The World Summit on Sustainable Development (WSSD) recommends that nations undertake the reform of their energy regimes. This is a matter of great urgency, since most national systems for generating electrical energy, or otherwise consuming fossil fuels, are the primary sources of greenhouse gases contributing to climate change. Forthcoming debates about how most effectively to implement the Kyoto Protocol will lend urgency to these WSSD recommendations. The expert authors of this book provide us with important guidance on how nations may respond to the WSSD’s recommendations on a worldwide basis.
Given the fundamental challenges posed by the reports of the Intergovernmental Panel on Climate Change (IPCC), nations inevitably will find themselves undertaking a far more fundamental assessment of their energy regimes than has ever been the case. The recommendations of the WSSD carry implications which extend well beyond even the scope of the essays provided in the chapters of this book. By way of this foreword, one may speculate on some of these implications.
One principal analytic tool of ecosystem management is measuring the flow of energy through living and inanimate systems. Since climate change functions within Earth’s biosphere, energy flow measurement should be assessed at this level, as well as within individual ecosystems. Solar energy fuels life in the biosphere, and is recycled over centuries in fossil fuels and over decades in trees. The process of photo-synthesis channels solar energy into resources that sustain all life on earth. These natural laws are only dimly perceived, however, by the utilitarian human laws that govern how short-term energy is supplied to our human economy.
As contemporary energy law has developed over the past century in each nation, it has rarely had occasion to integrate such ecological assessment into its fundamental norms or legal framework. The challenge of the coming generations is to accomplish this integration. Without integration of energy law and environmental law, human society cannot meet the goals for sustainable development envisioned at the 1992 UN Conference on Environment and Development in Rio de Janeiro. Reformation of energy laws will be an essential element of the transition to attain sustainability within national and global economies. Energy law has developed through a disjointed body of statutes and treaties. Energy law is most often considered to be merely a variant of public administrative law. However, rather than being a refined and integrated legal field of law, the laws of this sector are characterized by a lack of basic principles or integrative systems. Its costs are underwritten by application of public finance laws. It has evolved incrementally over time, in an essentially instrumental manner, reactive to perceived needs to find sources of energy to consume. Energy law facilitates the development of whatever energy system is possible in light of available technology. Its short-term goal is always to supply electricity or such other basic fuels as each society requires. Energy law’s emphasis has been on ensuring an adequate supply of energy, rather than providing energy systems with an emphasis on maximizing efficiency, respecting ecology or ensuring equity in use among all users. As a result, energy law has developed without much regard for the negative environmental impacts of energy generation. Prices for energy services for decades have ignored environmental externalities, and most often disregarded whether the poor can access such services. Most nations have been obliged to compensate for these shortcomings by enacting statutes, and negotiating several treaties, to cope with the economic “externalities” generated by the energy sector. Principal among the environmental externalities are the following: air pollution including “acid rain,” waste water pollution, significant solid and hazardous waste products from mining or combustion of coal or use of enriched uranium, disregard for the reclamation of mined lands and their ecosystems, discharge of waste heat from cooling systems into aquatic ecosystems, loss of habitat and soil salting in the wake of hydroelectric dam development, and impacts associated with constructing high tension electric power lines or natural gas pipelines.
Environmental laws currently only partially, and imperfectly, regulate these impacts of the energy sector. The continuing accumulation of such problems bodes ill for how energy law will handle the new challenges that the energy sector faces as it contemplates reduction of carbon dioxide emissions required under the Kyoto Protocol, or the improved application of the environmental impact assessment to energy sector projects, as is required by national environmental impact assessment (EIA) laws or the 1998 Århus Convention on Public Access to Information, Participation in Decision-making and Access to Environmental Justice. Because practically every nation has favoured systems that supply energy exclusively through economic sector preferences, energy law today only superficially addresses how energy suppliers could better take economic, social or ecological responsibility for the adverse effects of their processes and services. In most places, since the utility services that supply energy are a near monopoly, those societies that decide to require energy suppliers to consider social or environmental issues have chosen to establish regulatory systems to ensure that the pricing of energy is balanced between (a) generating fees sufficient to pay for the investment in building and operating the energy systems, (b) providing a “reasonable” profit to the governmental, parastatial, or private enterprises that build and operate the energy systems, and (c) ensuring that the public can afford to pay the fees and showing that the fees appear fair to the users.
