ALBERT

Description: This article examines and analyses the environmental civil public interest litigation system in the protection of climate change in China through two cases, the All-China Environment Protection Federation v Zhenhua Co, Ltd for air pollution and Friends of Nature v State Grid Gansu Electric Power Corporation for full-purchase of all on-grid power produced by renewable energy.

Description: This article will focus on price review clauses in Asian LNG markets from the point of view of price review arbitration and the jurisdiction of the tribunal. The basic conclusion reach is that there is no simple answer but that various considerations speak in favour of establishing the jurisdiction of arbitral tribunals in respect of gas prices. The background to the article is a number of gas price arbitrations that have been initiated in Asian markets and the assumption that these early cases will be followed by many more. One of the questions raised in this context is jurisdiction of the tribunal.

Description: In 2017, the Energy Charter Treaty (ECT) began a modernization process aimed at updating, clarifying, and modernizing a number of provisions of the Treaty. Considering the scope of application of the Treaty—cooperation in energy trade, transit, and investment—there is hardly any doubt that the modernization kicked off in 2017 offers a springboard for constructive reform and a unique opportunity to bring the Treaty closer in line with the objectives of the Paris Agreement. Although none of the items selected by the Energy Charter Conference and open for discussion and reform mention climate change or clean energy, a careful analysis of the relevant practice in both treaty drafting and adjudication can provide valuable insights as to how to steer the discussions on some of the existing items in a climate-friendly direction. The purpose of this article is to rely on this relevant practice to explore promising avenues to ‘retool’ the Treaty for climate change mitigation, in other words, to imagine a Treaty that would better reflect climate change concerns and clean energy transition goals.

Description: 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.

Description: Morphological analysis (MA) is a reliable technique for identifying research opportunities in policy analysis. This article presents a MA of the energy policy analysis literature of over four decades of research to enable structured understanding of the field. A three-stage research method has been adopted to identify and review journal articles and research publications. The MA affirms that energy policy analysis research literature points to energy–economy–sustainability–policy interactions. These interactions are studied from the issues and concerns perspective. The MA framework (MAF) representation of energy policy issues and concerns comprises 4 dimensions, 11 sub-dimensions and 50 variants. This MAF representation of the energy policy analysis literature can be useful for researchers to systematically study the domain and identify significant research opportunities, emerging themes and priorities in energy policy analysis research. The article also suggests immediate and promising research opportunities in the domain using the MAF. MA is also a reliable method for researchers who study other public policy domains.

Description: Chinese foreign energy investments are facing increasing opposition based on concerns that they are made with an ulterior strategic motive. Some states have been seeking to block the access of Chinese companies to their market and, for existing investments, to international arbitration, by portraying them as instruments of the government. It is important for China’s participation in the international economic system that its energy companies are not automatically excluded because of suspicion of China’s motives, but are subject to a nuanced assessment in which national and international economic law has a role to play. To distinguish strategic from commercial projects, this article analyses the Chinese regulation of outbound energy investments based on international principles of economic governance. The objective is to identify channels of political interference with investment decisions, by focusing on regulatory approval, state guidance and corporate governance.

Description: Renewable energy sources increasingly seek to compete in electricity markets outside of traditional support schemes. In this context, market values and the cannibalization risks of wind and solar photovoltaic (PV) take on crucial roles for investment decisions and potential investors. Most existing studies analyse the market value of renewables at different penetration levels, looking at the extent to which PV panels and wind turbines cannibalize their own market revenues. This article explores how other market and policy drivers affect wind and PV value factors and capture prices in real-world settings over the next three decades. To this end, we model and analyse a number of scenarios with altered natural gas, coal and carbon prices as well as varied availabilities of wind and PV in Europe. We find that higher natural gas and carbon prices result in lower wind and PV value factors and vice versa, while the influence of coal prices is rather limited. Our results show substantial merit order effects on absolute wind and PV capture prices, following varied availabilities yet no significant cross-cannibalization between the two technologies.

Description: Germany streamlined its nuclear phase-out policy following the Fukushima Daishi nuclear accident, planning to decommission all of its nuclear capacity by 2022. As a member of the EU, although Germany is entitled to determine its own energy mix pursuant to Article 194(2) of the TFEU, this policy may conflict with other EU legislation and jurisprudence relevant to the EU energy sector. In particular, in this paper, we argue that the German nuclear phase-out may be contrary to the European Atomic Energy Community Treaty and the primary and secondary EU legislation regarding security of energy supply. We explore how Germany’s commitments under this legislation act as a limitation to its national energy policy autonomy and might entail the unlawfulness of the German nuclear phase-out strategy.

