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Abstract

Achieving a radical and swift transition to low carbon renewable energy is a pressing global challenge. Yet, energy transitions continue to confront numerous obstacles. Dominant private and public players persistently slow or block change. Controversial hydrocarbon bridging fuels, like unconventional gas, also continue to expand in the name of energy reliability and affordability. And even where renewable developments shift from being niche to mainstream power sources, concerns are increasingly raised about their impacts on the environment, biodiversity, food and water. At the heart of all these issues are law and governance, which have been intense sites of contestation over the nature and outcomes of regulating energy transitions. This article and Special Issue brings together leading environmental law scholars to take a hard look at key energy experiences in Australia and globally, and to map out how to use law and governance to achieve swift and more environmentally sustainable energy transitions. This article sets the scene for the Special Issue by outlining some core challenges for energy transitions, before laying out two key questions explored in the subsequent nine articles, namely: what has been the role of law in governing energy transitions; and what law and governance mechanisms might be needed to better govern energy transitions and their nexus with the environment? The article concludes by summarising and synthesising responses to these questions.
Preprint Draft Paper. An accepted and revised version of this paper appears in the Special Issue entitled “Energy transitions
and their environmental nexus” published by Thomson Reuters in the Environmental and Planning Law Journal (2019)
36(5) 427-436. For further information see: http://sites.thomsonreuters.com.au/journals/2019/10/11/eplj-special-issue-on-
governing-energy-transitions-unconventional-gas-renewables-and-their-environmental-nexus/ !
Governing Energy Transitions: Unconventional Gas,
Renewables and their Environmental Nexus
Cameron Holley, Amanda Kennedy, Tariro Mutongwizo and Clifford Shearing*
Achieving a radical and swift transition to low carbon renewable energy is a pressing global
challenge. Yet, energy transitions continue to confront numerous obstacles. Dominant private
and public players persistently slow or block change. Controversial hydrocarbon bridging
fuels, like unconventional gas, also continue to expand in the name of energy reliability and
affordability. And even where renewable developments shift from being niche to mainstream
power sources, concerns are increasingly raised about their impacts on the environment,
biodiversity, food and water. At the heart of all these issues are law and governance, which
have been intense sites of contestation over the nature and outcomes of regulating energy
transitions. This Special Issue brings together leading environmental law scholars to take a
hard look at key energy experiences in Australia and globally, and to map out how to use law
and governance to achieve swift and more environmentally sustainable energy transitions.
This article sets the scene for the Special Issue by outlining some core challenges for energy
transitions, before laying out two key questions explored in the subsequent nine articles,
namely: what has been the role of law in governing energy transitions; and what law and
governance mechanisms might be needed to better govern energy transitions and their nexus
with the environment? The article concludes by summarising and synthesising responses to
these questions.
INTRODUCTION
The threat of climate change realised through harms such as unprecedented cyclones and droughts and the
linkages between these harms and the carbon emissions of contemporary economies, has given rise to
increasingly urgent demands for a radical transition from high to low carbon energy sources.
1
These calls are
widespread, and arise at multiple levels, including the Governor of the Bank of England,
2
the Extinction
Rebellion,
3
the Sustainable Development Goals,
4
and the Intergovernmental Panel on Climate Change (IPCC).
Indeed, the IPCC suggest that global net emissions will “need to fall by 45% from 2010 levels by 2030,
reaching net zero around 2050”.
5
While such a shift is paramount to securing a habitable planet, global progress
towards clean energy continues to be slow. According to the International Energy Agency, even with rapid
growth in low-carbon generation over the last five years, as of 2018 coal remained the largest source of
electricity generation, while power sector carbon emissions continued to rise by 2.5%.
6
There are many multifaceted causes of this continued lock-in to carbon intensive fuels, just as there are many
emerging forms of institutional innovation and actors seeking to destabilize and change dominant energy
regimes and advance a lower carbon energy transition.
7
Given the heavy investments made in high carbon
energy sources from the birth of the first industrial revolution to the present ranging from locating and
* Cameron Holley is Professor, UNSW Law, UNSW Sydney, member of the Connected Waters Initiative Research Centre and the UNSW
Global Water Institute; Amanda Kennedy is Professor, Queensland University of Technology, Brisbane; Dr Tariro Mutongwizo is
Postdoctoral Fellow, UNSW Law, UNSW Sydney; Clifford Shearing is Professor, Griffith Criminology Institute, and School of
Criminology and Criminal Justice, Griffith University, Faculty of Law, University of Cape Town and School of Criminology, University of
Montreal. This Special Issue and article draw on work presented at a PLuS Alliance workshop, which was funded by the PLuS Alliance and
an Australian Research Council Discovery Grant (DP170100281). We are grateful for the research assistance of Georgia Regan and for the
support of our PLuS Alliance collaborators Diana Bowman, Rhett Larson, Megan Bowman and Leslie-Anne Duvic-Paoli. We also thank
Paul Curnow, Baker McKenzie, Justice Rachel Pepper and UNSW Law for hosting and presenting at the workshop in February 2019.
1
International Energy Agency, CO2 emissions from fuel combustion (IEA, 2018), xix.
2
Mark Carney, Governor Bank of England, A New Horizon(European Commission Conference: A global approach to sustainable
finance, 21 March 2019) <https://www.bankofengland.co.uk/-/media/boe/files/speech/2019/a-new-horizon-speech-by-mark-carney>.
3
Extinction Rebellion, Our Demands (XR, 2019) <https://rebellion.earth/the-truth/demands/>.
