Energy efficiency and the energy charter treaty

Environmental and Planning Law Journal

Volumn 14, Issue 5, 1997, Pages 327-340

  Bradbrook, Adrian J ^a  

^a UNIVERSITY OF ADELAIDE   (Australia)

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EID: 33745018130     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (122)

1. On this subject, see A J Bradbrook, "Energy Use and Atmospheric Protection(1996) 3 Australasian J Natural Resources L & Policy 25.
2. For a general discussion of the problem of acid rain, see C C Park, Acid Rain: Rhetoric and Reality (Methuen, London, 1987).
3. H Dowlatabadi and W Harrington, "Policies for the Mitigation of Acid Rain: A Critique of Evaluation Techniques" (1989) 17 Energy Policy 116.
4. D P Adams and W P Page, Acid Deposition. Environmental. Economic and Policy Issues (Plenum Press, New York, 1985).
5. US Congress, Office of Technology, Acid Rain and Transported Air Pollutants: Implicationsfor Public Policy (1984).
6. UK House of Commons, 4th Report of the Environment: Acid Rain (1984); UNECE, Air Pollution Studies, Nos 1-6 (1984-89). For a discussion of the legal problems associated with acid rain, see eg J L Regens and R W Rycroft, "Options for Financing Acid Rain Controls" (1986) 26 Natural Resources J 519.
7. A Brunee, Acid Rain and Ozone Layer Depletion (1988), p 225ff.
8. Energy is responsible for approximately 57 per cent of all global warming emissions, although the exact figure may vary from country to country depending on its energy mix. See, eg, Green Paper on Sustainable Energy Policy for Australia (AGPS, Canberra, 1996), p 20.
9. R J Fowler, "International Policy Responses to the Greenhouse Effect and their Implications for Energy Policy in Australia, " in D J Swaine (ed), Greenhouse and Energy (1990), p 462. For a discussion of the legal aspects of this issue, see R R Churchill and D A Freestone, International Law and Global Climate Change: international Legal Issues and Implications (Graham & Trotman, London, 1991).
10. C D Stone, "Beyond Rio: 'Insuring' Against Global Warming" (1992) 86 American J Int L 445.
11. D Bodansky, "Managing Cljmate Change" (1992) 3 Yearbook of International Environmental Law 60.
12. A Kiss and D Shelton, International Environmental Law (1994 Supplement), p 128ff.
13. S Geiser, "The 1992 Earth Summit: A Harbinger of the Urgent Need for the Clinton/Gore Administration to Act on Electric Energy Policy" (1994) 17 Suffolk Transnational L Rev 408.
14. (1992) 31 ILM 849. See D Bodansky, "Managing Climate Change" (1992) 3 Yearbook of International Environmental Law 60.
15. A Kiss and D Shelton, International Environmental Law (1994 Supplement), p 128ff.
16. S Geiser, "The 1992 Earth Summit: A Harbinger of the Urgent Need for the Clinton/Gore Administration to Act on Electric Energy Policy" (1994) 17 Suffolk Transnational L Rev 408.
17. 12 ILM 1319 (1973) (in force 2 October 1983). Note that this convention was amended by the Protocol Relating to the Convention for the Prevention of Pollution from Ships (MARPOL), 17 ILM 546 (1978) before coming into force. See G Peet, "The MARPOL Convention: Implementation and Effectiveness" (1992) 7 Int J Estuarine and Coastal Law 277.
18. (1979) 18 ILM 1442.
19. 1994 Protocol on Further Reduction of Sulphur Emissions (Oslo) (1994) 33 ILM 1540.
20. See 1957 Statute of the International Atomic Energy Agency: 8 UST 1092; TIAS 3873.
21. Convention on Nuclear Safety (1994) 33 ILM 1518.
22. Convention on Early Notification of a Nuclear Accident (1986) 25 ILM 1370.
23. Convention on Assistance in the Case of a Nuclear Accident or a Radiological Emergency (1986) 25 ILM 1377. International law relating to nuclear energy is discussed in B Kunth, "International Aspects of Nuclear Installations Licensing" (1987) 5 JENRL 202.
