Energy and Natural Resources Law

Antoine Ibrahim, Imad, ‘Legal Tools for Addressing Uncertainty and Managing Risks in the Energy Sector: Is There a Role for International Disaster Law?’ (2021) 14(3) The Journal of World Energy Law & Business 163–175
Abstract: 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.

Arlota, Carolina, ‘International Energy Law and the Paris Agreement in the Aftermath of the COVID-19 Pandemic: Challenges and Possibilities’ (2021) 27(2) ILSA Journal of International & Comparative Law_
_Abstract: This essay is based on my presentation at the 2020 International Law Weekend, organized by the American Branch of the International Law Association (ABILA). As such, this essay is not intended to be an exhaustive survey, but rather an overview of the main issues of interest. In addition, this work specifically discusses potential upcoming progress regarding international climate policies and potential setbacks. Therefore, this essay advances current knowledge on international energy law and fosters its academic autonomy. On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a pandemic. At the time, not much was known about the virus. Stringent measures imposing social distancing and closing all non-essential businesses were implemented around the globe in a joint effort to contain the virus, buying time for scientists, hospitals and medical workers to prepare. Against this background, an economic crisis started to develop based on a drop in oil prices, due to the price war between Russia and Saudi Arabia. This economic crisis and the draining of financial resources made the pandemic more severe. At the same time, comparisons between the pandemic and the climate crisis began to occur, with few paying attention to the urgency and stringency of the measures to be taken. The pandemic and climate crisis are also connected from a policy perspective because pollution, such as greenhouse gases (GHGs), adversely impacts the immune and respiratory systems, making individuals more vulnerable to the COVID-19 virus.This essay focuses on the challenges that arose due to the pandemic and how policy makers may take advantage of the economic and health crises to rapidly advance a greener economy. Steering a transition from fossil fuels to non-carbon-based sources should be an important consideration after the COVID-19 pandemic, along with the pressing concerns of justice also triggered by the pandemic. In this regard, this essay discusses the main treaties on international energy law. These treaties are aligned with international commitments, most prominently the United Nations Sustainable Development Goals (SDG). Sustainable Development Goal 13 promotes the need for immediate and effective climate action (SDG 13). This is relevant as the synergistic nature of climate threats has not been fully assessed, and the outcomes are likely to be worse than the sum of the independent parts. Therefore, this essay aims at staring a much needed conversation.

Clement-Davies, Christopher, ‘The 2000 UK Sustainable Infrastructure Summit: Grounds for Hope’ (2020) 5 International Energy Law Review 65–67
Abstract: Reflects on the 2020 UK Sustainable Infrastructure Summit, held digitally in July 2020. Reviews the main themes addressed, including the optimism over the green agenda, the Government’s infrastructure prioritisation, the clear planning and co-operation needed to achieve the goal of net zero emissions by 2050, the opportunities the coronavirus pandemic offers for switching from fossil fuels, and the sustainability of the ‘mega-rail’ projects.

Denison, MJ, ‘Force Majeure Clauses in LNG Sales and Purchase Agreements: How Do They Stand up during the Covid-19 Pandemic?’ (2021) 14(2) Journal of World Energy Law & Business 88–99
Abstract: During the Covid-19 pandemic companies have declared force majeure on contracts across the energy value chain. LNG Sales and Purchase Agreements (SPAs) are no exception. Courts in several jurisdictions have declared Covid-19 a force majeure event. Governments have issued guidelines on managing Covid-related contract disputes. The stage is set for high-value litigation turning on the validity of force majeure clauses. The purpose of this article is to help make sense of these developments. It will review the theory and application of the law of force majeure and, through comparison of six published LNG SPAs, ‘stress test’ current force majeure provisions. The article will consider how contractual risk is presently allocated in these model contracts, what drafting modifications might be applied to improve coverage, align with current case law, better reflect the market environment, and ensure contractual stability under Covid-19 conditions. The focus is on English law, given that this is the lex fori in the majority of the published contracts.