4
Sustainable Development Goal 7 (UN, 2015) <https://www.sdgfund.org/goal-7-affordable-and-clean-energy>; See also Paris Agreement,
Paris, 12 Dec. 2015, entered into force 4 November 2016, C.N.92.2016.TREATIES-XXVII.7.d of 17 March 2016. the Paris Agreement
5
IPCC, Special Report, Global Warming of 1.5º (IPCC, 2018) <https://www.ipcc.ch/sr15/>.
6
International Energy Agency, “Power(IEA, 2019) <https://www.iea.org/tcep/power/>.
7
Donald Zillman et al (eds) Innovation in Energy Law and Technology: Dynamic Solutions for Energy Transitions (Oxford, 2018);
Benjamin K. Sovacool, How long will it take? Conceptualizing the temporal dynamics of energy transitions(2016) 13 Energy Res. Soc.
Sci. 205; Derk Loorbach, Niki Frantzeskaki and Flor Avelino, “Sustainability Transitions Research: Transforming Science and Practice for
Societal Change” (2017) 42 Annual Review of Environment and Resources 599.
extracting coal and oil deposits and the infrastructural investments associated with utilizing these energy sources
it is not surprising that transitions from high carbon fossil fuel based economies to clean energy and low
carbon economies have been slow to materialise. In Australia, for instance, despite aspirations for lower
emissions and orderly transitions expressed under national blueprints like the Finkel Review, governmental
responses, including national commitments under the Paris Agreement and fluctuating energy policies (e.g. the
National Energy Guarantee, a price safety net and underwriting new generation investments) have faced
significant criticism for their failure to achieve swift and sufficiently large-scale energy transitions.
8
Generally speaking, advocates of these developments have argued that reducing a reliance on traditional fossil
fuels like coal and oil, given the contexts of today’s energy markets, requires shifting the mix of primary energy
sources, rather than an abrupt transition, and that realising this requires the use of hydrocarbons.
9
Within this
context the speedy transition to unconventional gas in recent decades Smil regards these developments as
“perhaps the most remarkable, and consequential, expansion of resource extraction in modern history” has
seen it play an increasingly vital role in meeting human energy requirements.
10
Apart from the obvious benefit
of providing a purportedly lower carbon hydrocarbon source to the energy mix that can reduce dependence on
coal, there are many positive social and economic aspects to unconventional gas development, including
infrastructure enhancements, job creation and investment, as well as supporting the public purse through
royalties and tax revenue.
11
With numerous jurisdictions continuing to support exploration of unconventional
gas supplies, and new technologies for extracting shale gas and coal bed methane/coal seam gas (CSG)
advancing rapidly, unconventional gas is now considered a global phenomenon.
12
Australia alone is home to
significant unconventional gas resources, including approximately ten percent of the world’s CSG reserves.
13
Of
global gas exporters, it is the fourth largest, and presently over 90 percent of Australia’s CSG production is
occurring in Queensland.
14
Despite plans for its expansion (albeit with potentially more mature regulatory
frameworks),
15
this energy resource is seemingly reaching a crossroads, with concerns over its own climate
impacts
16
giving rise to contentions that unconventional gas simply delays an urgent transition and
misunderstands the magnitude of the environmental crisis facing humanity and many other species. Those
concerned also point to the environmental impacts of unconventional gas exploration and production, including
air pollution, noise and amenity concerns, subsidence, changes in the use of food-producing land, water
pollution, and reduced water availability.
17
8
See e.g. A Finkel et al (Expert Panel), Independent Review into the Future Security of the National Electricity Market: Blueprint for the
Future (9 June 2017) <https://www.energy.gov.au/government-priorities/energy-markets/independent-review-future-security-national-
electricity-market>;Chris McGrath, “Paris agreement goals slipping away and with them, Australia’s chance to save the great barrier reef”
(2019) 36 Environmental and Planning Law Journal 3; Simon Anderson, “A Study of the National Energy Guarantee and Federal
Governance Frameworks within the Power Generation Industry” (2019) 36 Environmental and Planning Law Journal 7. For recent policy
developments, including the Competition and Consumer (Industry Code Electricity Retail) Regulations 2019 (Cth), see Department of the
Environment and Energy, “Affordable, reliable power for Australians” (Aus Gov, 2019) <https://www.energy.gov.au/about-government-
priorities/affordable-reliable-power-australians>/.
9
Michael Lazarus, et al., ‘Natural Gas: Guardrails for a Potential Climate Bridge’ in The New Climate Economy (2015) 1; IEA, Energy
Supply Security. Emergency responses of IEA countries (IEA, 2014) 13; Ben Wah Ang, W Choong & T Ng, Energy security: definitions,
dimensions and indexes(2015) 42 Renewable and Sustainable Energy Review 1077; IEA, Energy and Air Pollution 2 (IEA, 2016).
10
V Smil, Natural Gas: Fuel for the 21st Century (Wiley, 2015), 133. In Australia, for instance, coal seam gas accounted for one-third of
Australian gas production and nearly two-thirds of east coast gas production in 201617; Department of the Environment and Energy,
Australian Energy Update 2018 (Aus Gov, 2018).
11
Lazarus et al, n 9, 1; Smil, n 2. Note that some economic changes, such as in rural communities, have also engendered increases in living
costs and a fly-in-fly-out work force that can disrupt previously tight-knit agricultural communities Jamie Pittock, Karen Hussey & Samuel
McGlennon, Australian Climate, Energy and Water Policies: conflicts and synergies (2013) 44 Australian Geographer 1, 3.
