Energy Research & Social Science 59 (2020) 101305

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Energy Research & Social Science

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Original research article

Sovereignty, trade, and legislation: The evolution of energy law in a T

changing climate
Magnus Abraham-Dukuma
Energy and Climate Law, at the Centre for Energy, Resources and Environmental Law (CEREL), Te Piringa - Faculty of Law, University of Waikato, Hamilton, New Zealand

A B S T R A C T

Recent debates on climate change have necessitated a new seminal jurisprudence and proposition of constituents and core principles of energy law in the
Anthropocene. The proposed principles depart from the traditional notion of energy law, which focused on rights and duties of key industry players for economic
growth through optimal resource exploitation. Sovereignty over natural resources and sustainability are part of the proposed principles. This paper observes potential
conflict with international trade rules at the World Trade Organisation (WTO) amidst other conceivable debatable issues. It critically examines the likely coexistence
of trade rules, climate change objectives and sovereignty over natural resources through legislation considering emerging climate responsibility by corporate
structures in the energy industry. Policy insights revolve around reforms to achieve symmetry between sovereignty, trade and climate objectives. Specifically, these
include climate-conscious reforms in WTO law, incorporating positive energy industry obligations in climate deals and country-specific legislative reforms for
achieving climate objectives. These may not prove to be easy tasks. The egregious problem of sovereignty needs delicate attention in construing how it relates with
climate change measures, environmental policies at the WTO and sustainable development of energy resources. Reform processes at international and national law
would have to be structured systematically to achieve desired results. The personalities and processes for reforms also need critical consideration.

1. Introduction Climate Initiative (OGCI), Global Gas Flaring Reduction Partnership

Over two decades ago, while recognising the difficulty in achieving
consensus regarding the meaning of energy law, Bradbrook con-
ceptualised the field in his seminal paper as “the allocation of rights and
duties concerning the exploitation of all energy resources between in-
dividuals, between individuals and the government, between govern-
ments and between states” [18]. This covered the regulation of the
energy and natural resources industry to create correlative rights and
duties geared towards optimal resource exploration and development
for the economic benefits of all industry players. A key achievement of
Bradbrook's seminal paper was engendering the debate and perspective
of energy law as a separate legal discipline, but without clarity on its
constituents and comprehensive principles. This article presents shifting
notions and evolving principles of the field, more directly with a new
seminal jurisprudence; and how evolving principles intersect with in-
ternational trade rules and climate objectives. Amongst the collectively
recognised evolving principles, sustainability and sovereignty need at-
tention, especially in their relationship with international trade rules,
and legislating for climate change mitigation in the energy industry. In
recent times, there is more recognition by oil and gas companies of their
contribution to climate change. This has birthed renewed industry
collaboration to address emissions through technology development,
increased deployment of carbon capture and storage (CCS) and ex-
change of ideas. The Carbon Disclosure Project (CDP), Oil and Gas
(GGFRP) and the 2030 Zero Flaring Reduction Partnership (ZFR) re-
present positive testaments of industry paradigm shift in construing
climate change. These initiatives align with the principle of sustainable
development of natural resources; but tend to overshoot environmental
strictures of international trade rules. There is need for reforms to
achieve complementarity between trade rules, sustainability and leg-
islation to address climate change in the energy industry. The processes
of law reform would have to be optimised both at the national and
international scenes. WTO rules would have to be amended to be co-
ordinated with contemporary climate realities in energy production.
Countries would also need correlative law reforms in exercise of so-
vereignty for addressing emissions more proactively. This paper ad-
dresses these issues.
2. Literature review
In recent times, the debate as to the components and core principles
of energy law has surfaced sparsely in some leading energy law texts
[10,47,87]. This inadvertently coincides with the Anthropocene epoch
when climate change is gaining attention as a global concern of
humanity and the need for affirmative action through mitigation and
adaptation policies. The energy industry shares its responsibility for
anthropogenic climate change as a source of greenhouse gas (GHG)
emissions. Carbon dioxide (CO2), methane (CH4) and volatile organic

