BUILDING A SPECIAL JURISPRUDENCE FOR AN EMERGENT LEGAL DISCIPLINE: THE CASE OF ENERGY LAW

This article critically discusses the interface between EU climate and energy law. It argues that legal scholarship should explore and expose the interrelationships between these legal disciplines through shared understanding and evaluation of both the disparities and synergies found. It maps the origins of EU climate and energy law to demonstrate how they have evolved side by side, guided by separate legal rationales and distinct legislative developments yet sharing partially overlapping objectives and instruments. By comparing EU climate and energy law as legal disciplines, the article identifies dynamic and static attributes that characterize the interface between EU climate and energy law. These attributes, combined with the evolution of EU climate and energy law, are key elements in facilitating disciplinary convergence. As an outcome of the analysis, the article calls for critical legal scholarship that acknowledges the climate and energy law interface, allowing disciplinary convergence to develop between them.

This article focuses on energy law’s contribution to the energy transition and to research on that transition. It is well known that law plays a pivotal role in governing the energy sector and has fundamental implications for the pursuit of the low-carbon transition. Despite this fact, law often remains confined within its silo, inaccessible to non-lawyers due to its distinctive methodological characteristics and internal jargon. This article aims to initiate an accessible dialogue between energy law and other energy-focused disciplines. It first explains how energy law, as a legal discipline, should be understood in this context and what that implies for energy law as a system of governance. It then explores the interface between energy law and other disciplines in which research into the energy transition is carried out. The article identifies and evaluates the roles of energy law in the energy transition, concluding with a summary of the implications of the role of energy law for the energy transition and for energy research.

This paper analyses how the North American Free Trade Agreement (NAFTA) influenced the opening of the Mexican energy sector, beginning in 1992. It evaluates how the multiplication of legal bodies governing the energy industry calls the attention of scholars to the analysis and systematisation of this novel legal discipline. The survey includes a discussion of the 2013 constitutional energy reform and how international treaties shield this reform, preventing a new constitutional amendment from reversing the opening of the Mexican energy sector. Finally, it emphasises that Mexican energy law is now not separate from international commercial law.

Energy law is often referred to as an immature or emergent area of law. This article argues that the maturity of a legal discipline is principally defined by two features. First, it must establish common denominators within itself that do not change even if the jurisdictions or the laws themselves do. Second, a mature legal discipline ought to entail an established scholarly discourse as to how the identified denominators – the properties that define the discipline – impact the ways in which legal decisions are made in that area of law. The article advances this argument in three phases. First, it elaborates on the understanding of the immaturity of a legal discipline in energy law scholarship. Second, it suggests five common denominators of energy law that give the discipline its identity. Finally, it demonstrates the ways in which the properties identified in the second phase are reflected in the methodology of energy law.

The increasing recognition of the ‘international law dimension’ of energy law among legal scholars, legal practitioners and those working in any role with energy markets, has led to the growing recognition and development of ‘international energy law’ as a separate academic discipline. Although certain ‘sub-disciplines’ of laws within ‘international energy law’, such as oil and gas law, are well developed fields of practice, research and study in their own right, the study and teaching of international energy law in its own right is still very new. This chapter builds on Professor Adrian Bradbrook’s groundbreaking work in Energy Law to provide an overview of International Energy Law as a coherent academic legal discipline. This is done by describing certain key themes that underlie the whole of international energy law; identifying various subsets or ‘sub-disciplines’ of international energy law according to different types of energy resource; briefly discussing the energy law of the European Union, which is universally acknowledged to be a crucial part of international energy law, as well as a separate legal speciality; and by discussing some crosscutting issues that are relevant across the globe, such as energy and the environment, energy and trade, and dispute resolution.

This thesis examines the interplay between energy security and law and policies promoting green energy. Based on empirical work carried out in two very different country case studies – Great Britain and Brazil – this thesis attempts to foster a better understanding of the role played by energy security in constructing and deconstructing green energy policy initiatives. Understanding the diversity of views on and the complexities of the interplay between energy security and green energy development is at the heart of this thesis. The diversity of views raised in national contexts leads to legal disputes in international forums when attempts are made to address the issues of this energy security-green energy interplay. As such, building on the findings of the case studies of Great Britain and Brazil, this thesis then analyses the interplay between energy security and green energy development in international trade law as encapsulated in the law of the World Trade Organisation (WTO), an international trade organisation which adjudicates between competing discursive claims surrounding energy security and green energy development and pronounces on their legal status. This thesis shows the complexity of the relationship between energy security and law and policies on green energy development and how the existing discursive constructions are broadening, deepening and transforming this interplay. In summary, the findings demonstrate the discursive contests that lead to divergent constructions of energy security not only in the context of different countries, but also in different sectors of the economy within a country. It also shows that the links between energy security and national and international law and policies on green energy pose challenges to a transition to a green energy system. In order to assist the energy transition, this thesis puts forward the adoption of the broader energy security concept in law and policies which includes environmental, climate and social considerations. It also argues for the incorporation of a dominant positive frame in relation to the interplay between energy security and law and policy on green energy development since a positive frame in relation to this link has the implication to significantly contribute to the promotion of an energy source. In addition, it advances the need to embrace emerging green energy technologies in energy systems and argues that an evenly distributed market share of green energy technologies and equipment around the world is the best solution to ensure green energy security in the context of the just energy transition. This thesis then proposes a way forward in creating the legal space in the law of the WTO for trade restrictive measures aimed at ensuring green energy security.