12
L Young, Hydraulic Fracturing (Fracking) in Australia” (2019) 36 Environmental and Planning Law Journal 277, 283 noting in the
United States an energy mix of 63% natural gas, 31% renewable, and the remainder from coal fired power, pointing to similar trends in
Australia; World Energy Council (WEC), World Energy Resources, Unconventional gas, a global phenomenon (WEC, 2016); Standing
Council on Energy & Resources, The National Harmonised Regulatory Framework for Coal Seam Gas (Aus Gov, 2013).
13
. Cameron Holley & Amanda Kennedy, Governing the Energy-Water-Food Nexus: Regulating Unconventional Gas Development in
Queensland, Australia(2019) 59(2) Jurimetrics 233, 244; Andrea Walton et al., Resilience in a Changing Community Landscape of Coal
Seam Gas: Chinchilla in Southern Queensland”, (2013) 3 Journal of Economic and Social Policy 3, 4.
14
. Holley & Kennedy, n 13, 244; Petroleum and Coal Seam Gas (Business Queensland, 2019) [https://perma.cc/FQ5Q-YS8G]; Madeline
Taylor and Tina Hunter, Agricultural Land Use and Natural Gas Extraction Conflicts: A Global Socio-Legal Perspective (Routledge, 2018).
15
The Scientific Inquiry into Hydraulic Fracturing in the Northern Territory, Final Report of the Scientific Inquiry into Hydraulic
Fracturing in the Northern Territory (NT, 2018). See also the recent consultation on a Regulation Impact Statement examining options to
improve transparency in the eastern and northern Australian gas markets, COAG Energy Council, Measures to Improve Transparency in
the Gas Market Consultation” (COAG, 2019) <http://coagenergycouncil.gov.au/publications/measures-improve-transparency-gas-market-
consultation>.
16
Robert W. Howarth,Ideas and perspectives: is shale gas a major driver of recent increase in global atmospheric methane? (2019) 16
Biogeosciences 3033; John R. Worden et al, “Reduced biomass burning emissions reconcile conflicting estimates of the post-2006
atmospheric methane budget” (2017) 8 Nature Communications 2227; Bryce Kelly et al., Fugitive Methane Emissions from Natural,
Urban, Agricultural, and Energy-Production Landscapes of Eastern Australia, (2015) 17 Geophysical Res. Abstracts 1.
17
See, eg. Amanda Kennedy, Environmental justice and land use conflict: The governance of mineral and gas resource development.
(Routledge, 2017); Cameron Holley & Darren Sinclair, Rethinking Australian Water Law and Governance: Successes, Challenges And
Such unrest has only added to the growing pursuit (from both private and public sectors) of renewable energy
resources, not least solar and wind power. With the rapid development of new renewable and energy storage
technologies, smart grids and distributed generation, the global transition to low-emission energy sources has
seen many nations and their jurisdictions take advantage of emerging economic opportunities and governance.
The transition pathways, however, have often been highly uneven and are sometimes blocked or redirected.
Australia’s national pursuit of renewables has largely relied on the Renewable Energy Target and investment in
renewables (e.g. see ARENA’s investment and knowledge sharing activities, and recent plans to expand the
Snowy Hydro scheme),
18
while state governments have established additional schemes and targets (Queensland,
for instance, has set a target to achieve 50% renewable energy by 2030 and seeks to transition to low-carbon
energy sector under its Powering Queensland Plan).
19
While these developments have achieved some success, as
noted above, other (and often more established) energy sources also compete for attention as ‘transition’
sources, including unconventional gas, but also nuclear (including the recent Inquiry into the prerequisites for
nuclear energy in Australia),
20
and even coal where it is to be accompanied by new technologies, such as carbon
capture and storage, and more recently, hydrogen.
21
Moreover, as is increasingly becoming clear, the required
scale of a renewable transition will not be impact free. Growing concerns have been raised about the effects of
solar and wind farms on agriculture, biodiversity and water.
22
For example, the increasing expansion of onshore
and offshore wind farms as an alternative to coal generated energy are creating flashpoints for conflict between
renewable energy producers, biodiversity, endangered species, agriculture and marine aquaculture.
23
As the
former Australian Greens Party leader Bob Brown recently illustrated, these concerns have a long history in the
environmental movement: I cut my teeth on the Franklin campaign and that's a renewable energy project that
was stopped in 1982…my history is not simply against polluting power, but is also against inappropriate
renewable energy projects where they have massive impacts on the environment, not least the living species”.
24
Contestations over new renewable developments are only likely to intensify, given estimates that renewables
will require society to devote up to 1000 times more land area to energy production than today.
25
While
enormously beneficial for reducing carbon emissions, renewables at this scale may have equally enormous
impacts on the many other sectors that have a close nexus with energy.
26
Nerini et al’s recent analysis of global
energy goals suggests as much, with their work identifying at least 60 tradeoffs and 140 connections with the
many diverse targets of the 2030 Sustainable Development Agenda.
27
Future Directions(2016) 33 Environmental and Planning Law Journal 275, 277; IEA, Energy and Air Pollution (2016) 2; Maria Comino,
Poh-Ling Tan & David George, Between the cracks: Water governance in Queensland, Australia and potential cumulative impacts from
mining Coal Seam Gas(2014) 23(6) Journal of Water Law 219; Kathryn Owens, Strategic Regional Land Use Plans: Presenting the
future for coal seam gas projects in New South Wales?(2012) 29 Environmental and Planning Law Journal 113; Hennie Coetzee and
Louis J. Kotzé, ‘Shale gas development and water in South Africa: regulatory aspects’ in E Hollo (ed) Water Resource Management and the
Law (Edward Elgar, 2017).