Duggal, Kabir, Rekha Rangachari and Kanika Gupta, ‘Consequences of Crisis and the Great Re-Think: COVID-19’s Impact on Energy Investment, Sustainability and the Future of International Investment Agreements’ (2021) 14(3) The Journal of World Energy Law & Business 133–146
Abstract: The COVID-19 pandemic and its resulting disruptions are having a significant impact on the global economy and international investments. Various State measures to address the pandemic are leading to widespread economic disruptions across several industries, including the energy sector. The current crisis has impacted energy demand, disrupted the global supply chain and created financial uncertainty. The pandemic has exacerbated issues relating to health, the environment, labour and human rights in the energy sector. This article seeks to understand the pandemic’s impact in shaping future human rights policy in international investment law. This article analyses current drafting trends in international investment agreements (IIAs) in 2019–2020, particularly in the context of recent developments in sustainable development and human rights. Although there are some noteworthy developments in recent IIAs, the pandemic has highlighted the need for further treaty reforms. It provides an opportunity for policymakers and corporations alike to address human rights issues and to incorporate the principles of sustainable investment into IIAs. The energy sector in particular plays a significant role in promoting sustainable development and post-COVID policy reforms will be essential for future energy security and global stability. In conclusion, this article considers the future of potential reforms in the post-COVID recovery agenda while keeping in mind energy and climate goals.

Hesselman, Marlies et al, ‘Energy Poverty in the COVID-19 Era: Mapping Global Responses in Light of Momentum for the Right to Energy’ (2021) 81 Energy Research & Social Science Article 102246

Abstract: This article presents the results of the COVID Energy Map, a novel, global mapping exercise tracking emergency responses undertaken by governments, regulators, utilities and companies in the Global North and South to mitigate energy poverty by keeping energy affordable and available (www.covidenergymap.com). The map constitutes a comprehensive open access evidence-based database, so far collating 380+ emergency measures, in 120+ countries. This paper particularly shows and discusses how the response has been developing until early 2021, highlighting various emerging longer-term concerns and strategies across Global North and South. The global COVID-19 response merits close attention in our view, as it reveals both the universal importance of household energy services access and important underlying existing narratives and policy-making questions about securing energy services access as a vital basic need, and even a ‘basic right’. In fact, the paper additionally evaluates whether and how COVID-19 responses seem to fall in step with a nascent global trend of (legal) recognition of ‘rights to energy’ in international, regional and national policy, including for example in the EU, India, Philippines, and Colombia. We conclude that while the COVID-19 response clearly reflects broad recognition of the vital importance of affordable, continuous energy services access for basic human well-being and capabilities during the pandemic, a right to energy perspective could additionally lay bare or give shape to important concerns about some households’ too minimal (insufficient) forms of modern energy access, questions of equity, and the role of the state and other actors. In terms of equity the article particularly raises issues with the manner in which support was made available only to some consumers (e.g. on-grid, off-grid, regulated, or non-regulated, post-paid or pre-paid), or only for specific fuels, and not others. In addition, the lack of attention to clean (renewable) (off-grid) energy services in COVID-19 responses is striking, and worrying, both in terms of immediate response, and green recovery from COVID-19. It is argued that a right to (clean) energy perspective would help to reflect on, and inform both the shorter-term and longer-term responses to energy poverty and COVID-19, and will positively aid the realization of sufficiently equitable, robust, modern energy systems in line with universal UN Global Sustainable Development Goal 7. Specifically, it should also help to fulfil SDG7.1.’s promise of ‘leaving no one behind’.

Marreiros Moreira, Tiago and Vanusa Gomes, ‘Parallel Battles’ [2020] (Summer) International Financial Law Review 73–75
Abstract: Reports on how Angola is addressing the challenges of reduced oil prices and the coronavirus pandemic. Considers the privatisation initiative to encourage foreign investment.

Marreiros Moreira, Tiago and Daniel Guilherme, ‘Natural Wealth’ [2020] (Summer) International Financial Law Review 73–75
Abstract: Reports on Mozambique’s response to the coronavirus emergency and its economic policy aimed at encouraging foreign investment in natural gas production.

