ENERGY LAW

N NDLOVU
WHAT CONSTITUTES ENERGY LAW
• In very simple terms, “energy law” concerns the management of energy
resources.
• Adrian Bradbrook defined ‘energy law’ as ‘[t]he allocation of rights and
duties concerning the exploitation of all energy resources between
individuals, between individuals and the government, between
governments and between states.
• This definition looks at energy law from a functional perspective, which is
to say that it examines its objective: that of regulating the exploitation of
energy resources. As such, it examines energy law and regulation separately
in respect of each type of energy carrier. Defined in this manner, there is no
“energy law”, but many “energy laws”, one for each type of energy carrier.
CONT
• Governs the use, production and taxation of energy, both renewable
and non-renewable
• These laws are the primary authorities (case law, statutes, rules,
regulations) relating to energy
• Also includes the legal provision for oil and gas and extraction taxes
• The practice of energy law includes the contracts for siting, extraction,
licenses for the acquisition and ownership rights (eg oil and gas) both
pre-discovery (under the soil) and post-discovery (after extraction)
and adjudication regarding those rights
CONT
• Another way to look at this question is to distinguish “energy law and policy”
from “resources law and policy”.
• This distinction rests essentially on the idea that energy law and policy are
about markets, security of supply and efficiency. It is about government
policies aimed at securing energy sources at the least possible cost, including
social cost. Contemporary energy law often relies, at least to some extent, on
markets to achieve this.
• Resources law and policy, by contrast, is about the strategies used by
governments to maximize revenue and exercise sovereignty. It is also related
to a country’s more general development policies, such as industrial policy.
The role of governments and the public sector is more central in this area of
law and policy.
What is energy policy
• Energy policy refers to the policy and politics of energy – the approach that
governments adopt to
• address issues of energy development (production, distribution and
consumption
• Policy and politics of energy
• The approach that governments adopt to address issues of energy
development (production, distribution and consumption)
• Public policy is of major importance to our work and lives – it determines the
quality of the air we breathe, the water we drink and the food we eat
• The type, amount and cost of energy; how ‘green’ the energy is; who owns it;
where it is located
CONT
• While these definitions and distinctions are useful in conceptualizing
energy law and helpful in explaining what energy law is, these are still
relatively simple definitions and disguise that energy law is probably
one of the more complex areas of law. It demands that a scholar in
the area engage with other disciplines like, for example, politics,
economics, geography, environmental sciences and engineering.
• At the core of energy law is the regulation of energy related rights and
duties of various stakeholders over energy resources over the energy
life-cycle.
CONT
• Defining energy law as the regulation of energy related rights and
duties of various stakeholders, and moving away from the energy
law/resources law distinction, allows for considering the entire energy
value chain when discussing energy law and its drivers. This is
important as any approach to energy law, and in particular that of this
article, must consider all areas of the energy life cycle from extraction
to production to operation to consumption and waste management
for all energy sources.
CONT
• Although to some degree environmental, climate change and energy
law are interrelated, energy law has not evaluated itself and grown
theoretically as the other two have.
LAYERS/SOURCES OF ENERGY LAW
• International law – international treaties and soft law documents
• National law – national and subnational law and policy
• What is international law?
• Law for States made by governing bodies eg UN
• Body of rules and principles that determines the rights and duties of States, in
respect of their dealings with other States and the citizens of other States, and
that determine what is a State
• Important to determine what a State is because if States have rights and duties
under international law, we must know who these rights are attached to
• Key principle is the peaceful co-existence of States
Elements of international law
• Governance and formulation of policy
• Rights and obligations of States
• Compliance and enforcement
• International and national law
• Monism – international law and national law are one system of law
• Dualism – international law and national law are separate systems of
law
What is international energy law
for?
• Environmental protection
• Cross-border trade and competition
• Security of supply
• Technology-specific issues eg nuclear
• Key areas
• International environmental law- International climate regime
• Nuclear energy and trade in hazardous substances
• International economic law-Investment treaties
INTERNATIONAL FRAMEWORK ON
ENERGY LAW
• LIST THE KEY INTERNATIONAL INSTRUMENTS AND LINK THEM WITH
ENERGY LAW
THE PRINCIPLES OF ENERGY LAW
• The Principle of National Resource Sovereignty
• The ‘inalienable right of all states freely to dispose of their natural
wealth and resources accordance with their national interests
• Likewise, the principle of national sovereignty was agreed as a specific
principle in the Stockholm and Rio Declarations of 1972 and 1992,
respectively. Today permanent national sovereignty over resources is
recognized under international law and its exercise is established
under national constitution.
• Which sections of the Zim Constitution express this principle?
The principle of access to modern
energy services
• Energy versus energy services: Whats the difference?