18
Australian Renewable Energy Agency (ARENA), “About” (Aus Gov, 2019) < https://arena.gov.au/about/>; Department of the
Environment and Energy, Snowy 2.0 - Making power more affordable and reliable (Aus Gov, 2019). For a recent discussion of the
Mandatory Renewable Energy Target and related voluntary GreenPower schemes, see David Leary “GreenPower and Renewable Energy:
Consumer Protection, Trade Practices and Energy Market Regulation in Australia” (2019) 36 Environmental and Planning Law Journal
113.
19
Department of Natural Resources Mines and Energy, “Powering Queensland Plan” (Qld Gov, 2019) <
https://www.dnrme.qld.gov.au/energy/initiatives/powering-queensland> .
20
House of Representatives Standing Committee on the Environment and Energy, “Inquiry into the prerequisites for nuclear energy in
Australia” (Aus Gov, 2019)
<https://www.aph.gov.au/Parliamentary_Business/Committees/House/Environment_and_Energy/Nuclearenery>.
21
On carbon abatement generally, see the Clean Energy Regulator, “Emissions Reduction Fund” (Aus Gov, 2019)
<http://www.cleanenergyregulator.gov.au/ERF/Pages/default.aspx>. For a discussion of other energy technologies and climate responses,
see, e.g. M Vella, “Waste to Energy or Waste of Energy: Social and Regulatory Barriers for Waste-to-Energy in Australia” (2019) 36
Environmental and Planning Law Journal 262; Jan McDonald et al, Governing geoengineering research for the Great Barrier Reef
(2019) 19(7) Climate Policy 801.
22
See US Energy Information Administration, Annual Energy Outlook. (US EIA, 2017).
<https://www.eia.gov/outlooks/aeo/pdf/0383%282017%29.pdf>; Georgina Davis, Planning and Siting Considerations for Renewable
Energy: Agricultural Coexistence in Queensland, Australia(2019) Environmental and Planning Law Journal (forthcoming, 2019).
23
See Robin Kundis Craig, Harvest the Wind, Harvest Your Dinner: Using Law to Encourage an Offshore Energy-Food Multiple-Use
Nexus(2018) 59(1) Jurimetrics 61.
24
Quoted in R Bolger, Bob Brown calls for 'moderation' on renewable energy proposals” (SBS news, 16/07/2019) <https://www.sbs.com.au/news/bob-
brown-calls-for-moderation-on-renewable-energy-proposals>.
25
Smil quoted in P Voosen, “Meet Vaclav Smil, the man who has quietly shaped how the world thinks about energy” (2018) Science
(March 21 2018) doi:10.1126/science.aat6429; P Voosen, The realist(2018) 359 (6382) Science 1320. For other views see, Arnulf
Grubler et al, A low energy demand scenario for meeting the 1.5°C target and sustainable development goals(2018) 3 Nature Energy
515 noting that down-sizing the global energy system dramatically improves the feasibility of a low-carbon supply-side transformation.
26
Rhett Larson, Cameron Holley and Diana Bowman, The Energy-Water-Food Nexus: An introduction” (2018) 59(1) Jurimetrics 1; Lauren
Butterly, Fishing for Rights: The Water-Food Nexus and Indigenous Fishing in Australia’s Northern Territory(2018) 59(1) Jurimetrics
43.
27
Francesco Fuso Nerini et al,Mapping synergies and trade-offs between energy and the Sustainable Development Goals (2018) 3 Nature
Energy 10.
How then should we facilitate transitions to low carbon energy systems in a way that can provide accessible,
reliable and affordable supplies of energy, while minimising impacts on ecosystems and the environment?
Given the complexity of these challenges, it is perhaps unsurprising that the response has been equally
multifaceted and polycentric. At international, regional, national and local levels, governments, corporations and
non-government organisations are increasingly participating in energy transition processes that can be thought
of as exemplifying governance laboratoriesthat represent lived and real time experiments in what works and
what does not.
28
It is from these experiments that this Special Issue seeks to learn and bring to light law and
governance insights, including the management of concerns and contests of different interests affected by
energy transitions.
This Special Issue comprises a selection of nine articles from scholars who participated in the second annual
Rethinking Law in a Nexus Future” PLuS Alliance workshop series entitled Energy Transitions: Governing
Unconventional Gas, Renewables and the Energy-Environment Nexus.
29
The PLuS Alliance is a collaborative
relationship between Arizona State University (ASU), Kings College London (KCL), and the University of New
South Wales (UNSW Sydney). Building on the inaugural workshop in 2018, which examined the challenges
and opportunities surrounding the intersection of laws governing the energy-water-food nexus,
30
this second
collaboration brought together professionals and scholars from the Alliance and around the world to discuss the
challenges and opportunities surrounding the intersection of laws governing energy transitions and their
environmental impacts. The articles selected for this issue were presented, discussed, and critically evaluated at
the workshop. They consider a host of issues including emerging international initiatives for tackling energy
transitions and the ability of international environmental law and the Paris Climate Agreement of 2015 to
facilitate an urgent transition to an alternative, de-carbonised, and more sustainable global energy paradigm.
31
Scrutiny is also given to the growing prominence of corporate law tools and shifts in the role of the private
sector from being incumbents inclined to block change, to potential new fulcrums of energy transition
governance.