24. A E Boyle, "Nuclear Energy and International Law: An Environmental Perspective" [1989] British Yearbook of International Law 257.
25. P Bimie and A Boyle, International Law and the Environment (1992), Ch 9.
26. P Cameron et al (eds), Nuclear Energy Law After Chernobyl (1988).
27. P Sands, Chernobyl: Law and Communication (1988).
28. L A Malone, "The Chernobyl Accident: A Case Study in International Law Regulating State Responsibility for Transnational Nuclear Pollution" (1987) 12 Columbia J Environmental Law 203.
29. J Barron, "After Chernobyl: Liability for Nuclear Accidents Under International Law" (1987) 25 Columbia J Transnational Law 647.
30. Note that the Framework Convention on Climate Change indirectly supports the promotion of energy efficiency. Article 4.1(c) imposes a duty on all contracting parties to promote and co-operate in the development, application and diffusion, including transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases not controlled by the Montreal Protocol in all the relevant sectors, including the energy. sector. "
31. World Commission on Environment and Development, Our Common Future (Oxford University Press, Melbourne, 1990), pp 213 and 240.
32. On the importance of national energy security, particularly for developed countries, see eg R Belgrave, C K Ebinger and H Okino (eds), Energy Security to 2000 (1987).
33. G C Georgiou, "US Energy Security and Policy Options for the 1990s" (1993) 21 Energy Policy 831
34. CLOrman, "The National Energy Strategy-An Illusive Quest for Energy Security" (1992) 13 Energy L J 251.
35. For a discussion of associated legal issues, see A J Bradbrook, "Regulating for Fuel Efficiency in the Road Transport Sector" (1994) 1 Australasian J Natural Resources Law and Policy 1.
36. National Research Council, Automotive Fuel Economy: How Far Should We Go? (National Academy Press, Washington, DC, 1992).
37. Office of Technology Assessment, Improving Automobile Fuel Economy: New Standards, New Approaches (US Government Printing Office, Report OTA-E-504, 1991).
38. J M DeCicco, Savings from CAFE: Projections of the Future Oil Savingsfrom Light Vehicle Fuel Economy Standards (American Council for an Energy Efficient Economy, Washington, DC, 1992).
39. R W Crandall and J D Graham, "The Effect of Fuel Economy Standards on Automobile Safety" (1989) 32 J Law and Economics 97.
40. For a general discussion of the potential role of the law in this area, see A J Bradbrook, Energy Conservation Legislation for Building Design and Construction (Canadian Institute of Resources Law, Calgary, 1992).
41. G P Thompson, Building to Save Energy: Legal and Regulatory Approaches (Ballinger Publishing Co, Cambridge, Mass, 1980).
42. C Flavin, Energy and Architecture: The Solar and Conservation Potential (Worldwatch Paper 40, 1980).
43. Cogeneration may be described as the simultaneous production of electrical or mechanical energy and thermal energy. It is sometimes referred to as "combined heat and power" or "total energy plant. " For a discussion of cogeneration technology, see California Energy Commission, Cogeneration Handbook, Report P500-82-054 (1982).
44. F B Cross, "Cogeneration: Its Potential and Incentives for Development" (1979) 3 Harvard Environmental L Rev 236.
45. D A Siler, "Cogeneration and Small Power Production, " in L E Buck and L M Goodwin (eds), Alternative Energy-The Federal Role (McGraw-Hill, New York, 1981), Ch 7.
46. For a discussion of the legal issues associated with the application of cogeneration, see A J Bradbrook, "Legal Aspects of Promoting Energy Cogeneration" (1989) 6 EPLJ 332.
47. F B Cross, "Cogeneration: Its Potential and Incentives for Development" (1979) 3 Harvard Environmental L Rev 236.
48. C A Wooster, "Cogeneration: Revival Through Legislation?" (1983) 87 Dickinson L Rev 705.
49. S A Martin, "Problems with PURPA: The Need for State Legislation to Encourage Cogeneration and Small Power Production" (1983) 11 Boston College Environmental Affairs L Rev 149.
