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