32
The remaining papers in the Special Issue critically examine the most major energy transition
experience to date, zooming in on the boom in unconventional gas development over the preceding ten years.
33
Comparing and contrasting significant legal and regulatory developments and on ground experiences of
unconventional gas in Australia and internationally, the articles drill down into moral complicity, climate
change and gas exports,
34
the use (and absence) or strategic planning regimes in the United States,
35
as well as
the management of unconventional gas in transboundary impacts such as the Delaware River Basin in the
United States, the Guarani Aquifer in South America and the Great Artesian Basin in Australia.
36
Federal and
state regulatory regimes in Texas, Colorado, Queensland and New South Wales are also explored through lenses
of regulatory capture,
37
cumulative effects
38
and risk management.
39
Finally, the potential for governing through
new informational tools that quantify the water use of unconventional gas relative to other renewable and non-
renewable energy sources are considered.
40
This collection of papers seeks to learn how law and governance has
and should manage energy transitions and their environmental impacts, as well as explore ongoing governance
28
Claudia Pahl-Wostl, Water governance in the face of global change (Springer, 2015) 267; Gráinne De Búrca, Robert O. Keohane and
Charles Sabel, “New Modes of Pluralist Global Governance” (2013) 45 New York University Journal of International Law & Politics 723.
29
The workshop was held on 5-6 February 2019 at UNSW Law and Baker McKenzie, Sydney. Additional papers from the workshop will
appear in later volumes of the EPLJ, including Samantha Hepburn, “Ownership and Royalty Sharing for Landowners affected by onshore
Coal Seam Gas Development” (2019) Environmental and Planning Law Journal (forthcoming 2019); Darren Sinclair and Larissa
Schneider, “The Role Of Mercury Emissions In Transitioning From Coal Fired Power Stations” (2019)Environmental and Planning Law
Journal (forthcoming 2019); Davis, n 22.
30
See Rethinking Law in a Nexus Future: Governing Energy, Water, Food, and Climate ChallengesPart I and II in Jurimetrics (2018)
59(1) and (2019) 59(2). For an overview of the papers see Larson et al, n 26.
31
Kotze full citation this issue
32
Peel et al full citation this issue
33
For an earlier analysis of Australia’s CSG Laws see EPLJ Special Issue on the regulatory responses of the Commonwealth, Queensland
and New South Wales governments to concerns about CSG developments. Rosemary Lyster, Coal seam gas in the context of global energy
and climate change scenarios(2012) 29 Environmental and Planning Law Journal 91; PL Tan, D George and M Comino,Cumulative risk
management, coal seam gas, sustainable water, and agriculture in Australia” (2015) 31(4) International Journal of Water Resources
Development 682.
34
Moss and Walsh full citation this issue.
35
Squillace full citation this issue.
36
Larson full citation this issue.
37
Holley et al full citation this issue.
38
Nelson full citation this issue.
39
Owens full citation this issue.
40
Timms et al full citation this issue.
challenges and opportunities in this complex and contested space as we move further into the Anthropocene.
41
Ultimately, we hope the insights and questions raised in this Special Issue will encourage an ongoing dialogue,
research and collaboration on the critical and interconnected issues surrounding energy transitions and the
energy-environment nexus.
While it is difficult to capture the diversity of responses and contexts examined across the articles contained in
this Special Issue, below we attempt to identify intersecting themes, which have important implications for how
law and governance scholars might approach thinking about and creating arrangements for governing energy
transitions and their environmental nexus. We turn to these issues by exploring two core questions:
what has been the role of law in governing energy transitions; and
what law and governance mechanisms might be needed to better govern energy transitions and their
nexus with the environment?
THE ROLE OF THE LAW IN GOVERNING ENERGY TRANSITIONS
A central theme in this Special Issue is to explore how far have we come in our understanding and thinking
about the role of law in governing energy transitions, and in particular, whether existing instruments and
institutions have been effective in facilitating transitions that are environmentally sustainable. The opening
article from Kotzé, entitled ‘International Environmental Law and the Anthropocene’s Energy Dilemma’, offers
a bleak assessment of the complacency and complicity of international environmental law in stalling energy
transitions, arguing that international environmental law has both promoted unsustainable energy use, and failed
to actively facilitate a global energy transition.
42
He notes five ways in which international environmental law
has created and sustained this so-called energy dilemma: the prevailing neoliberal anthropocentrism of the law;
the entanglement of international environmental law with colonialism; the entrenchment of state sovereignty in
international environmental law; the lack of an Earth systems approach; and the lack of contribution to
normative thinking around renewable and sustainable energy transformations.
These threads are picked up in different ways by the other contributors to this volume, who variously assess the
effectiveness of existing law and governance mechanisms in responding to the production of energy sources in
specific jurisdictional contexts. The inherent anthropocentrism and neoliberalism observed in international
environmental law, which Kotzé argues has led to the present situation of energy over-consumption, is echoed
in many state regulatory approaches which objectify the environment and prioritise development. For example,
as Peel, Foerster, McDonnell and Osofsky observe in ‘Governing the Energy Transition: The Role of Corporate
Law Tools’, governments the world over continue to advocate for fossil fuel development, creating a climate
policy disconnect and widening the gap between pledged emissions reductions and the reality of the cuts
required. As noted further below, Peel et al discuss the growth of corporate law as a means through which
energy transitions can be governed. However, as they argue, motivating corporate behaviour to go beyond what
is dictated by private interests even enlightened self-interested will likely require clearer signals from
regulators and governments on the overall direction of climate policy development. To date, such signals have
been lacking in Australia, due to limited regulatory controls on corporate emissions and governments’
reluctance to embrace mandatory climate risk disclosure requirements.