50. See A J Bradbrook, "Energy Conservation for Industry" (1992) 10 JENRL 145.
51. For legal regulation in this area, see A J Bradbrook, "The Development of Energy Efficiency Laws for Domestic Appliances" (1990) 12 Adel L Rev 306.
52. W H Lawrence and J H Minan, "The Use and Implementation of Solar Energy Equipment Standards" (1982) 3 Solar Law Reporter 781.
53. W F Fox, Federal Regulation of Energy (Shepard's Inc, Colorado Springs, 1983).
54. California Energy Commission, California's Appliance Efficiency Standards: An Historical Review, Analysis and Recommendations (Report P400-83-020, 1983).
55. "Demand-side management" involves the adoption of policies by power companies designed to control the demand by consumers for electricity rather than simply respond to increasing demand by commissioning new power plant to increase the supply. See, eg, Edison Electric Institute, Demand Side Management (3 vols) (1984).
56. Energy, Mines and Resources, Canada, Demand Side Management in Canada (1988).
57. State Electricity Commission of Victoria, Demand Management Development, Final Report (1990).
58. S Nadel, DSM Programs in an Era of Tight Budgets: Maximising Long-Term Energy Savings While Minimising Utility Costs (1995).
59. "Least-cost planning" has as its objective the goal of providing consumers with all the energy services they require at the least possible cost. See R W Sant, D W Bakke and R F Naill, Creating Abundance (1984), p 22ff.
60. "Integrated resource planning" involves the treatment of energy efficiency and utilities' load management programs as resources, and the consideration by energy planners and forecasters of a variety of resource-selection criteria, together with the environmental costs of energy production. See E Hirst, C Goldman and M E Hopkins, "Integrated Resource Planning for Electric and Gas Utilities, " in E Vine and D Crawley (eds), State of the Art of Energy Efficiency: Future Directions (1991), p 7.
61. The World Sustainable Energy Coalition is a nongovernmental organisation based in Zurich, Switzerland. It is affiliated with another Swiss-based non-governmental organisation, Cercle Mondiale du Consensus (CMDC).
62. The Global Energy Charter was developed at the Clean Energy Conference, held in Geneva, Switzerland, in October 1991. The Charter is discussed in A J Bradbrook, "The International Legal Development of Energy Conservation and Renewable Energy Technologies" (1992) 9 EPLJ 31.
63. (1995) 34 ILM 360.
64. (1995)34 ILM 446.
65. For a discussion of the international negotiations preceding the Treaty, see J Doré, "Negotiating the Energy Charter Treaty, " in T Wälde (ed). The Energy Charter Treaty (Kluwer Law International, London, 1996), Ch 5.
66. For the background to the Charter, see T Wālde, "Introductory Note-European Energy Charter Conference" (1995) 34 ILM 360 at 361-362. The inspiration for the Charter was the Dutch Prime Minister, Ruud Lubbers.
67. A Dale and M Lane "Strategic Perspectives Analysis: A Procedure for Participatory and Political SIA" (1994) 7 Society and Natural Resources 253-268.
68. The original rationale was that intensified trade relations and co-operation in the energy sector could enhance the move towards democracy in the former Eastern bloc countries and act as a catalyst for economic revival.
69. For a discussion of the Treaty, see C Jones, "The European Energy Charter Initiative" (1994) 49 Petroleum Review 35.
70. R Axelrod, "The European Energy Charter Treaty: Reality or Illusion?" (1996) 24 Energy Policy 497.
71. L Brazell, "Draft Energy Charter Treaty: Trade, Competition, Investment and Environment" (1994) 12 J Energy and Natural Resources Law 299.
72. T Wälde and K Christie, Energy Charter Treaty: Selected Topics (1995).
73. C Shine, "Environmental Protection Under the Energy Charter Treaty, " in T Walde and K Christie, Energy Charter Treaty: Selected Topics (1995), p 539.
