Energy Law and Sustainable Development

The origin of the modern emphasis given in both domestic and international environmental law to the principle of sustainable development is the Report of the World Commission on Environment and Development (the “Brundtland Report”).  While this principle has been adopted with enthusiasm in later reports and international conventions in a variety of different environmental contexts, the one area where little attention has been given until recently is energy.

This omission is surprising in light of the importance attached by chapter 7 of the Brundland Report to energy issues.  The report considered energy to be a major feature of sustainability, and identified the key elements as follows:

·       sufficient growth of energy supplies to meet the needs of humanity (including an allowance for development in non-developed countries);

·       energy efficiency and conservation measures;

·       public health, recognising the safety risks posed by energy use and production; and

·       protection of the biosphere and elimination of local pollution problems.

The most important issues were considered to be the increase and improvement of energy efficiency, which the Report stated “should be at the cutting edge of national energy policies for sustainable development”, and the need to shift the current energy mix more towards renewable energy resources.  Such resources include solar energy (space and water heating/cooling, and photovoltaics), wind energy, biomass, geothermal, small-scale hydropower (under 10 megawatts), wave and tidal power.

Despite this boost given to energy issues, energy has featured only marginally in environmental law over the past decade.  It has become mired in intractable political issues, with too many vested interests at stake to allow for radical change.  Thus, for example, the need to reduce the current heavy reliance on fossil fuels has been thwarted by many powerful oil-producing and oil-dependent nations, which fear economic detriment from any change to the status quo, and by powerful multinational oil corporations.  These political factors led to the virtual exclusion of energy issues from the final text of Agenda 21.  Chapter 9, which was originally designed to contain a variety of energy-related measures, was emasculated during the discussions leading to the drafting of the final text.  While agreeing that current energy development and use was unsustainable in the long term (para 9.9), and that “the existing constraints to increasing the environmentally sound energy supplies required for pursuing the path towards sustainable development, particularly in developing countries, need to be removed” (para 9.10), the range of activities proposed in para 9.11 are insignificant and wholly inadequate as a basis for promoting sustainable development in the energy sector.

The situation has been improved by the World Summit on Sustainable Development, which introduced a number of clauses relating to energy in its Plan of Implementation.  However, this document contains no binding national commitments in relation to energy, and the move to impose a mandatory percentage increase in the use of renewable energy resources was rejected.

The current unsustainable practices in energy use and production have led to a plethora of environmental problems.  Among the most important are the following:

·       climate change, for which energy production is over 60 per cent responsible;

·       acid rain, caused primarily by coal burning;

·       increasing desertification, caused by unsustainable use of firewood for heating and cooking in developing countries;

·       ozone depletion, caused by the use of hydrofluorocarbons in refrigerators and air-conditioning units;

·       nuclear radiation;

·       soil pollution, caused by oil and geothermal exploration and production;

·       loss of habitat, caused by large-scale hydropower projects;

·       pollution of the sea, caused by oil spills from large ocean-going tankers; and

·       urban air pollution, caused by fossil-fuel burning.

The law has a major role to play in minimising or eliminating these environmental problems.  Some of these problems have already been effectively tackled by the introduction of national legislation and/or international conventions.  Thus, for example, at the international level acid rain is controlled by the 1979 Convention on Long-Range Transboundary Air Pollution, together with the 1985 Protocol on the Reduction of Sulphur Emissions or Their Transboundary Fluxes by at least 30 Per Cent (Helsinki), the 1988 Protocol concerning the Control of Emissions of Nitrogen Oxide or Their Transboundary Fluxes (Sofia), and the 1994 Protocol on Further Reduction of Sulphur Emissions (Oslo).  Nuclear safety issues are regulated by the 1994 Convention on Nuclear Safety, and nuclear emergencies are now subject to the 1986 Convention on Early Notification of a Nuclear Accident and the 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency.  Oil spills at sea are controlled by the International Convention for the Prevention of Pollution by Ships (MARPOL) (London) and the 1982 UN Convention on the Law of the Sea.  In many countries national legislation exists which implements the terms of the international conventions.

Conversely, however, little, if any, effective national legislation or international measures have been enacted in support of renewable energy and energy conservation, the international agreements adopted on climate change do not address the energy side of the equation, and the link between desertification and energy has not even been officially recognised, let alone legally addressed.

Thus, in terms of legal responses the approach of governments and the international community to sustainable energy can be regarded at best as patchy and inadequate.  This is particularly frustrating and unfortunate as scientific and technological advances in the energy sector have proceeded apace over the past decade.  The efficiency of photovoltaic cells has increased dramatically, enabling them to be cost-effective in many regions of the world, new efficient designs of wind generators have been developed, the technology has been developed to enable off-shore wind generators to be established, new super-efficient motors have been manufactured, enabling substantial energy savings in a wide range of industrial and domestic products, new advances in motor vehicle design and technology have occurred, facilitating substantial cost savings in the transport, and much progress has been made in the development of alternatives to petroleum for motor fuels (such as ethanol, methanol and hydrogen).  In addition, the development of cogeneration technology (sometimes referred to as “combined heat and power”) has advanced rapidly enabling much greater efficiencies in respect of industrial plant.

What is the most effective contribution that the law can make in energy matters towards sustainable development?  In relation to fossil fuel technologies, existing environmental controls can and should be upgraded on a regular basis to take advantage of scientific and technological developments in the field of oil production techniques and clean coal technologies.  This can lead in the long-term to a significant reduction of oil and soil pollution and to a more efficient use of the resources.  In most resource-producing countries legislation already exists controlling such matters, so it would be a relatively simple matter to ensure that such legislation is updated and kept under continuous review.