In ‘Complicity in Climate Harms: A Case Study of Australia’s Gas Export Industry’, Moss and Walsh go
further, arguing (at least in the case of Australia) that the present energy policy settingwith its emphasis on
high volume export supply of natural gas represents a ‘problematic and inadequate’ response to climate
change that creates a moral culpability for harm. In particular, the power of influence that both governments and
industry have on shaping energy policy are identified as contributing significantly to the risk of climate harm.
Kotzé’s and others explication of the weaknesses of siloed and sectoral governance of energy development also
found traction with other contributors. In ‘Smart Planning for Unconventional Oil and Gas Development’,
Squillace notes that segmented and reactive law and regulatory approaches to oil and gas development
assessment have failed to quell community concerns and resolve ongoing environmental challenges.
Meanwhile, in ‘Fracking and Transboundary Water Management’, Larson notes the risks of transboundary
impacts from fracking upon water resources, and draws out some of the difficulties that can arise where one
state (national or international) has greater power to set the governance agenda over shared resources. These
contributions each indicate that where governance mechanisms fail to capture the realities of Earth system
interconnectivity its interlinked ecological and social components, and their spatial and temporal dynamics
they are destined to keep the planet on an unsustainable trajectory. In response, Larson takes inspiration from
Australia and the Americas to lays out possible roles for the law and governance of sustainable transitions in
unconventional gas, including establishing or promoting a fiduciary relationship between transboundary
41
See Cameron Holley et al., Environmental Security and the Anthropocene: Law, Criminology, and International Relations(2018) 14
Annual Review of Law and Social Sciences 185.
42
For further discussion on innovations in international law see, Neil Craik et al (eds), Global Environmental Change and Innovation in
International Law (Cambridge University Press, 2018).
member states and the use of trusts to pay for remediation for transboundary contamination of connected water
supplies or lowered water tables.
43
Holley, Mutongwizo, Shearing and Kennedy, in ‘Shaping Unconventional Gas Regulation: Industry Influence
and Risks of Agency Capture in Texas, Colorado and Queensland’, offer an empirical analysis of
unconventional gas regulation in these jurisdictions, and find evidence that even perceptions of industry
influence can hamper the effectiveness of efforts to use the law to regulate energy transitions. In a similar vein,
several of the respondents in Holley et al’s research point to the long-term legacies evident within particular
state legal responses to energy transitions, which have entrenched institutional inertia and further instilled a
preference for industry over environmental and social concerns. In terms of lessons for governing energy
transitions, this raises questions around the capacity for existing governance systems to break free of the
historical vestiges of resource exploitation and economic growth, in order to confront emerging risks as well as
opportunities.
Kotzé’s final charge against international environmental law’s failure to confront the socio-ecological impacts
of the current fossil fuel-intensive energy paradigm is its apathy towards normative action around energy
transitions. Filtering down to the state level, there is certainly evidence that normative ambition is lacking; one
need look no further than the failure to translate the rhetoric from the Sustainable Development Goals (SDGs)
into binding and meaningful international and national laws and regulations. Nelson’sBig Time: An Empirical
Analysis of Regulating the Cumulative Environmental Effects of Coal Seam Gas Extraction Under Australian
Federal Environmental Law’, highlights the ‘short-sightedness’ of the relevant regulatory regime and how
principles of ecologically sustainable development such as intergenerational equity and the precautionary
principle get ‘lost in translation’ as narrow interpretations of the temporal impacts of development in
cumulative assessment mechanisms both fail to appreciate prior harms, and underestimate future risks.
Likewise, Owens, in ‘Coal Seam Gas Regulation in New South Wales: Drawing the Connections Between Risk,
Communication and Trust’, highlights how a governance system which retrofitted existing regulatory
frameworks and was largely geared towards the exploitation of resources, ultimately failed to meet the
contemporary challenges presented by emerging energy technologies of unconventional gas. This echoes some
of Kotzé’s observations around the influence of colonialism and permanent state sovereignty over natural
resources upon international environmental law. As he notes, ‘[a]s long as cheap fossil fuels are available to
exploit, and as long as corporations prop up state coffers in doing so, there are few incentives for governments
to force corporations to restrict their activities or to shift their focus to renewable resources instead’.
44
Taking a
slightly different tack, Timms, Nair and Nelson, in ‘More Joules Per Drop How Much Water Does
Unconventional Gas Use Compared to Other Energy Sources and what are the Legal Implications?’, suggest
that a lack of reliable data on water and energy use constrains opportunities for innovation in assessing energy
policy mixes, arguing that movement beyond ‘business-as-usual’ approaches opens up new ways of seeing
problems as well as possible solutions.
Overall, the contributors to this volume emphasise that, despite various attempts, the law at both national and
international levels has struggled to make sufficiently swift and widespread inroads towards a low carbon and
sustainable transition. Certainly, in the case of unconventional gas, which was initially lauded as a ‘bridge’ to
low carbon energy solutions, the law has arguably acted to facilitate development; in many instances, it has had
less concern for longer-term transitional goals, and has failed to attend to the complex socio-environmental
concerns that have arisen. While some have argued that the recent levelling of global emissions from the
burning of fossil fuels is a sign that climate mitigation policies and investments are beginning to bear fruit, far
more urgent efforts are arguably required to actively ‘bend the greenhouse-gas emissions curve downwards’.