U.S. energy law and the scholarship analyzing it are deeply fragmented. Each source of energy has a distinct legal regime, and limited federal regulation in some areas has resulted in divergent state and local approaches to regulation. Much of the existing energy law literature reflects these substantive and structural divisions, and focuses on particular aspects of the energy system and associated federalism disputes. However, in order to meet modern energy challenges — such as reducing risks from deepwater drilling and hydraulic fracturing, maintaining the reliability of the electricity grid in this period of rapid technological change, and producing cleaner energy — we need a more dynamic, holistic understanding of energy law. Examining the energy system as a whole reveals patterns across substantive areas and allows them to learn from one another. This Article provides the first systematic account of energy federalism, proposing a novel model for understanding the energy system and its federalism dynamics. It begins by describing the U.S. energy system as comprised of interacting physical, market, and regulatory dimensions. The Article next explains why this complex system requires a federalism model that moves beyond disputes over federal versus state authority; it describes the many vertical interactions (those across levels of government, from the local to the international) and horizontal interactions (those among actors within the same level of government) within different types of energy regulation. The Article then considers the governance challenges created by these interactions, with a focus on inadequate regulatory authority, simultaneous overlap and fragmentation of regulation and institutions, and the difficulties of including key public and private stakeholders while avoiding inappropriate regulatory capture, such as when powerful utilities or oil companies gain control of regulatory processes to protect their private interests at the expense of the public. The Article concludes by proposing dynamic federalism principles for designing institutions that are responsive to these governance challenges through (1) creating needed authority; (2) reducing fragmentation; and (3) allowing for high levels of involvement from key public and private stakeholders that allow for meaningful input without capture. It also introduces our companion article, Hybrid Energy Governance, which applies these principles through detailed case studies to assess institutional innovation in areas critical to energy transformation.

Can energy policies affect the cycle of carbon emissions? Case study on the energy consumption of industrial terminals in Shanghai, Jiangsu and Zhejiang

The nature of nuclear law as a peculiar legal discipline has been discussed in academic scholarship since the early 1960s. A special system of principles has emerged in this field, which clearly distinguishes nuclear law from other areas of law. At the same time, there is a tacit consensus in legal academia that nuclear law represents a special (sub)discipline of energy law. Reflecting the current debate, discussing (a claimed) ‘immaturity’ of energy law, this contribution argues that energy law is obviously composed of several (sub)disciplines which are in various stages of development and different degrees of academic recognition. Thus, this article argues that rather than perceiving energy law as a coherent discipline, we must consider it an amalgam of various (sub)disciplines governing different sources of energy.

Lawyers are the engineers of the social sciences, and their doctors. Neither is good for reputation in interdisciplinary exchange. Social scientists often show contempt for a discipline that seems too close to reality to meet hard methodological standards, and too much concerned by pathologies that are beyond the reach of their methodological tools. As with many prejudices, there is a grain of truth in this one. But not all law is about making decisions and judgements in the face of a reality that is at best partly understood. The legal discipline has its own methodological standards. For the sake of internal clarity, it aims at parsimony. But modelling is not the legal path to methodological rigor. The legal equivalent boils down to one simple question: who asks whom for what? The law splits abstract problems into a series of cases. It reaches parsimony via the selection and sequence of cases. These hypothetical cases are like histological cuts through the social tissue. The legal discipline starts cutting at cases for which existing legal tools seem particularly wellsuited. If these cases are understood, the legal discipline then starts again with the more demanding ones. It is hoped that the sequence of cases leads to an understanding of situations that seemed inaccessible at the outset.