Description: This article examines the requirements of resilience and reliability for gas to power systems planning in an era of decarbonization. It recongizes that energy transitions and decarbonization portend an increasing competition between various traditional and emerging net-zero, carbon neutral and low-carbon energy sources and technologies. Likewise, energy policy development has traditionally focused on the dimensions of affordability, sustainability, cost-efficiency through viable markets and security of supply. Recent disruptive events that may or may not be attributable to climate change have tested the resiliency of energy networks. Thus, energy policy and planning now require a more comprehensive outlook that includes the dimension of resilience. Also, there is the need to prevent or effectively manage the aftermath of disruptive events, rather than a piecemeal focus on hardening infrastructure against one or more issues such as cyber-security and functionality of energy networks in adverse conditions. This article discusses resilience and reliability as key dimensions of US energy policy from a public choice law and economics purview. It builds on the premise that politicians, administrative agencies and other stakeholders in the energy sector can be irrational and therefore unable to identify and implement the policy package that is in the public interest if not properly guided. It considers the role of investments in resilience and systems planning. It also underscores the need for developing a more efficient framework that would enable relevant stakeholders to avoid the risk of opportunity cost neglect, informational gaps and fragmented institutional coordination that could escalate the social, health, safety and economic impacts of future disruptive events such as the February 2021 winter storm Uri that tested the resilience of energy supply infrastructure in the US.

Description: The last five years have seen Bangladesh making good progress in adding various energy mixes to its supply of energy for domestic consumption. The GDP of the country grew at 8 per cent in the year before the pandemic. This was possible due to certain policy-level decisions by the government to increase the production of energy, implementing short-term projects for electricity generation and the flexibility of the industrial sector. The country now has a plan to increase its energy security and lower its reliability on imported energy. The purpose of this article is to discuss and analyse the various policies and the challenges that the government faces in order to ensure the country’s energy security.

Description: Non-governmental organizations (NGOs) have been at the forefront of securing environmental justice for the people of Nigeria’s Niger Delta suffering the effects of pollution arising from petroleum exploitation. Standing constraints have, however, limited NGOs’ abilities to access the courts to prevent or remedy pollution. This article analyses the recent decision of Nigeria’s Supreme Court in Center for Oil Pollution Watch v Nigerian National Petroleum Corporation (NNPC). It finds that environmental NGOs, previously unable to institute action under existing public interest litigation procedures, can now institute action in their own rights to prevent or remedy environmental pollution in Nigeria.

Description: Considering the fact that its existence is abundant while maintaining the ability to generate freshwater while burning, methane hydrates have been classified as sources of sustainable energy. China currently maintains an international role in developing technology meant to explore offshore methane hydrates buried under the mud of the seabed, their primary laboratory being the South China Sea. However, such a process does not come without its hazards and fatal consequences, ranging from the destruction of the flora and fauna, the general environment, and—the greatest hazard of all—the cost of human life. The United Nations Convention on the Law of the Sea (hereinafter ‘UNCLOS’), being an important international legal regime and instrument, has assigned damage control during the exploration of methane hydrates, as being the responsibilities and liability of individual sovereign states and corporations. China adopted the Deep Seabed Mining Law (hereinafter the DSM Law) on 26 February 2016, which came into force on the 1 of May 2016; a regulation providing the legal framework also for the Chinese government’s role in methane hydrate exploratory activities. This article examines the role of the DSM Law and its provisions, as well as several international documents intended to prevent transboundary environmental harm from arising, as a result of offshore methane hydrate extraction. Despite the obvious risk of harm to the environment, the DSM Law has made great strides in regulating exploratory activities so as to meet the criteria of the UNCLOS. However, this article argues that neither the UNCLOS nor the DSM Law are adequately prepared to address transboundary harm triggered by the exploitation of offshore methane hydrates. In particular, the technology of such extraction is still at an experimental stage, and potential risks remain uncertain—and even untraceable—for cross-jurisdictional claims. The article intends to seek available legal instruments or models, to overhaul the incapacity within the current governing framework, and offers suggestions supporting national and international legislative efforts towards protecting the environment during methane hydrate extraction.