45
Some have suggested this must include a significant increase in legal designs and incentives that foster
renewable energy sources, and no further approval of coal-fired power plants beyond 2020 (with existing ones
being actively retired).
46
The achievement of such aims will require a ‘deep integration’
47
of knowledge from
not only science, but social science, in order to effectively shift human behaviour towards respecting planetary
boundaries, and perhaps even a more radical rethink of a more responsive, more pluralist, and more ecological
makeover of the governance system as a whole.
48
43
For a related discussion on transboundary issues for rivers and groundwater see Rhett B. Larson, Colorado River Lessons for
International Water Law (2018) 59(1) Jurimetrics 83; Sharon B. Megdal & Jacob D. Petersen-Perlman, Decentralized Groundwater
Governance and Water Nexus Implications in the United States(2018) 59(1) Jurimetrics 99.
44
Kotze full citation this issue.
45
C Figueres et al. Three years to safeguard our climate” (2017) 546 Nature 593.
46
Figueres, n 45; Australian Panel of Experts on Environmental Law, Energy Regulation (Technical Paper 5, 2017).
47
Will Steffen et al, “Trajectories of the Earth System in the Anthropocene” (2018) 115(33) Proceedings of the National Academy of
Sciences 8252.
48
Christine Parker, Fiona Haines & Laura Boehm, The Promise of Ecological Regulation: The Case of Intensive Meat(2018) 59(1)
Jurimetrics 15; Janice Gray, Ecological Integrity as an Alternative Frame for the Water, Unconventional Gas, and Food Nexus(2019)
59(2) Jurimetrics 193.
WHAT LAW AND GOVERNANCE MECHANISMS MIGHT BE NEEDED TO BETTER GOVERN
ENERGY TRANSITIONS AND THEIR NEXUS WITH THE ENVIRONMENT?
Finding that the law, in its present shape, is falling short in facilitating desired energy transitions, the majority of
the articles argue for law and governance reform to better achieve swift transitions, while managing their
environmental impacts. However, there was less agreement among our authors on the optimal responses to this
challenge. Broadly speaking, at least three themes for improving the governance of energy transitions were
evident across the articlessome proposed the direct force of the law to command radical transitions, others
argue the key for achieving lower carbon and more environmentally sustainable transitions lies with private and
non-government governors (sometimes enhanced through the use of law), while a third and final grouping
emphasise the importance of governance responses prioritising ongoing learning, data collection, sharing and
transparency. These themes are not mutually exclusive, and sometimes overlap, however they usefully point
toward possible reform directions.
First, for at least some of the contributors, governments and the law should more directly steer desired change.
Moss and Walsh, for example, advocates for either a rapid phasing out of Australia’s gas export industry, or
having the industry accept responsibility for the consequences of its actions through offsets, and preferably,
both. The implications of extreme supply side measures such as an immediate restriction of supply would no
doubt prove problematic, at least in the current political climate. Even so, Kotze broadly agrees with Moss and
Walsh, arguing for analogous extensive reforms to address the shortcoming of international environmental law
in governing energy transitions, not least rethinking its neoliberal anthropocentric orientation, its embedded
colonial legacies and its lack of an Earth systems approach. Peel et al also express a desire for a stronger
normative role for law, arguing that corporate law tools are only likely to make a more substantial contribution
to energy transition governance where a robust public regulatory framework for greenhouse gas emissions
reduction acts as a complementary regime.
Overlapping with this line of thought, the second theme for reform argues for expanded and new roles for non-
traditional governors. For some, legal reform is needed to more meaningfully engage non-government
stakeholders in decision making. Squillace, for example, outlines a process of ‘smart planning’ for
unconventional oil and gas development, alluding to the concept of ‘smart regulation’.
49
He proposes that key
issues, such as the siting of well pads and infrastructure, the management of water resources, and the control of
air emissions, must be carefully scrutinised through public environmental impact assessment processes which
effectively and meaningfully engage the community. Owens makes a similar point, noting the need for explicit
consideration to be given to broader governance reforms that give those who are sceptical of government and
unconventional gas companies a voice, so as to initiate, criticise and action particular steps in the “risk-
handling’ process”.
Beyond utilising law to expand stakeholder involvement, other articles draw on private and new governance
trends
50
to argue that non-state actors must play key roles in energy transition governance.
51
Peel et al’s article is
emblematic of this line of thinking. As national government and international efforts under the Paris Agreement
fall short of greenhouse gas mitigation, they note that the next wave of climate action will necessarily be
motivated beyond government, and the corporate realm provides an effective avenue of private climate
governance. In particular, they discuss the potential for business risk disclosure requirements, director’s duties
and shareholder rights to influence company behaviour around climate risk and energy transition. While there
are some limitations to such approaches, most notably the abovementioned need for surrounding regulatory and
policy contexts to place greater pressure on companies, they clearly document how directors are keenly feeling
the pressure to be proactive on climate risk. Holley et al also recognise significant potential for reconfiguring
partnerships between industry, government and society, not least because of the recognised vulnerabilities of
state regulatory arrangements in governing unconventional gas. They explore the potential for strategic
leveraging of community pressure on companiessocial licences and expanding the scope of private agreements
to offset power imbalances (e.g. to facilitate information and resource sharing). Timms et al complement these
suggestions, identifying opportunities for corporations to facilitate energy transitions through linking water
issues, energy issues, and environmental awareness via a joules per drop rating that may influence consumer
behaviour.