The rockburst dynamic disasters in the process of deep coal mining become more and more serious. Taking the rockburst occurred in the 23130 working face of Yuejin Coal Mine as the engineering background, we study the characteristics of mining stress field around roadway, the plastic failure morphological characteristics of surrounding rock and the accumulation/release law of elastic energy before and after burst. An analysis model quantitatively describing the physical process of rockburst in the mining roadway is established, and the calculation method of dynamic release of elastic energy in the physical process of rockburst is educed. The mechanism of rockburst in mining roadway is revealed. The results show that an “L-shaped” stress concentration zone is formed within 100 m of the 23130 working face, and the principal stress ratio of the surrounding rock of the transportation roadway is 2.59–4.26. The change of the direction of the maximum principal stress has a significant effect on the burst appearance characteristics. The failure strength of different sections of the mining roadway is characterized by the elastic energy release value. With the increase of the working face distance, the elastic energy released by burst failure and the expansion variation of failure boundary radius show a nonlinear variation law that tends to decrease steadily after sharp fluctuation. The closer to the working face, the higher the burst risk. At a distance of 10 m from the working surface, the maximum principal stress reaches its maximum value. The butterfly-shaped failure system generated by the surrounding rock of the roadway has energy self-sustainability, and the elastic energy released by the sudden expansion of the butterfly leaf is enough to cause a burst damage of 1.9 magnitude. This work could provide theoretical support for the prediction and prevention of rockburst.

The number of severe, sometimes catastrophic disruptive events has been rapidly increasing. Extreme weather events including floods, wildfires and hurricanes, and other natural disasters have become both more frequent and more severe. At the same time the COVID-19 pandemic has created a global threat to public health with huge economic effects that recovery packages tried to address. These disruptive events, alone and in combination, have dramatic consequences on nature, human life, and the economy, calling for urgent action to mitigate their causes and adapt to their impacts. In response to discourses of collapsology and end-of-growth theories, this book offers an analytical approach to developing legal responses that can help assure that needs of present and future generations can be met through energy systems, infrastructure development, and natural resources management in times of more frequent and intense disruption. ‘Resilience’ is therefore seen as a common framework for the interpretation and development of energy, infrastructure, and natural resources law. With a mix of thematic chapters and case studies from multiple jurisdictions, the book maps and assesses legal responses to disruptive nature-based events, and examines possible legal pathways for more sustainable outcomes, based on its engagement with the concept of ‘resilience’ and a social-ecological thinking.

Given the crosscutting character of climate change, improving our understanding of its integration into sectorial policy domains is relevant. We contribute empirically with a case study in Mexico where we analyze climate policy integration in terms of policy outputs and processes. Firstly, we adapted an approach to measure events of regulatory output change and applied it to our original dataset of changes in Mexican environmental and energy laws and regulations between 1997 and 2018. Secondly, based on expert interviews and using the multiple streams as theoretical framework, we explored the role of policy entrepreneurs on influencing policy change towards climate policy integration, in particular the enactment of the law for energy transition in 2015. The Energy Reform in 2013, which aimed at increasing private participation in fossil fuels production, was framed as a solution to the problem of ‘uncertainties over oil reserves and energy demand growth’. Paradoxically, policy entrepreneurs advocated for a transition toward clean electricity as a solution to the same problem. They also identified the 21st UNFCCC Conference of the Parties as an event influencing the political stream and opening a window of opportunity for the enactment of the law for energy transition.

Access to energy has been, especially in recent times after the Ukrainian War and recent natural hazards, a significant theme among European policymakers. Still, there are some parts of Italy, especially the Marche region, which since 2016 are living in an emergency because of the seismic events. In light of this situation, this paper investigates the policy adopted by the Italian Government and the ARERA Authority in regard to electricity bills in the territories affected by the natural hazard. In particular, this paper aims to highlight how, in lands triggered by a disaster, the most convenient solution in order to combat the accessibility of energy and the consequent energy poverty of the evacuees, is the creation of energy communities. In this regard – also thanks to the Directive EU 2018/ 2001 (also known for RED II Directive), the funds of the Next Generation EU and the recent Marche Regional Law of 11 June 2021 n. 10 which can contribute to an increase in the creation by rural areas communities of new energy communities – there are already case studies and best practices such as those Macerata Feltria (Pesaro-Urbino) and the future developments of Muccia and Pieve Torina (both located in the crater of the Marche region in the province of Macerata), than can be taken as an example for future developments of energy communities in the Italian rural areas affected by a disaster. Keywords: Energy Law, Energy Bills, Disaster Law, Energy Communities, Prosumerism

The Covid-19 pandemic has highlighted once again the existing legal vacuums in the energy sector when it comes to addressing various situations such as disaster risk management and reduction. This reality can be seen in various instances where other regulatory frameworks are used instead of energy law. This article seeks to address the existing legal vacuum in the energy field in the context of pre- and post-energy disasters, such as the Covid-19 health disaster resulting in negative consequences for the energy sector. The author argues that international disaster law, taking the Sendai Framework for Disaster Risk Reduction as a case study, can provide guidance when it comes to managing pre- and post-energy disasters scenarios. The author will support this claim by examining the potential use of the Sendai Framework priorities as guidance for policymakers in addressing disasters in the energy field while stressing the need to strike a balance between using existing binding and nonbinding frameworks from other regulatory fields to address the legal gaps and making sure that energy law applies in such situations.