As explained in the introductory article, the special edition underscores the significance of adopting private law approaches in relation to the diverse issues of the energy transition. The volume of articles in the collection highlights the potential of private law doctrine and theory to provide practical solutions to climate challenges. Yet most of the existing literature and policy work on the energy transition misses the opportunity to engage with private law. This volume aims to highlight this gap in the literature and policymaking and attempts to remedy this.
Within the context of this volume, the term ‘private law’ serves as a useful shorthand for the bodies of law that are broadly concerned with the legal relationships, both voluntary and obligatory, between individuals, businesses, companies and other entities, or within communities’
The journal features key academic research addressing urgent issues ranging from the energy crisis in the UK to clean energy siting across Europe and North America. The articles featured in this edition underscore the importance of research at the intersection of private law and energy, to facilitate a the much-needed transition and to allow development in the law.
These articles provide insightful analysis of the challenges and opportunities that exist in energy policy law whilst illustrating their impact globally.
Public and Private Law for Decarbonisation
This essay by Katrina M. Wyman analyses public law efforts to limit climate change in the US and sets out three hypotheses for why private law has received less attention from scholars as a tool for decarbonisation:
- The importance of implementing public law to decarbonise. However, public law is insufficient on its own to avert climate change.
- The lesser visibility of private law in comparison to public law.
- It is still too early in the transition away from fossil fuels for private law to have played a significant role, at least in the United States.
It concludes by speculating about where scholars interested in private law’s intersections with the societal project of decarbonisation might look to find examples of the relevance of private law, focusing on property law.
As countries and societies make moves towards decarbonisation, there are valid grounds to reexamine the role that private law can play.
The (Shifting) Audience of Energy Law
Energy governance is multifaceted and complicated to manage economically, socially and legally. The scale and location of production, along with the identity of the producers, have become increasingly diverse, and this article acknowledges the context of both large-scale production of electricity and more distributed and individualised modes of production.
This article by Yael Lifshitz, highlights this shift by applying the concept of ‘audience’. The term ‘audience’ of law refers, broadly, to all the individuals, companies, institutions, and other actors for whom the law is intended or whose actions the law seeks to influence.
The article shows, first, how the audience of energy law has shifted in recent times. It then shows how a mismatch between the audience and the policy tool adopted can result in suboptimal results. Lastly, the article underscores how a private law approach will mitigate some of the mismatches in audience when it comes to energy governance as it has built-in mechanisms to reach individualised and diverse audiences.
The UK’s energy crises: A study of market and institutional precarity
Jodi Gardner and Mia Gray’s article examines the UK’s energy system, highlighting how electricity regulations impact low-income households. It reveals that 3.2 million people in the UK faced disconnection in 2022, equating to one person losing electricity access every ten seconds. Many also struggle with forced prepaid meters, leaving them without essential energy.
The article stresses that access to electricity should be a basic right and part of a "social minimum" for a decent life. It proposes stronger regulations, and public oversight to address these issues and prioritise energy as a public necessity.
The Public-Private Blur in Clean Energy Siting
Shelley Welton examines the interplay between public and private law in clean energy siting across Europe and North America. The article highlights how private mechanisms such as Community Benefit Agreements (CBAs) contribute to democratising reforms, acknowledging that while useful, CBAs are deemed incomplete substitutes for public law reform. Welton calls our attention to these blurred arrangements, and how more attuned solutions would be useful in identifying best practices. She argues that the public-private overlap can foster creative solutions, balancing community autonomy and democracy with infrastructure development and public welfare.