Description: Upon the election of Andres Manuel Lopez Obrador (AMLO) on 1 July 2018, the vitality of Mexico’s recent Energy Reform came under fire from investors, policy makers and industry professionals. This paper evaluates the risks posed to investors in cross-border pipeline projects as a result of this regime shift. Risk is evaluated by the present factors that affect investment conditions as well as projections into the future state of the Mexican Energy Reform. An evaluation of the current Mexican natural gas policy and Mexico’s natural gas relationship with the United States demonstrate a high demand for cheap natural gas flowing across the U.S.-Mexico border. While factors such as social insecurity, theft, environmental concerns, and political volatility slowed the development of several cross-border pipeline projects, the presence of newly minted projects on the horizon are a sign that the expansion of Mexico’s pipeline infrastructure is likely to endure.

Description: Nearing its 60th anniversary of foundation, the once unchallenged Organisation of Petroleum Exporting Countries (OPEC) faces a modern diminution of influence. This slipping grip of near-hegemonic control exerted over the petroleum industry, is partly reflective of the rising influence of unconventional energy sources, the rising popularity for alternative and renewable energy sources and a downstream consequence of its own exertion of power. With rising international demand for renewables as a means to provide global energy security, the role of the state remains paramount in meeting energy demands. The international framework falls short of enabling a framework that brings renewable energy past its domestic dependency and into an internationally traded commodity. Following the 1973 embargo against the USA, OPEC inadvertently spurred on the need for a diversified market of energy production to ensure global energy security free from the whims of oligarchic groups. The subsequent investment into alternative energy, including the rising technological advancements made in areas such as horizontal and seismic imaging technology (or, ‘fracking’), has led to the diversification of energy production sources and lessened reliance on external importers by the American energy consumption powerhouse. The lessening reliance on OPEC has had a consequential impact on the unofficial head of the organization, Saudi Arabia. From the proposed initial public offering of Saudi Aramco to Vision 2030, all signs point to looming economic troubles for the petroleum dependant state without adequate, and effective, diversification.

Description: Prior to entering into any joint venture agreement (JVA), dealmakers should be aware of the options available to resolve future investment disagreements. There are three broad capital investment structures commonly found in joint ventures: (i) standard passmark rules; (ii) non-consent/opt-out; and (iii) sole risk. Within each category, deal practitioners have numerous options to tailor capital investment structures. As much as possible, deal practitioners should contemplate the most likely areas of disagreement, and then tailor the capital investment structures appropriately to ensure that the joint ventures (JV) can manage capital investment decisions in an efficient, value-preserving way. While it is impossible to establish a formula to determine which specific contractual structures will best accommodate future capital investments in a given JV, companies should weigh various factors to inform their position. We reviewed 40 JVAs to understand various capital investment mechanics and how they differ based on the nature of the venture and owner context. Our research found an extremely diverse array of creative structural work-arounds to address different owner appetites to make future capital investments. The purpose of this article is to describe, illustrate and provide benchmarks on different mechanics and contractual terms found in joint venture agreements, and to offer guidance as to which future capital investment mechanics should be included in venture agreements.

Description: China has the third largest fleet of nuclear power plants in the world, totalling more than 45 GWe at the end of 2019. With the current high rate of growth, its capacity will soon overtake that of France. The country’s nuclear power industry has suffered no serious accidents to date. Nevertheless, the poor safety record of some other heavy industries in China, combined with the rapid growth of civil nuclear power capacity, has raised concerns over the industry’s ability to prevent a serious accident. The organization, development and governance of China’s nuclear power industry reflects the high strategic importance that the government has placed on the industry over several decades. At the same time, it has taken steps to address domestic and international concerns over its ability to effectively govern nuclear safety and security. The country has become party to most major treaties and conventions relating to nuclear matters and has frequent interaction with the International Atomic Energy Agency. Despite many significant steps taken by the government, a number of questions remain concerning: the capacity and independence of the National Nuclear Safety Administration; the relatively incoherent nature of the body of laws, regulations and rules that govern nuclear safety and security; the absence of a clear legal basis for managing civil nuclear liability, especially in the context of an accident with transboundary consequences; and the quality of public participation, especially in the case of planned nuclear power plants.

Description: The article analyses the European Union (EU) legal approaches that govern security of electricity supply. This legal analysis demonstrates how EU law allocates power and responsibility between the State and the markets in the electricity sector to ensure the uninterrupted availability of affordable electricity. The article argues that the allocation of roles and responsibilities has been similarly structured in respect of different timescales of security of supply in the Clean Energy for All Europeans package. This legal structure relies heavily on the invisible hand of the market, in which context the role of the State is limited to providing a fallback in the event that the market is unable to achieve the objective of security of electricity supply.