• The increasing recognition of the importance of access to energy services is
apparent from a comparison between the UN General Assembly’s
Millennium Development Goals (MDGs), declared in the 2000 Millennium
Declaration,37 and the Sustainable Development Goals (SDGs), also
declared by the General Assembly in Transforming Our World: The 2030
Agenda for Sustainable Development.38 In the former case, the goals make
no mention of energy. In contrast, Goal 7 of the SDGs is expressly devoted
to energy: ‘Ensure access to affordable, reliable, sustainable, and modern
energy for all.’ Each of the SDGs contains a number of targets. Target 7.1
declares: ‘By 2030, ensure universal access to affordable, reliable and
modern energy services.
CONT
• There is currently active legal debate on four related issues:
• Does a right of access to energy services exist in human rights law?
• If not, what other international law strategies exist to provide for
universal access to energy services?
• What role can domestic law play in promoting and/or guaranteeing
universal access to energy services?
• Is there a role for the judiciary to play in this context?
The principle of energy justice
• Energy justice is a growing moral, philosophical and ethical movement
that developed in the late 20th and early 21st centuries. It has been
defined as: [Achieving] a global energy system that fairly disseminates
both the benefits and costs of energy services, and one that
contributes to more representative and impartial energy decision-
making.
• The energy justice movement emerged out of and has the same
philosophical background as the more general issues of
environmental justice and atmospheric and climate justice. The
existing literature divides energy justice into three core themes:
distributional justice, procedural justice and recognition justice.
CONT
• Distributional justice seeks to ensure that it is not always the disadvantaged
and poor people who suffer most from the siting of energy projects and
those objections to new energy projects are examined thoroughly by
governments and judicial planning bodies without undue pressure from
developers.
• Procedural justice involves the equal ability of all social groups to be able to
participate in decision-making processes in proposed energy developments.
• Recognition justice involves a consideration of differing community
opinions and perspectives based on such matters as gender, race and
cultural background as well as ensuring that certain groups and places are
not devalued or disrespected.
The principle of prudent, rational
and sustainable use of natural
resources
• Sustainable use of natural resources is a term referred to in several
conventions either directly45 or by using alternative expressions like
‘conservation’46, ‘sustainable management’47, ‘optimal, efficient and
rational use’ or ‘reduce and eliminate unsustainable patterns of
production and consumption’ as stated in the Rio Declaration on
Environment and Development (1992), Principle 8.48 Already the
Stockholm Declaration (1972),49 however, included the principle (No
5) that non-renewable resources of the earth must be employed in
such a way as to guard against the danger of their future exhaustion
and to ensure that benefits from such employment are shared by all
mankind
The principle of the protection of the environment,
human health and combatting climate change
• Energy and the environment are physically linked in the natural fuel cycle.
From exploration and extraction through processing and transportation and
then to distribution, consumption, and disposal of the natural resources that
are used to produce energy, environmental consequences follow.
Consequently, energy law and policy and environmental law and policy
cannot be treated as distinct areas of regulation. Most notable, the
phenomenon of climate change exacerbates the environmental problems
attendant with the energy system— the energy sector being the main
contributor of CO2 emissions. These environmental problems include
degradation of natural environments and the imposition of risks and
fatalities on humans. Inevitably, there are trade-offs57 between energy and
the environment that must be addressed; and, more importantly, overcome.
Energy security and reliability
principle
• Energy security is at the heart of any modern energy policy system
and is reflected in a large number of national energy laws and
regulations. Its significance is connected with the general importance
of energy for the society. The concept refers to two distinct but
related energy policy objectives. It refers to security of supply, which
typically means the continuous availability of energy at a reasonable
cost. Most modern energy policies also add the social or
environmental costs to this definition.64 It also refers to security of
demand, which means the continuous demand for energy products
produced within the country in question.
Principle of resilience
• In the USA, the National Academy of Sciences has defined resilience
as ‘the ability to prepare plan for, store, recover from, and more
successfully adapt to adverse events.
• The energy sector of the economy can be assessed in two parts—
transportation and electricity although fossil fuels dominate both
systems. The crucial difference between the two, however, is that
they each have their own particular physical characteristics.
Transportation fuels, for example, can be easily identified and stored.
Electricity is fungible and storage only possible short term at best.
More importantly, the electricity system must be in balance at all
times as well as readily available.
CONT
• Regardless of these differences, however, energy for both sectors
must be reliably available. Additionally, both systems must be
resilient. Because transportation fuels are easily storable and
dispersed throughout a country, the transportation system is
relatively resilient. Not so for the electricity system. In fact, resilience
is now become a major concern to the electricity sector as a result of
a series of disruptive weather events that have shut down the
delivery of electricity at great economic costs. Consequently, the
energy future must pay close attention to the concept of resilience.
Energy law and policy theory