74. "Environmental Impact" is defined very broadly in Art I9(3)(b) as meaning "any effect caused by a given activity on the environment, including human health and safety, flora, soil, air, water, climate, landscape and historical monuments or other physical structures or the interactions among these factors; it also includes effects on cultural heritage or socioeconomic conditions resulting from alterations to those factors. "
75. For a discussion of the costing of energy externalities and the politics associated with their inclusion in energy costing.
76. Pace University Center for Environmental Legal Studies, Environmental Costs of Electricity (Oceana Publications Inc, New York, 1990).
77. On this subject, see A J Bradbrook, "Energy Law: A Neglected Aspect of Environmental Law" (1993) 19 MULR at 1-2.
78. "Cost-Effective" means "to achieve a defined objective at the lowest cost or to achieve the greatest benefit at a given cost": Art 19(3)(d).
79. A Dale and M Lane "Strategic Perspectives Analysis: A Procedure for Participatory and Political SIA" (1994) 7 Society and Natural Resources 253-268.
80. See A B Lovins, Soft Energy Paths (Penguin Books, London, 1977).
81. See also A B Lovins, "Negawatts: Twelve Transitions, Eight Improvements and One Distraction" (1996) 24 Energy Policy 331.
82. On this point, see A J Bradbrook, "Energy Law as an Academic Discipline" (1996) 14 JENRL 190.
83. "Energy Cycle" and "Cost-Effectiveness" are defined in Art 2 of the Protocol in identical form as in Art 19(3) of the Treaty: see nn 29 and 32, above and accompanying text.
84. "Improving Energy Efficiency" is defined in Art 2(6) in identical form as in Art 19(3)(c) of the Treaty.
85. "Improving Energy Efficiency" is defined in Art 2(6) in identical form as in Art 19(3)(c) of the Treaty.
86. (1987) 26 ILM 1541. The terms of the Protocol were amended in 1990 by the London adjustments (1991) 30 ILM 537) and in 1992 by the Copenhagen adjustments (1993) 32 ILM 874). The Montreal Protocol was negotiated as an adjunct to the United Nations Convention for the Protection of the Ozone Layer (1987) 26 ILM 1516). This was merely a framework convention. This area of international law is discussed in T C Faries, "Clearing the Air: An Examination of International Law on the Protection of the Ozone Layer" (1990) 28 Alberta L Rev 818.
87. P Bimie and A Boyle, International Law and the Environment (1992), pp 404-411.
88. A Enders and A Porges, "Successful Conventions and Conventional Success: Saving the Ozone Layer, " in K Anderson and R Blackhurse (eds), The Greening of World Trade Issues (1992), p 131.
89. D Ogden, "The Montreal Protocol: Confronting the Threat to the Earth's Ozone Layer" (1988) 63 Washington L Rev 997.
90. D Doolittle, "Understanding Ozone Depletion: The Meandering Road to the Montreal Protocol and Beyond" (1989) 16 Ecology L Q 408.
91. (1992)31 ILM 849.
92. Australia has advanced the argument in the Conferences the Parties of the Framework Convention on Climate Change that it is a fossil-fuel dependent economy, and as such should be entitled to special consideration in the current negotiations for a Protocol on the reduction of atmospheric carbon emissions.
93. "Improving Energy Efficiency" is defined in Art 2(6) in identical form as in Art 19(3)(c) of the Treaty.
94. See N A Robinson (ed), Agenda 21: Earth's Action Plan (Oceana Press, 1993).
95. See N A Robinson (ed), Agenda 21: Earth's Action Plan (Oceana Press, 1993).
96. See N A Robinson (ed), Agenda 21: Earth's Action Plan (Oceana Press, 1993).
97. On this subject, see C M Chinkin, "The Challenge of Soft Law: Development and Change in International Law" (1989)
98. Int & Comp LQ 850.
99. P Dupuy, "Soft Law and the International Law of the Environment" (1991) 12 Michigan J Int L 215.
100. A Dale and M Lane "Strategic Perspectives Analysis: A Procedure for Participatory and Political SIA" (1994) 7 Society and Natural Resources 253-268.
