Abstract
Interdisciplinary energy research is essential. It advances our understanding of potential transitions from high to low carbon energy systems. However, it is easier to propose than deliver. It requires translation into a simpler language, to aid communication, but not at the expense of the conceptual language that drives our understanding of complex energy systems. We combine legal, political science, and policy studies to show how to balance the need to communicate accessibly and recognise legal and policymaking complexity. We begin with a statement so accepted in legal studies that it has become a truism: the law in the books is not the same as the law in action. The allocation of legal competences is only one influence on policymaking in a complex system. We describe three key ways to conceptualise this relationship between law, policy, and energy systems, focusing on the: (1) ‘on paper’ legal separation of powers between different governments, (2) interaction between law and policy in practice, including blurry boundaries between formal responsibility and informal influence, and (3) role of law as one of many contributors to policymaking. We use these approaches to explain the implications of Brexit for UK energy policy.
Highlights
It is a truism that law in action is not the same as the law in the books
Energy lawyers have sought to learn from other disciplines to better understand the nature of the legal problems to be addressed in the energy system and to find creative, practical solutions
Energy law academics have been concerned to strengthen the disciplinary core of the subject, motivated in part by the desire to highlight the important contribution that legal analysis can make to interdisciplinary energy research
Summary
It is a truism that law in action is not the same as the law in the books. Energy lawyers ought to be more aware of this than most. Our second aim is to analyse how governments make sense of the division of legal powers in practice, when they make decisions individually or cooperate via intergovernmental relations (IGR) to produce a more coordinated strategy Such analysis highlights the need to define policy in considerable detail and account for the contingent nature of policymaking in which, for example, some levels have primary responsibility but a limited willingness or ability to enforce policy. Our third aim is describe policymaking as a complex system from which outcomes often appear to ‘emerge’ without central government control This approach helps to account for the fact that law and policy are among many influences on energy outcomes, as well as address a tendency in energy studies to identify an often-limited role for law and policymaking as part of a larger dynamic relationship between ‘the set of technologies, physical infrastructure, institutions, policies and practices located in and associated with the UK which enable energy services to be delivered to UK consumers’ (Chaudry et al, 2009: iv). We focus on government in Scotland to provide a concrete example of delegated governance under a wider UK framework
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