Abstract
Making the energy transition just, where no one is left behind, requires energy justice. This results from the usefulness of energy justice, which enables assessing of energy policies and their tools. This evokes an issue of energy justice leaving the academic realm to reach the real world, where the theory becomes the practice. In 2023, enforcing energy justice through the legal system seems to be in the near future. The literature and research offer some solutions; however, a solid legal analysis is needed, and concrete proposals should be presented to the members of governments and parliaments. This study takes a step toward enforcing energy justice in the legal system and identifies a cascade of four conditions (definition, recognition, enhancement, and supervision) which is needed in this regard.
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1 Introduction
Energy justice is a growing theory in the literature. Journal publications, special issues, chapters, books, and conferences where energy justice is discussed are concrete proof of this trend. Its popularity gives it a greater voice in the current dialogue on the energy transformation and makes it more audible in the mainstream with its key message, which is making the energy transition just, where no one is left behind.
Energy justice theory enables reaching this postulate, as it has a possibility of assessing energy policiesFootnote 1 and their toolsFootnote 2 within its dimensions.Footnote 3 This evokes an issue of energy justice leaving the academic realm to reach the real world where the theory becomes the practice. To make it happen, and to enforce energy justice in the legal system, meeting a cascade of the following four conditions is needed. As these are actions, let us write them as activities: (1) defining; (2) recognizing; (3) enhancing; and (4) supervising.
2 Exploring the Four Conditions of Energy Justice
First, before moving to recognition, we need to find a common ground for defining what energy justice is. The mentioned literature offers us some solutions; however, the number of available definitions does not necessarily affect their quality. In this âbird chirpingâ, hearing the canary and not the crown is not an easy task. Moreover, we may like one definition, and dislike another, we may find one correct, another wrong, and different factors like our background, experience, or even spoken language will matter.
This leads to the second point, i.e., recognizing energy justice in legislation. Once energy justice appears in a legal act, among the first issues that need to be legally covered, would be defining it. To do this, one should refer to expert knowledge and the already mentioned literature, reviewing it and determining a legal definition. Solutions like establishing an expert panel for the needs of legal recognition of energy justice seem to be a good idea. What matters is the power and level at which energy justice should be introduced to the legal system.
Preferably, energy justice should be covered by an item of legislation that has a binding character, such as a law that would be passed in a formal parliamentary procedure (act, bill, etc.), signed by a representative of the executive branch (head of a country, president, etc.), and then published in an official state bulletin (journal of laws, official gazette, etc.). Apart from national legislation, there is a need for an international framework and for moving the academic discussions to the level of policy talks that can result in global arrangements on energy justice, with expert panels involved in creating legal frameworks such as a Protocol on Energy Justice (being a part of existing frameworks like the Paris Agreement and the United Nations Climate Change ConferenceâConferences of Parties, COP) or moving even further, by establishing a separate regime on energy justice with a Convention on Energy Justice.
The latter clearly shows what it means that energy justice will appear in legislation. In practice, this concerns energy justice having legal coverage. Apart from an international regime on energy justice, one can imagine a separate legal act at a national level, like the Act on Energy Justice, that will establish a framework for enhancing it nationally. This is, however, a maximum scenario, while experience rather teaches that step-by-step solutions are preferable, as they are easier to implement, given the difficulties in reaching needed majorities, and so acceptance for nonconventional approaches in law.
Hence, in practice, the element brought by the energy justice theory, like its five dimensions, could be observed in different legal provisions and then assessed from this theoryâs point of view, e.g., by evaluating if a given legal act meets the principles of distributive energy justice.Footnote 4 This requires conducting an energy justice test based on a scrutiny of a specific legislation with a lead question driving this evaluation: âdoes this law enable reaching energy justice?â. If the answer is yes, the following basic questions should be addressed: âto what extent?â, âhow quickly?â, âhow broadly?â, âhow deeply?â, and âhow costly?â. The mentioned different legal provisions usually cover such fields as reduction of emissions, promotion of renewable energy, enhancing energy efficiency, or addressing energy poverty, and so on.
Third, energy justice, defined and recognized in law, would need tools for enhancing itâwithout them it would be powerless. This especially concerns the possibility of launching a legal action on its basis. Here, different ways are possible, anchored in both private and public regimes. In terms of the first, acts against energy justice, e.g., its procedural or restorative dimensions,Footnote 5 would imply a possibility of launching a legal action against those breaching energy justice, just on the basis of energy justice.