Nupen, Lili et al, ‘Mining Law in the Midst of a Pandemic’ (2021) 21(1) Without Prejudice 9–11
Abstract: The COVID-19 pandemic has tipped the world into social and economic turmoil. Following the announcement of the national lockdown in March 2020, the operation of the South African mining industry, including ancillary and production activities relating thereto, was largely suspended, save for those operations concerning the generation of coal-fired electricity, and the production of gold.

Olawuyi, Damilola and Victoria R Nalule, ‘Ensuring Universal Access to Modern Energy Services in Times of Pandemic Related Disruptions: Legal Challenges and Potential Responses’ (2021) 12(1) Journal of Sustainable Development Law and Policy 49–71
Abstract: The significant disruptions to global energy markets across the world, in light of the COVID-19 pandemic, has shown that without robust law and governance frameworks to mitigate and manage pandemic-related disruptions to energy supply, global efforts to achieve the United Nations Sustainable Development Goals may be stifled. This article examines legal and governance aspects of designing and implementing disaster risk reduction and resilience (DRRR) frameworks to ensure the security of energy supply in times of pandemic related disruptions. Various legal and institutional challenges that arise with extant DRRR frameworks, such as weak conceptualization of pandemic related risks in extant legislation; preexisting patterns of uneven energy access; gaps in data collection and sharing with respect to pandemic risks; inadequate cross-sectoral coordination amongst institutional actors, and resource limitations are examined in order to identify the ways in which an integrative legal framework on disaster management and resilience planning can help close these gaps. The study suggests that clear and comprehensive legislation that recalibrate the scope of energy disruptions and improves data collection and cross-sectoral knowledge sharing by relevant institutional actors are significant steps towards protecting the integrity and resilience of modern energy systems in times of disruptive events such as pandemics.

Pereira, Eduardo G, Tolulope O Taiwo and Ngozi Chinwa Ole, ‘Addressing Residual Liability and Insolvency in Disused Oil and Gas Infrastructure Left in Place: The Cases of Brazil, Nigeria, and Trinidad and Tobago’ (2020) 11(2) Journal of Sustainable Development Law and Policy 326–361
Abstract: This article analyses the decommissioning framework for oil and gas infrastructures in Brazil, Nigeria, and Trinidad and Tobago. It examines whether the existing provisions in each country are able to guarantee that the government and, by extension taxpayers, do not bear the costs of decommissioning and, the consequences of insolvency on residual liabilities. An additional motivation for this examination is the ongoing Coronavirus Disease 2019 (COVID-19), a pandemic with significant adverse impacts on the oil and gas industry. A likely consequence of the economic devastation from this is the insolvency of any party with decommissioning obligations.The article argues that the provisions of the Brazil petroleum legislation on the reversion of abandoned installations to the government could imply that taxpayers have to bear the residual liabilities without any compensation from the concerned concessionaires or contractors. It also argues that the provisions of the Petroleum Law to the effect that ‘the reversion of facilities does not entail any expense whatsoever for the Brazilian government ’does not certainly translate to pecuniary compensation to the latter for assuming the future residual liabilities from abandoned installations. The Nigerian and the Trinidad &Tobago Decommissioning Framework also suffer the latter risk of the government bearing the residual liabilities for such disused installations.In Nigeria, the framework is silent on who bears the residual liabilities for disused installations. However, it is argued that the provisions of the Production Sharing Contracts on the transfer of ownership to the Nigerian government implies that they would have to bear eventual liabilities for such disused installations. Even in cases where the licensee or contractor may bear the burden of residual liabilities, the problem of future insolvency and cessation of such companies may entail that taxpayers bear the burden of residual liabilities. The article concludes with key recommendations on how to address the identified gaps using lessons from best practices such as United Kingdom, Norway and United States of America. One of such proposals is on the allocation of liability where there is a transfer of interest. Another is for joint and several or at least secondary liability of responsible parties even after decommissioning activities are over; a recommended provision to this effect is also provided. The third recommendation is on how time-constrained residual liability can be used alongside lump sum payments to limit the State’s financial exposure for decommissioning costs.

