Abstract
Energy law is basically aimed at making energy accessible at a reasonable cost, while environmental law in energy matters focuses on avoiding pollution when producing, making accessible and/or consuming energy. Perceived in this way, they constitute found paradigms, in permanent friction. Given that the human being cannot live or develop without using energy, it is that in this chapter, the authors seek to investigate aspects of encounter between both paradigms for a more adequate relationship between them, considering them with their sights set on the goal of sustainable development. In the first term, the authors will consider central aspects of the vision of energy law and then attend to the vision of environmental law in energy matters.
TopIntroduction
Energy Law
From the point of view of Energy Law, energy is the engine of the production of goods and services in all economic sectors and the center of social development, so regulation focuses on these aspects, generally linked to costs, accessibility, technology . From the social and economic point of view, energy is considered a primary or derived natural resource.
Although we will consider different energy sources, any form of energy, once converted, is equivalent to any other, since it can be measured in identical units.
As the supply of energy requires multiple processes (production, conversion, transformation, distribution), public and private entities usually enter into competition in order to control energy sources, to influence the preferences of users, to access resources (material, financial, human and others).
The value of energy lies in its ability to heat, light and make things move. Energy has been considered to be the vector of human evolution and development. Each country uses various energy sources to different degrees and in combinations that often reflect its endowment of natural resources. The combination of extraction and conversion technologies and processes by which energy services (electricity, heat) are provided to end users is known as the energy system, and the individual formula as the energy mix. The depletion of finite energy resources (coal, crude oil, natural gas, uranium) creates the need to invest in alternative sources or import, the latter is a real drain on developing countries, in addition to being a network of supply vulnerable to changes beyond the control of national planners. It is well known that an energy crisis necessarily entails a socio-economic crisis(Arney, 2010).
Developing nations are increasingly concerned with the issue of “security” of energy supply. Energy must be priced appropriately to cover the total cost of supply, although access to it should not be limited based solely on economic considerations. It is necessary to adjust prices based on “ad hoc” models so that all consumers can take advantage of the benefits of energy. This is not only necessary to determine the prices to be paid by the different social classes but also by the different commercial sectors, since energy prices directly influence the competitiveness of goods and services both locally and internationally.
Key Terms in this Chapter
Precautionary Principle: One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration formulated the precautionary principle: To protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of complete scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle may play a role in any debate over the need for environmental regulation.
Prevention: The concept of prevention can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, licensing or authorization that set out the conditions for operation and the consequences for violation of the conditions, as well as the adoption of strategies and policies. Emission limits and other product or process standards, the use of best available techniques, and similar techniques can all be seen as applications of the concept of prevention.
Public Participation and Transparency: identified as necessary conditions for “accountable governments,... industrial concerns,” and organizations generally, public participation and transparency are presented by UNEP as requiring “effective protection of the human right to hold and express opinions and to seek, receive and impart ideas,... a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality,” and “effective judicial and administrative proceedings.” These principles are present in environmental impact assessment, laws requiring publication and access to relevant environmental data, and administrative procedures.
Polluter Pays Principle: The polluter pays principle stands for the idea that “the environmental costs of economic activities, including the cost of preventing potential harm, should be internalized rather than imposed upon society at large.” All issues related to responsibility for environmental remediation costs and compliance with pollution control regulations involve this principle.
Transboundary Responsibility: Defined in the international law context as an obligation to protect one’s environment and prevent damage to neighboring environments, UNEP considers transboundary responsibility at the international level as a potential limitation on the sovereign state’s rights. Laws that limit externalities imposed upon human health and the environment may be assessed against this principle.
Equity: Defined by UNEP to include intergenerational equity - “the right of future generations to enjoy a fair level of the common patrimony” - and intragenerational equity - “the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s natural resources” - environmental equity considers the present generation under an obligation to account for long-term impacts of activities and to act to sustain the global environment and resource base for future generations. Pollution control and resource management laws may be assessed against this principle.