101. 49 CFR Ch V, Pts 531-537. See now Title V of the Motor Vehicle Information and Cost Savings Act. For a discussion of the CAFE system, see National Research Council, Automotive Fuel Economy: How Far Should We Go? (National Academy Press, Washington, DC, 1992).
102. J M DeCicco, Savingsfrom CAFE: Projections of the Future Oil Savings from Light Vehicle Fuel Economy Standards (American Council for an Energy Efficient Economy, Washington, DC, 1992).
103. Office of Technology Assessment, Improving Automobile Fuel Economy: New Standards, New Approaches (US Government Printing Office, Report OTA-E-504, 1991).
104. Charles River Associates, Inc, Policy Alternatives for Reducing Petroleum Use and Greenhouse Gas Emissions (Final Report, 1991).
105. Article 6 reads: "(1) Contracting Parties shall encourage the implementation of new approaches and methods for financing energy efficiency and energy-related environmental protection investments, such as joint venture arrangements between energy users and external investors. (2) Contracting Parties shall endeavour to take advantage of and promote access to private capital markets and existing international financing institutions in order to facilitate investments in Improving Energy Efficiency and in environmental protection relating to energy efficiency. (3) Contracting Parties may, subject to the provisions of the Energy Charter Treaty and to their other international legal obligations, provide fiscal or financial incentives to energy users in order to facilitate market penetration of energy efficiency technologies, products and services. They shall strive to do so in a manner that both ensures transparency and minimizes the distortion of international markets. "
106. See and compare Arts 4, 8 and 11 of the Framework Convention. For a discussion of one of the financing options, joint implementation, see T Jackson, "Joint Implementation and Cost Effectiveness under the Framework Convention on Climate Change" (1995) 23 Energy Policy 117.
107. F Yamin, The Climate Change Convention and Joint Implementation: Legal, Institutional and Procedural Issues (FIELD, 1993).
108. P Ghosh, M Mittal et al, Joint Implementation of Abatement Commitments under the Framework Convention on Climate Change: Perspectives of Developing Countries (T ata Energy Research Institute, New Delhi, 1994).
109. P Ghosh, M Mittal et al, Joint Implementation of Abatement Commitments under the Framework Convention on Climate Change: Perspectives of Developing Countries (T ata Energy Research Institute, New Delhi, 1994).
110. Article 34(3)(1). By Art 10 of the Protocol, the Energy Charter Conference also exercises similar powers in respect of the Protocol. Note, however, that decisions made by the Conference under the Protocol can only be made by those contracting parties to the Treaty who are also contracting parties to the Protocol: Protocol. Art 10(1).
111. UN Convention on the Law of the Sea (Montego Bay), (1982)21 ILM 1261.
112. Note that Art 19(1)(c) of the Energy Charter Treaty requires contracting parties, inter alia, to develop and use renewable energy sources.
113. A Dale and M Lane "Strategic Perspectives Analysis: A Procedure for Participatory and Political SIA" (1994) 7 Society and Natural Resources 253-268.
114. For a discussion of the impact of NAFTA on energy trade, see, eg, O Saunders, "GATT, NAFTA and North American Energy Trade: A Canadian Perspective" (1994) 12 JENRL 4.
115. E Smith and D Cluchey, "GATT, NAFTA and the Trade in Energy: A US Perspective" (1994) 12 JENRL 27.
116. D MacDougall, "Trade in Energy and Natural Resources: The Role of GATT and Developing Countries" (1994) 12 JENRL 95.
117. C Redgwell, "Energy, Environment and Trade in the European Community" (1994) 12 JENRL 128.
118. I McConnell, "NAFTA: Trading Natural Resource Goods and Protecting the Environment" (1994)12 JENRL 151.
119. A Lucas, "Natural Resource Trade Under NAFTA: The Interface with International Environmental Treaties" (1994)
120. JENRL 175.
121. General Agreement on Tariffs and Trade, TIAS No 1700
122. UNTS 194.