Description: Global regulations involving clean energy technologies have evolved in recent decades. Such evolution came as a result of technological disparities between the North and the South. Such regulatory changes came because of the failure of developed nations to assist developing countries in obtaining said technologies. Since the beginning, international climate change law has attempted to alleviate the discrepancies in technology transfer regulations so as to introduce some form of unity, especially through various legislations, such as a global regulatory framework. In response, this article seeks to answer the following question: did international climate change law provide the necessary regulations to ensure technological accessibility to developing nations? This article will examine the accessibility of clean energy technology in relation to international climate law, especially highlighting the phases characterized by either technological protection or international collaboration. These changes reflect a continuous cycle where both circumstances and events affect international climate change law and the relations with technology state of affairs.

Description: States have sovereign rights that allow them to construct nuclear power plants. Moreover, engaging with nuclear power generation makes possible the achievement of the Sustainable Development Goals (2016–30) in combatting climate change, paramount to the Paris Agreement’s initiatives. In the same vein, however, constructing and operating power plants pose strict dangers to both general safety of the public and to national security. Thus, plant operations should strictly abide by the International Atomic Energy Agency (IAEA) standards and international law. As a result, it is important to consider the potential transboundary impacts of nuclear power plants and to conduct an appropriate transboundary environmental impact assessment (EIA). The article examines the construction of the Ostrovets Nuclear Power Plant by Belarus, close to the border of the Republic of Lithuania. The question in focus, however, is as follows: what international procedure can be used to coordinate issues of potentially negative transboundary impacts? Lithuania, in order to avoid the operation of the nuclear power plant, thus sought peaceful settlement of the dispute making use of the dispute resolution mechanisms based on international environmental agreements. The authors of this study show that the treaty bodies, established on the basis of international environmental agreements, provide important assistance in this matter in coordination with the IAEA. The use of these quasi-judicial means of resolving interstate disputes proves effective in pursuing a compromise between economic development and environmental protection. In the absence of such mechanisms at a universal level, one should consider utilizing such mechanisms in other regions of the world.

Description: South Korea has one of the world’s more established nuclear power industries with its first commercial reactors being commissioned in 1978. The growth of nuclear power capacity had relied on sustained government support and close coordination with key state-owned enterprises. The tight relationship between politicians, government and companies has resulted in what is colloquially known as the ‘nuclear mafia’. One year after the Fukushima Daiichi nuclear accident in Japan, Korea’s nuclear industry suffered its own crises in 2012. The first was a station blackout at the Kori 1 reactor, the country’s oldest, which was not reported for over a month. The second set of revelations concerned systematic malfeasance along the nuclear supply chain involving the falsification of reports of safety tests on nuclear parts and equipment. Revisions to the Nuclear Safety Act gave greater powers to the newly created Nuclear Safety and Security Commission and placed new reporting obligations on all actors along the nuclear supply chain. These measures were supplemented by more general legislation and regulations on public procurement, the conduct of public officials and corruption. Whilst these steps have the potential to improve governance and integrity in the country’s nuclear power industry, some of the underlying causes of the earlier weaknesses remain. As a consequence, the transformation of Korea’s nuclear industry will be a long process.

Description: The article identifies and analyses disputes that frequently arise from Joint Operating Agreements (JOAs) in the upstream oil and gas (O&G) business from around the globe. The topics discussed in this article are:    •  a brief introduction to JOAs, their use in the O&G industry, and their key principles and provisions   •  the development and use of model JOAs and Accounting Procedures;   •  customary industry practice regarding JOAs   •  O&G law regarding JOAs;   •  a review of reported court judgments and international arbitral awards that dealt with JOA disputes; and   •  an analysis of the trends in JOA disputes and lessons that can be drawn from those sources.

Description: Energy is pivotal for socio-economic and cultural development. Last century witnessed a drastic increase, on one hand on the consumption of energy and, on the other on greenhouse gases emissions. Traditionally, energy security has been linked with the need to guarantee supply and, in turn, enables economic growth. Against this background, countries focused on diversifying both energy sources and trade partners while at the same time increasing investment in energy infrastructure and technology. Investment in low-carbon energy sources for enhancing national energy policies prompts for a new understanding of energy security. The aim is, in fact, not anymore limited to securing provision but also to strengthen diversification and counteract the negative effects of energy consumption on the environment. The need to include a sustainability component to energy in trade, business and in the society at large, is adding a further layer of complexity in shaping national and international energy policy. Strategies to balance energy security, business, trade, and sustainable development are urgently needed in the Anthropocene. Creative and innovative approaches to energy policy could be found in countries where energy consumption is on a steady rise and environmental degradation is crystal clear.

