Journal of Energy & Natural Resources Law - August 2014

 

Journal of Energy & Natural Resources Law articles are available to online subscribers and members of the IBA Section on Energy, Environment, Natural Resources and Infrastructure Law. To access the articles in this issue, you will need to sign in using your IBA username and password.

 
 

Vol 32 No 3 – August 2014

The matter of how best to regulate fracking is now a worldwide topic. This was evident recently at the IBA Biennial Conference of the Section on Energy, Environment, Natural Resources and Infrastructure Law, which met in Berlin. To be sure, many topics related to energy and natural resources were on the agenda. But perhaps no other topic was as fully discussed in the meeting, which brought together the world's leading energy and natural resource lawyers, as well as on the sidelines of the Conference, as that of fracking.
In short, the environmental, safety and community-related consequences of fracking associated with the development of oil and gas from unconventional sources have become a front and centre subject for many of the world's leading energy lawyers.

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This article considers recent renewable energy targets set by the New Zealand Government, being primarily to achieve 90 per cent of electricity from renewable technologies by 2025. These targets are found in the New Zealand Energy Strategy 2011–2021 and in the National Policy Statement for Renewable Electricity Generation 2011. The policy statement was issued under the Resource Management Act 1991. The policy includes renewable electricity generation from hydroelectricity, geothermal, wind energy, solar, marine energy and biomass resources. The article considers case studies on applications for approval of these developments, with a focus on the growth of geothermal energy and wind energy resources. Environmental impacts and indigenous cultural concerns are assessed. Matters of access to the national grid and economic factors are considered. Conclusions are drawn as to the achievement of targets.

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Wind farm projects have generated conflicts between a range of different interests. In the European Union (EU), the Renewables Directive sets out rules that have implications for how these conflicts are to be handled in the Member States. As interpreted by the European Commission, these rules obstruct the possibility of handling these conflicts through negotiations, deliberations and the involvement of non-state actors. However, this interpretation lacks a clear legal basis, and may also generate more, not less, opposition against wind farm projects. Such opposition may delay and hamper the development of wind farm projects. This is counterproductive to the goals for decreasing greenhouse gas emissions and increasing the use of renewable energy which the EU has set for the year 2020, and which the European Commission has recently proposed to set even higher for the year 2030.

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Sacred sites and traditional cultural properties are crucial to the preservation of indigenous peoples' culture and society, and are increasingly recognised by international and state law and non-governmental entities. This article explores the various legal and non-legal documents addressing sacred sites and traditional cultural properties, and the duties and responsibilities imposed on businesses involved in the resource extraction industries: conducting consultation with affected indigenous peoples and obtaining, at times, their free, prior and informed consent for the project. While by no means exhaustive, this broad survey encompasses laws and court decisions from international bodies, the United States and examples from other countries, international guidelines, industry standards and laws of indigenous peoples. It concludes that conducting good faith, socially appropriate and respectful consultation with indigenous peoples prior to conducting extraction activities that will or may affect sacred sites and traditional cultural properties is required not only by the law, but by good business practice. Consultation, obtaining free, prior and informed consent, and reaching formalised agreements result in the avoidance of protracted public litigation, and an improved business reputation when commencing future development projects on indigenous lands.

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In recent years, an increasing number of consultants, academics and government authorities in resource-rich countries have been mooting the idea that rights for hard-rock minerals should be tendered in the same way that in many cases rights for oil and gas are offered. The belief is that a greater, fairer and earlier share of economic rent/benefit will flow to the state. This commentary explores why tendering has been a very rare approach up to now for hard-rock minerals and argues that there are sound and valuable reasons why it should remain so. The author recommends prudent ways in which states can attract investment to their mineral sector and thereby maximise the national economic benefits.

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Professor Nigel Bankes reviews two new books: EU Law and the Development of a Sustainable, Competitive and Secure Energy Policy: Opportunities and Shortcomings; and EU Energy Law

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