50 years and for a longer period thereafter. The question was therefore whether the deterioration could be permitted under the derogation in Section 12 of the Norwegian Water Regulation), read in the light of the Water Framework Directive. The decisive condition was whether the intervention could be justified by an "overriding public interest".

The Supreme Court’s assessment

The Supreme Court based its decision on the EFTA Court’s understanding of this condition, and clarified that ordinary economic considerations are not sufficient. In the discharge permit issued in 2016, the government relied on the socio-economic benefits, including revenues, jobs and positive effects on local settlement. The Supreme Court concluded that this did not satisfy the requirement of an "overriding public interest". The region did not have such documented problems with depopulation, unemployment or low living standards that considerations of local and regional development could justify the deterioration of the water quality.

The government also invoked security of supply, in particular the need for access to critical raw materials and to rutile as a feedstock for titanium metal. The Supreme Court accepted that security of supply for critical minerals may in principle constitute an overriding public interest. The problem, however, was that this consideration formed no part of the reasoning behind the 2016 discharge permit. It was only in the Royal Decree of May 2025, in which the government considered whether the permit should be reversed, that security of supply was highlighted as a central objective.

Points of principle

The Supreme Court thus held that the justification for derogating from the prohibition on deterioration of water quality must exist when the permit is granted. The administration cannot subsequently "read in" new considerations to an earlier decision in order to save its validity. The Water Framework Directive requires a detailed and specific analysis before a permit allowing deterioration of water quality is granted. That analysis must cover both the environmental disadvantages and the public interests said to justify the intervention.

Reconsideration by the administration

The consequence of the judgment is that the earlier decisions are set aside.
The case will now be referred back to the administration, which must take a new decision supported by proper reasoning.

It may be assumed that the administration still wishes to permit sea disposal in Førdefjorden. If so, a new decision must be based on a correct legal assessment and proper reasoning. Such a decision must expressly identify which overriding public interests are relied upon, and explain why these outweigh the loss of environmental quality.

The judgment: Norwegian Supreme Court, HR-2026-1360, 17 June 2026. Norway applies the Water Framework Directive (2000/60/EC) through the EEA Agreement.