The third and final set of recommendations focuses on improving learning and the collection, sharing and
transparency of data. Echoing calls from the first PLuS Alliance workshop to investigate learning and
information generating processes for energy-water-food nexus problems,
52
a range of articles offer insights on
tools and areas of need. For instance, Peel et al consider the role of information-generating processes (including
49
Neil Gunningham, Peter Grabosky and Darren Sinclair, Smart Regulation (Oxford University Press, 1998).
50
Michael P. Vandenburgh, ‘Private Environmental Governance’ (2013) 99 Cornell L. Rev. 129; Cameron Holley, Neil Gunningham and
Clifford Shearing, New Environmental Governance (Earthscan, 2012).
51
See also Darren Sinclair, Speak Loudly and Carry a Small Stick: Prudential Regulation and the Climate, Energy, and Finance Nexus,
59(2) Jurimetrics 141. See also discussions of the need for more collaborative approaches to energy governance in Holley & Kennedy, n
12. On the importance of engaging non-traditional actors, see Emily Hammond, The Energy In-Betweens (2019) 59(2) Jurimetrics 167.
52
Larson et al, n 26.
ensuring appropriate disclosure regarding climate change risks) in the corporate sphere, noting the fundamental
role law plays in establishing disclosure rules to help advance acceptance and practice of climate risk as a
material business risk, and the need for disclosure by many companies. Timms et al, pointing out the ‘hidden
flow of water’ in the use of electricity, propose a rethink of how data on water use could provide a better
understanding of the water-related risks of energy. They detail a wide range of potential law and policy contexts
throughout different law-related stages of an energy development that might be informed by a joules per drop
analysis, including investment-related decisions about specific energy projects, environmental impact
assessments and water entitlement applications, water-related risks during the operation of the project and
consumers energy purchase options. As they argue, existing levels of public concern about unconventional gas
water use may lay the foundation for broader political acceptability of incorporating a joules per drop approach
in energy-related decision-making contexts more broadly.
Owens similarly highlights the importance of data transparency to effective energy transition governance,
pointing to the “close connection between risk communication and public trustand calling for processes of
consultation and deliberation needed to facilitate information flows and mutual learning between disparate
stakeholder groups affected by energy developments. Sharing and diffusing information among multiple
stakeholders, both for better governance and accountability, was similarly endorsed by Holley et al, who draw
on democratic experimentalist scholarship
53
to characterise the energy space as an area ripe for spreading
learning, ratcheting up performance of diverse state regulatory regimes and potentially lessen vulnerabilities to
industry influence.
Larson places equal importance on facilitating information exchange between jurisdictions (e.g. a fate-and-
transport model to evaluate potential transboundary impacts from fracking operations) as well as functions such
as dispute resolution and mediation to achieve more holistic forms of energy governance. Central to these and
other energy governance processes, as Nelson stresses, is the need for greater information regarding the
cumulative effects of certain energy technologies and industries. Importantly, Nelson draws attention to the very
long-term nature of the losses that are potentially incurred by future generations as a result of unconventional
gas (and indeed other energy) projects, and the desirability of spending a relatively short time up-front to best
understand these effects. Squillaces proposed reforms in the United States context complements Nelson’s
approach, as he argues for the adoption of adaptive management techniques.
54
This would involve investment
and obligations for post-decision monitoring to ensure that the impacts that were predicted at the time of energy
decision-making are largely the impacts that actually occur, and further, that the impacts that do occur do not
cause any more harm to the public and the environment than was anticipated. To the extent that the new data
from monitoring indicates that the original assumptions, or the conclusions from those assumptions, were
wrong, the initial decision must be adjusted in a timely fashion to reflect the new information. As he explains,
such a “learning by doing” approach is especially useful and effective in the context of large-scale planning
decisions for energy developments because large scale plans are inherently more flexible in terms of
accommodating post-decisional change.
In summary, as calls for swift energy transitions increase, the need for greater learning about what works and
what doesn’t, as well as how to manage the critical nexus linkages between energy and other sectors will no
doubt require us to further explore such adaptive and whole-of-system approaches involving mixes of direct
government law, private and non-state governors. The papers in this EPLJ special issue help advance this
thinking and lay out a research agenda for us and others to consider, learn from and enhance opportunities for
better governing energy transitions and their environmental nexus.
53
For a general discussion see James Bohman, Democratic Experimentalism (2013) 29 Social Philosophy Today 7-20; G de Búrca, R
Keohane, C Sabel, New modes of pluralist global governance” (2013) 45 New York University Journal of International Law & Politics
723.
54
See, e.g. Barbara Cosens et al., The Adaptive Water Governance Project: Assessing Law, Resilience and Governance in Regional Socio-
Ecological Water Systems Facing a Changing Climate: Introduction to NREL Edition of the Idaho Law Review(2014) 51 Idaho Law
Review 1; J Lee, “Theory to practice: Adaptive management of the groundwater impacts of Australian mining projects(2014) 31
Environmental and Planning Law Journal 251.
ResearchGate has not been able to resolve any citations for this publication.
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  • Simon Anderson
Simon Anderson, "A Study of the National Energy Guarantee and Federal Governance Frameworks within the Power Generation Industry" (2019) 36 Environmental and Planning Law Journal 7. For recent policy developments, including the Competition and Consumer (Industry Code -Electricity Retail) Regulations 2019 (Cth), see Department of the Environment and Energy, "Affordable, reliable power for Australians" (Aus Gov, 2019) <https://www.energy.gov.au/about-governmentpriorities/affordable-reliable-power-australians>/.