Description: The notion of Exclusive Economic Zone (EEZ) is a relatively new one. Its gestation during the second half of the 20th century was slow and arduous. But, after its birth, it gained a very important and crucial place within the sector of International Law and especially the branch of the Law of the Sea. Furthermore, it implicates strong and unprecedented geopolitical issues, emerged between a lot of neighbouring states. Pursuant to the rule establishing its notion, the EEZ confers upon a State a sovereign right, subject to a number of restrictions, which do not, nevertheless, affect the core of its integrity. But, in real international life this integrity is seriously jeopardized. International Law, because of its particularity, cannot be equipped by and enjoy the means of forced execution, which are inherent to the national legal system of every sovereign State. The EEZ, as it is provided by the International Law and especially the United Nations Convention on the Law Of the Sea, is not in reality a sovereign right of a State. It depends on the consensus of the State with adjacent coast and overlapping EEZ, which is a ‘prerequisite’ legally not existing.

Description: This article focuses on the regulations of the Convention on the legal status of the Caspian Sea (hereinafter as Caspian Sea Convention), which was adopted in 2018. It regulates the development and access to Caspian fossil fuel resources and protects its environment, which are important factors for the sustainable development of the region. The main finding of this article is that the Caspian Sea Convention, having established the maritime zones, has, for the first time ever, recognized the territorial sovereignty of the individual riparian states in the Caspian Sea and defined its territorial scope. After presenting to the riparian states’ their rights and obligations within the newly defined maritime zones, the article analyses the new legal framework for the development and use of the natural resources of the Caspian Sea. It also elaborates on the new legal regime for the transportation of resources by means of vessels and submarine pipelines.

Description: National energy security, parallel with the ultimate goal of emissions reductions, is of utmost priority for the Chinese government. In order to comply with the requirements set by the Kyoto Protocol, the Chinese government announced, on 25 November 2009, that 2020’s CO2 emissions would be reduced by 40–45 per cent in accordance with the data collected from 2005. Said goal was met three years ahead of schedule. Even in light of such an accomplishment, however, commentators suggest that the overall nationally determined contributions (NDCs) made by the Parties belonging to the Paris agreement are not enough to reduce global warming by even 2°C. This article focuses on the concept of energy security in assessing whether, and how, the priorities related to climate change are gradually changing. After analysing climate change’s impact on China, conducted via an analysis of the study’s available literature and through the support of international data, this article mainly focuses on the concept of energy security, itself. Under the second section, based on the examination of China’s efforts to transition towards a low-carbon economy, the authors provide a holistic definition of energy security through the lens of three dimensions: energy supply security, energy economy and energy ecological security. The third section, in turn, addresses the relationship between energy security and climate change. The results presented in the conclusion insist that, in order to strengthen environmental protection in China, it is crucial to reform the highly inefficient and strictly regulated national energy market. In doing so, China’s transition to a low-carbon society and economy could prove less painful, as China’s available resources offer the potential for a strengthened ecological dimension and sustained socio-economic development.

Description: Accession of Russia and Kazakhstan to the World Trade Organization (WTO) constitutes a landmark event in the history of this organization, especially in relation to trade in energy, in general, and trade in electricity, in particular. As a result, the role of the WTO in regulating trade in electricity has increasingly grown. However, the Treaty on the Eurasian Economic Union, a treaty that binds both Russia and Kazakhstan, necessitates additional regulation for trade in electricity, concurrent with law of the WTO. Recently, this treaty was amended by the Protocol on Common Electricity Market on 1 July 2019. As a result, compatibility issues between the rules of the WTO and the Eurasian Economic Union arise. This article concludes that the law of the WTO can be relevant to trade in electricity between Member States of the Eurasian Economic Union and third countries because of the specific place of the rules of the WTO under the Eurasian Economic Union legal order.