Sassi, Francesco and Francesca Frassineti, ‘Chaos at the Gates: The Impacts of the COVID-19 Pandemic and Energy Price Shocks on South Korea’s Gas Industry amid Energy Transition’ (2021) 14(3) The Journal of World Energy Law & Business 190–204
Abstract: South Korea was one of the first countries to be hit by the coronavirus infections. Having rapidly contained the health emergency in the immediate period, Seoul arguably mitigated the economic fallouts more successfully than the majority of advanced economies but could not avoid substantial losses. The far-reaching fallout of COVID-19 has been testing the country’s energy transition pathway, as actors involved are facing difficult decisions amid more stringent financial constraints to deliver their ambitious targets, including achieving carbon neutrality by 2050. Amid the combined effects of the pandemic and the global energy prices shocks, addressing the nexus between energy security on the supply side, affordability, and the safety of people’s lives and property, has become even more pressing. Against this backdrop, natural gas has tailored a special role to bridge the low carbon re-alignment of the entire Korean energy system, also in the face of the current and future challenges to Korea’s energy security. But long-drawn hurdles stemming from rather unsuccessful efforts to reform the gas system risk weakening its ability to cope with present uncertainties and heightened volatilities.

Smith, Don C, ‘COVID-19 and the Energy and Natural Resources Sectors: Little Room for Error’ (2020) 38(2) Journal of Energy & Natural Resources Law 125–129
Abstract: As this issue of the journal goes to press, the COVID-19 virus continues its relentless march around the world. He notes, however, that uninterruptable power supplies, which are ‘key to sustaining necessary utility infrastructure’, are ‘only as reliable as their access to fuel’. There are a number of key issues/concerns regarding utilities’ operations during these uncertain times: Should water and electricity utilities shut off connections for nonpayment? However, during a pandemic, mutual assistance either may not be available or may be severely limited’. That said, the fact is that in these circumstances many utility workers must be in the field repairing the lines that distribute electricity. Electricity demand is being affected by the virus. :

Wu, Lan, ‘Analysing the Renewable Energy Integration Paradigm in the Post-COVID-19 Era: An Examination of the Upcoming Energy Law of China’ (2021) 15(9) International Journal of Law and Political Sciences 888–898
Abstract: China’s declared transformation towards a ‘new electricity system dominated by renewable energy’ requires a cleaner electricity consumption mix with high shares of renewable energy sourced-electricity (RES-E). Unfortunately, integration of RES-E into Chinese electricity markets remains a problem pending more robust legal support, evidenced by the curtailment of wind and solar power due to integration constraints. The upcoming Energy Law of the PRC (Energy Law) is expected to provide such long-awaiting support and coordinate the existing diverse sector-specific laws to deal with the weak implementation that dampening the delivery of their desired regulatory effects. However, in the shadow of the COVID-19 crisis, it remains uncertain how this new Energy Law brings synergies to RES-E integration, mindful of the significant impacts of the pandemic. Through the theoretical lens of the interplay between China’s electricity market reform and legislative development, this paper investigates whether there is a paradigm shift in Energy Law regarding renewable energy integration compared with the existing sector-specific energy laws. It examines the 2020 Draft for Comments on the Energy Law and analyses its relationship with sector-specific energy laws focusing on RES-E integration. The comparison is drawn upon five critical aspects of the RES-E integration issue, including the status of renewables, marketisation, incentive schemes, consumption mechanisms, access to power grids and dispatching. The analysis shows that it is reasonable to expect a more open and well-organised electricity market, enabling the absorption of high shares of RES-E. The present paper concludes that a period of prosperous development of RES-E in the post-COVID-19 era can be anticipated with the legal support by the upcoming Energy Law. It contributes to understanding the signals China is sending regarding the transition towards a cleaner energy future.

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