In this way, energy justice would act like a general clause in the same way as already established environmental law clauses like the polluter pay principle. In this way, courts would implement energy justice via protecting human rights.Footnote 6 Regarding the public regime, one can imagine applying a criminal regime when a breach would be noticed (like, e.g., energy frauds hurting energy consumers); however, the nature of penal law would require a more specific legal framework than just general non-compliance with energy justice. This gives rise to a fourth pointâsupervision.
3 ConclusionâNext Steps
Apart from the possibility of filing a lawsuit based on a breach of energy justice, the binding character of legislation introduced for its needs should imply the establishment of an authority responsible for monitoring and enforcing the legal framework on energy justiceâsupervising. This could be a regulatory authority of a day-watcher type, an active observer, but not an active participant, always ready to intervene when needed.Footnote 7 In this way, a general non-compliance with energy justice could go under the assessment of the established regulatory authority that could impose an administrative fine for non-compliance. Alternatively, this could be an energy ombudsman created for the needs of protecting energy justice and its stakeholders, especially those vulnerable.
In 2023, enforcing energy justice through the legal system seems to be a matter of the near future. The literature and research offer some solutions; however, a solid legal analysis is needed, and concrete proposals should be presented to the members of governments and parliaments. It may be the case that this will require a broader approach, in which a new social contract should be established, since there has been a lack of collaboration among stakeholders for a long time,Footnote 8 and the energy business has been full of âpiratesâ, âsnakesâ, and âprofiteersâ.Footnote 9
The sooner it starts, the better, as action on energy justice is needed now. This should be accompanied by legal education on energy justice, as nowadays many professionals, including lawyers, researchers, and reviewers, do not really know what energy justice is. It is also an issue that the authors address energy justice without acknowledging what has already been discussed, while covering the same problems and topics.Footnote 10 This makes the debate harder, because it erodes its foundationâbut it reveals the importance of conducting it in such a way as to connect with the broadest possible audiences.
Notes
- 1.
Maciej M. SokoĊowski and Raphael J. Heffron, âDefining and Conceptualising Energy Policy Failure: The When, Where, Why, and HowâThe Search for the Just Solutionsâ (2022) 161 Energy Policy 112745.
- 2.
Maciej M. SokoĊowski, Regulation in the European Electricity Sector (Routledge 2016).
- 3.
Raphael J. Heffron and Darren McCauley, âThe Concept of Energy Justice Across the Disciplinesâ (2017) 105 Energy Policy 658.
- 4.
See Raphael J. Heffron, âThe Application of Distributive Justice to Energy Taxation Utilising Sovereign Wealth Fundsâ (2018) 122 Energy Policy 649.
- 5.
See Heffron and McCauley (n 3).
- 6.
See Raphael J. Heffron, âApplying Energy Justice into the Energy Transitionâ (2022) 156 Renewable and Sustainable Energy Reviews 111936.
- 7.
See Maciej M. SokoĊowski, âBalancing Energy Regulation: A Day-Watchman Approachâ in Robert Grzeszczak (ed), Economic Freedom and Market Regulation: In Search of Proper Balance (Nomos 2020).
- 8.
Raphael J. Heffron and Louis De Fontenelle, âImplementing Energy Justice Through a New Social Contractâ (2023) 41 Journal of Energy & Natural Resources Law 141.
- 9.
Maciej M. SokoĊowski and Madeline Taylor, âJust Energy Business Needed! How to Achieve a Just Energy Transition by Engaging Energy Companies in Reaching Climate Neutrality: (Re)Conceptualising Energy Law for Energy Corporationsâ (2023) 41 Journal of Energy & Natural Resources Law 157.
- 10.
See Manuela Hartwig, Seita Emori and Shinichiro Asayama, âNormalized Injustices in the National Energy Discourse: A Critical Analysis of the Energy Policy Framework in Japan through the Three Tenets of Energy Justiceâ (2023) 174 Energy Policy 113431; cf. Maciej M. SokoĊowski and Satoshi Kurokawa, âEnergy Justice in Japanâs Energy Transition: Pillars of Just 2050 Carbon Neutralityâ (2022) 15 Journal of World Energy Law & Business 183. And Maciej M. SokoĊowski, Cristiana Lauri, Andrew E Okem, Beatriz Olivera, Yuichiro Tsuji and Piotr Mikusek, 'Institutional Dimensions of the Just Energy Transition: Reflecting the Role of Energy Justice in Public Administration' (2023) 4(1â2) Global Energy Law and Sustainability, 177.
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SokoĊowski, M.M. (2024). Enforcing Energy Justice Through the Legal System: A Cascade of Four Conditions. In: Heffron, R.J., de Fontenelle, L. (eds) The Power of Energy Justice & the Social Contract. Just Transitions. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-46282-5_8
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