Description: The concept of commercializing natural gas through liquefaction to give liquefied natural gas (LNG), with the capacity for that LNG to be shipped worldwide to meet the demand for clean energy, is well known. The options for, and the opportunities for evolution in, how LNG is priced (whether locally, regionally or even globally, with indexation to crude oil prices or to reported gas hub prices) have also been widely discussed in industry literature. But into the LNG pricing mix, we could soon be adding a new value measure which could have the capacity to shape the way in which LNG production projects are configured—tCO2e (or, to give it its full name, tCO2e/tLNG).

Description: It has taken decades for the international community to recognize that climate change is a global issue that needs to be addressed by concerted international action. Many climate activists focus on the fossil fuel industry as the main culprit for greenhouse gas emissions and advocate for a cessation of investments in this sector. This is despite the fact that it is the use of oil and gas in housing, transportation and industry, not its production that represents over 90 per cent of its global emissions.1 This misrepresents the global challenge that is one facing society’s energy use at large. During this period of energy transition, and for decades to come, oil and gas will continue to constitute a major component of the world’s growing energy demand. All energy consumers, whether governments, industries and the general public therefore need to reduce their energy consumption, while producing countries and companies need to reduce their carbon footprint, as well as increase investments in renewable energy. In this context, Norway serves as a valuable case study of what it takes to become a carbon efficient energy producer. The example of Lundin Energy AB, one of Europe’s leading independent oil and gas producers, operating exclusively offshore Norway, shows how the Norwegian regulatory environment, coupled with the Company’s sustainability commitments and its Decarbonization Strategy, have resulted in the production of one of the lowest carbon intensity barrels in the world.

Description: Under current Iranian laws and regulations there is a requirement for an upstream petroleum contract to be managed by a joint venture entity and so the conclusion of a joint venture agreement (JVA) is compulsory in such petroleum projects. In this research article we first discuss the rules governing JVAs and the statutory requirements of such agreements in Iran. Then, by studying the relevant rules, we consider the advantages and disadvantages of the both unincorporated and incorporated forms of JVA and finally we discuss some of the implications of the JVA regarding tax, accounting procedures and fiduciary duties. We also consider the role played by unincorporated joint ventures and the joint operating agreement (JOA) in Iran.

Description: The purpose of this article is to present the multidimensional issue of an ‘energy transition’ from a philosophical, that is, conceptual and analytical, point of view. The argument of this article is that ‘energy transition’ is not simply a technological and economic problem but also an epistemological, cultural, anthropological and even metaphysical one. Energy transition does not only consist of changing the kind of energy that is produced and consumed to power our modern middle-income societies, from fossil fuels to renewable energies. Energy transition asks us to understand what is implied in cultural and social terms by such a shift from ‘grey’ to ‘green’ sources of energy that does not only entail qualitative transformation but also could imply quantitative curtailment. What will be the consequences of our necessary departure from ‘petromodernity’, that is, from the mode of living that came with fossil fuels in modern times that shape our current age of the Anthropocene? To address this question, different dimensions of the philosophy of energy will be studied: epistemological, phenomenological, anthropological, critical and metaphysical. In conclusion, we will, first, propose the notion of a ‘negative energy tax’ to address the problems of ‘energy injustice’. We will then refer to Bataille to provide an ontology of energy that can help to redefine our assumptions and expectations regarding energy spending.

Description: The purpose of the article is to analyse if bringing a case before the European Court of Human Rights (ECtHR) could be impactful in forcing greater climate change action. Part of this analysis is built upon the review of two climate change cases brought before national courts, since they have different outcomes even though both use the fundamental human rights of the European Convention on Human Rights (ECHR) as their legal bases. The cases are the Urgenda Foundation v. Kingdom of the Netherlands and the Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others. The Urgenda case establishes a link between the rights in article 2 and 8 ECHR, and climate change, which creates a positive obligation for a state to protect these rights by acting to combat climate change. The Swiss Climate Protection case, however, is dismissed. Both cases highlight some of the challenges regarding climate change in relation to the fundamental human rights of the ECHR. Judgments by the ECtHR are final, and the formally and informally binding nature of case law from the court is argued to indicate the possibility of a powerful tool in relation to climate change action since 47 states will be affected by the court’s decisions. However, if a case brought before the ECtHR has an unfavourable outcome in relation to forcing greater governmental action in combating climate change, this may also have greater consequences than such an outcome of a domestic challenge, since it will set a minimum standard of care, or completely exclude climate change in relation to human rights. The article argues that it should be considered worth the identified risks to bring a claim before the ECtHR even though it is uncertain if the evolving nature of the charter is ready to establish obligations in relation to climate change, due to the unprecedented and severe threat that climate change constitutes.