In other energy matters, however, the answer is more complex.  In general terms, new legal developments should endeavour to achieve the following:

·       By the use of regulations and fiscal incentives, ensure that all emerging energy technologies are advanced and commercialised.

·       Require the use of proven energy efficient materials and devices in all sectors of society.

·       Ensure that emerging energy technologies are not ignored or sidelined by vested commercial interests.

·       Engage in “technology forcing”, whereby companies are required to achieve certain specified minimum levels of efficiency according to a timetable established for many years into the future.

·       Recognise that energy issues and solutions are no longer simply a matter of national concern.  The link between energy use and production and major world environmental problems, such as climate change and acid rain, must be reflected in the terms of international conventions and “soft law” documents.

In order to realise these goals, a wide range of specific legislative measures will be required at both national and international level, of which the following are the most important:

·       The creation of a new Protocol to the UN Framework Convention on Climate Change on energy use or the creation of a non-binding Statement of Energy Principles, justifiable by the effect that current non-sustainable energy use and production has on climate change and by the need to preserve fossil fuels for future generations.

·       Uniform safety standards for nuclear facilities should be established.  The 1994 Convention on Nuclear Safety deals with “safety principles” rather than setting specific standards.

·       Nuclear safety standards should be extended to military as well as civil nuclear facilities, as the consequences of any nuclear accidents in military facilities would be equally grave for the environment and the surrounding population.  At the very least the notification requirements in the case of nuclear emergencies should be extended to military facilities.

·       Provisions should be introduced for dealing with research and development, the exchange of technology and assistance funds for upgrading nuclear facilities or facilitating adjustment where substandard plants need to be shut down.  Compared with conventions regulating acid rain and ozone depletion, the nuclear Conventions are particularly weak on the issue of transfer of technology and financial assistance.

·       The introduction of a new international convention regulating oil pollution at sea resulting from land-based sources.  This significant area of pollution is currently entirely unregulated at the international level.

·       The introduction of a legal management regime for geothermal resources in all countries where the resource exists in exploitable quantities.  Such a regime should contain extensive environmental safeguards against soil pollution from run-off, should establish requirements that water extracted be re-injected into the ground, and should regulate against other adverse environmental effects, such as noise, blow-outs, land subsidence, atmospheric pollution and groundwater contamination.

·       The introduction of a legal management regime for biomass in respect of all of its actual and potential energy applications.

·       The creation of a legal right of solar access to solar collector panels and right of wind access to wind generators.  The lack of such legal rights is a significant deterrent to investment in solar and wind energy.

·       The removal of existing legislative barriers to the use of ethanol and methanol as motor fuels.  The barriers range from customs legislation, which in some jurisdictions inhibits the importation of necessary fuel or vehicle parts, to competition law, which may in effect prevent the creation of joint ventures by oil companies to produce and market alternative fuels, and to special legislation relating to dangerous substances, which covers the handling, storage and distribution of all dangerous substances.  Taxation incentives should also be provided to companies engaging in fuel substitution programs.

·       Legal management regimes in existence for rivers generally or for specific rivers should be amended so as to permit the use by riparian owners or by others on public land of the rivers for small hydropower schemes.  A system of licensing should be required for small hydropower schemes, and permits could be issued subject to appropriate environmental safeguards.

·       Fuel consumption standards for motor vehicles should be adopted.  These standards could be progressively tightened over the years in order to force vehicle manufacturers to improve fuel efficiency.

·       Labelling laws should be enacted in respect of motor vehicles and all major categories of domestic appliances requiring the creation of a mandatory form of label and its compulsory display on the vehicle or appliance.

·       Fiscal incentives should be enacted to encourage car owners to replace older, less efficient vehicles at the earliest possibility, and to encourage them to purchase smaller and more fuel efficient models.  This could be achieved by replacing vehicle registration fees by increased taxes on the retail sale of petroleum products, or by imposing a “gas guzzler” tax on the purchase of larger, fuel-inefficient vehicles and a gas sipper” rebate on smaller, efficient vehicles.

·       Appliance efficiency standards should be established, with a prohibition on the sale of appliances which fail to comply with the specified standards.

·       Mandatory energy efficiency laws are required for all new buildings, together with income tax incentives to encourage the retrofitting of conservation measures by owners of existing buildings.

·       The use by industry of cogeneration technology should be encouraged by legislation.  For example, the electricity legislation could contain a statutory duty on each electric utility company to adopt and support schemes for electricity generation by co-generators.

·       Legislation requiring energy officers to be appointed in each major industrial plant.  The task of these officers would be to monitor energy consumption and to suggest various methods of reducing consumption.

·       The laws regulating electricity generation should be amended so as to include a duty to promote renewable energy and energy conservation to the maximum extent practicable, and a duty to promote demand-side management and least-cost planning.

·       Independent power producers who produce electricity from renewable energy or by cogeneration should be protected against larger, traditional power companies by the introduction of legislation safeguarding their right of interconnection to the electricity grid and a right to compete on fair terms in the electricity market.

Many other important possibilities for future legislative action exist, but this list is sufficient to show the magnitude of the current problems and the task ahead.  The most important message is not the detail of the individual reforms required, but the realisation that energy is one of the most important current issues in environmental law.  Without reforms in the energy sector, any governmental commitments to sustainable development are little more than hollow rhetoric.  ISEO and its Global Energy Charter for Sustainable Development will play a major role in achieving the required action.

Adrian J Bradbrook, Bonython Professor of Law, University of Adelaide, Australia
Chairman of the World Sustainable Energy Coalition and the ISEO Legal Committee
Member of the IUCN Commission on Environmental Law

See also "Global Energy Charter for Sustainable Develoment" on www.uniseo.org.

More information from the "Blueprint for the Clean, Sustainable Energy Age" - order form
http://www.cmdc.net/publications.php

The ISEO working groups will add more information.