Journal of Energy & Natural Resources Law

Published quarterly, the Journal of Energy & Natural Resources Law is the journal of the International Bar Association’s Section on Energy, Environment, Natural Resources and Infrastructure Law.

Editor, Don C Smith

JERL was launched in January 1983, under the editorship of Professor Terence Daintith, now a Professional Fellow at the Institute of Advanced Legal Studies in London.

The Journal's current Editor is Professor Don C Smith (pictured left), Director of the Environmental and Natural Resources Program at the University of Denver (US) Sturm College of Law where he teaches Comparative Environmental Law and Contemporary Issues in Oil and Gas. He is assisted by the Journal Board and Editorial Advisory Committee, comprised of members of the Academic Advisory Group (AAG) of IBA SEERIL. Together, they bring to the journal an unsurpassed expertise in all areas of energy and natural resources law.

Featuring contributions written by some of the finest academic minds and most successful practitioners in this area of study, JERL is a highly respected journal committed to reflecting contemporary issues that face the energy and natural resources sectors. 

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Current issue – Vol 34 No 2, May 2016

The ink on the Paris Climate Change Accord had hardly dried, writes the Journal's editor Don C Smith, before the US Supreme Court involved itself in what is likely to be a very hard fought, drawn-out and uncertain legal battle over President Barack Obama's climate change initiative, the Clean Power Plan. He also announces that the Journal has been chosen for inclusion in a new scholarly index, the Emerging Sources Citation Index.

On 24 June 2015, The Hague District Court rendered a historic judgment in the climate case of Urgenda Foundation v The State of the Netherlands. The ruling marks the first successful climate change action founded in tort law, as well as the first time a court has determined the absolute minimum emissions-reduction target for a developed state, based on the duty of care and regardless of arguments that the solution to the global climate problem does not depend on one country's efforts alone. This article provides a summary of the case and background information to it, and some context with regard to the developments in climate change litigation. It closes with observations on the significance of the decision for climate change litigation in other jurisdictions.

This article situates the judgment of The Hague District Court in Urgenda Foundation v the Kingdom of the Netherlands within the life of global climate change litigation. To do so, the article concentrates on the legal particulars of Dutch law, elements of 'diffused' jurisprudence from other jurisdictions and the reasoning of the judgment that is 'diffusible'. First, the Court's mandate for the State to take more robust and immediate climate mitigation action was informed by particulars of Dutch civil and constitutional law. Such particulars assisted with crossing the hurdles of standing of Dutch citizens in a climate change case, and the imposition of liability on the State for transboundary harm. Secondly, in relation to the separation of powers, there is clearly a marriage of 'diffused' jurisprudence from other jurisdictions and Dutch legal particulars with the primary effect of providing Connecticut v AEP a second life. Thirdly, aspects of the Court's reasoning are 'diffusible' or amenable to transnational borrowing. Notable in this regard is the Court's adoption of a procedural version of the precautionary principle, whereby the onus of proving adequacy and effectiveness of climate policy is shifted on to the State. However, caution must be exercised in adopting the Court's reasoning as to why the international (namely the Intergovernmental Panel on Climate Change) is identified as a preferred benchmark for allocation of climate targets as against the supranational (namely the Effort Sharing Decision of the EU) and the implicit economic reasoning as to why the State's policies are ineffective. To overcome this problem, it is suggested that the appointment of experts by judicial bodies may be the way forward.

This article explores the interaction between mining laws and customary laws in Ghana and Western Australia, with a focus on heritage impacts. The legislation and policies of both countries are explained and compared, and draft model rules for heritage protection in Ghana are proposed. It is written to inform Ghanaian traditional authorities, lawyers and anthropologists/archaeologists, government policy-makers and mining companies operating in Ghana and is a call to action for lawyers and heritage specialists – both Ghanaian and international – to work with traditional authorities in utilising their customary authority and constitutional powers to increase heritage protection.

This article examines the clashes between national policies promoting green energy and international trade liberalisation commitments, using the Brazilian biofuels programmes, in particular the measures of mandatory blending and the Social Fuel Seal, as a case example. Drawing on past and present Brazilian legislation, this study initially analyses the driving forces behind the development of the biofuels agenda in Brazil and is followed by a discussion of the general principles of the law of the World Trade Organization concerning subsidies, national treatment and non-discriminatory rules, and the applicability of environmental, social inclusion and energy security exceptions to domestic policies supporting green energy.

This commentary examines the decision in Chevron Corp v Yaiguaje, which was released by the Supreme Court of Canada (SCC) on 4 September 2015. In the case, the SCC considered whether a Canadian court had jurisdiction to recognise and enforce a US$9.51bn judgment against Chevron (and its wholly owned subsidiary), which was issued by an Ecuadorian court. The SCC held that it did. It reasoned that there was no requirement for a real and substantial connection between a foreign judgment debtor (or the dispute from which the judgment arose) and a Canadian court before such a court has jurisdiction to recognise and enforce a foreign judgment. As a result, it appears that Canadian courts may be applying the low domestic standard for recognising awards from another province to awards from foreign countries. The fallout from this case will prove to be divisive. Human rights advocates will celebrate this case, hoping that it signals that Canadian courts will be taking a more active role in holding extraction companies accountable for human rights violations and environmental damages abroad. Sceptics will fear this case, believing that Canada's new role as a judicial trailblazer will come at a cost, discouraging foreign investment and potentially undermining international relations.

Given the important role that the United Kingdom offshore oil and gas industry has played in contributing to theUK's economy and energy security, it should not come as a surprise that the UK Government is eager to emulate, even if to a more modest extent, the success of the shale gas industry in the United States. The development of the shale gas industry is therefore firmly on the government's policy agenda and in recent years the former coalition government, and now the new Conservative government, have taken various steps to smooth the regulatory road for the industry. However, to date no production has commenced and it is clear that there are still difficult regulatory hurdles in place. This commentary considers recent regulatory developments and the issues they present for the industry. It is arguable that one of the main problems is the fact that the government is juggling two separate policies that are on a collision course with each other in the context of shale gas: on the one hand, a policy to support onshore shale gas; and, on the other hand, a policy to allow local communities a greater say in planning consent decisions.

 

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