E-mail address: mca13@students.waikato.ac.nz.

https://doi.org/10.1016/j.erss.2019.101305
Received 4 April 2019; Received in revised form 4 September 2019; Accepted 12 September 2019
2214-6296/ © 2019 Elsevier Ltd. All rights reserved.
M. Abraham-Dukuma
compounds (VOCs) from flaring account for vast amounts of GHG
emissions in the oil and gas upstream sector and contribute immensely
to the greenhouse emissions footprint of the oil and gas industry [3]. In
the year 2015, gas flaring contributed to 22% of global upstream
emissions [65]. According to the World Bank Global Gas Flaring Re-
duction Partnership (GGFRP) data, in the year 2017 alone, the quantum
of gas flared by the global oil and gas industry stood at 140,570 billion
cubic meters [115]. In same year, there was a 1.4% global increase in
energy-related CO2 emissions, culminating in a historic record of
32.5 giggatonnes [75]. Amidst these climate realities, the Paris Agree-
ment seeks to address the threat of climate change, by limiting global
temperature increase well below 2 °C and pursue further reduction to
1.5 °C above pre-industrial levels (Paris Climate Change Agreement,
2015, art 2.). Apart from climate and environmental law trends, the
energy law academic space has been replete with considerations of
paradigmatic shift in focus from conventional notions of rights and
responsibilities for resource exploitation to comprehensive considera-
tion of ancillary issues bothering on climate change and sustainable
resource development and management [81]. There is also the discus-
sion for energy law as a discipline to develop its own goals and prin-
ciples for sustainability [62]. These considerations have necessitated a
new treatise for energy law as a discipline with seven core principles,
namely access to modern energy services, resilience, energy security,
national resource sovereignty, energy justice, sustainability and the
precautionary principle [48]. While this emerging jurisprudence may
constitute the subject matter of academic polemics and cross-fertiliza-
tion of ideas on energy law, this article proceeds with the inclination
that the core principles advanced may gain relative recognition and
prominence amongst academics, researchers, and policymakers within
the field. However, the focus currently is the interplay between the
principles of national sovereignty over natural resources, sustainability
in the context of climate change mitigation in the industry and inter-
national trade rules.
3. Methodology
The treatise on the constituents and proposed principles of energy
law is an innovation in the academic space, to the extent that it holi-
stically discusses proposed principles of the discipline. There is need to
examine the interaction of some of the principles in certain conditions
where tensions arise or are likely to arise. This present paper adopts
critical legal analysis in its examination of permanent sovereignty over
natural resources and sustainability as they relate with international
trade rules, legislating for achieving climate objectives, emerging cor-
porate environmentalism, and climate responsibility.
Accordingly, the following sections of the paper unfold as follows:
Section 4 examines the interactions between sovereignty, international
trade rules, corporate structures and climate change. Section 5 ex-
amines shifting paradigms amongst energy players and evolving cli-
mate responsibility, a departure from preconceived notions and cor-
porate denial of climate change. Section 6 discusses the need for policy
and legislative reforms to achieve symmetry between trade rules, cor-
porate climate responsibility within the energy industry, and legislating
for climate change; while conclusions and policy implications constitute
the themes of Section 7.
4. Sovereignty, trade rules, corporate structures and climate
The concept of national sovereignty over natural resources has very
close connection with energy exploitation and supply but poses a re-
curring controversial subject in international law [55]. This is a po-
tential technical problem for international or multilateral accords like
the United Nations (UN) climate change regime. It is trite principle that
independent sovereign states have permanent sovereignty over their
natural resources (United Nations General Assembly Resolution 1803 of
1962). This presupposes power of states to manage and exploit natural
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Energy Research & Social Science 59 (2020) 101305
resources within their territorial jurisdiction and devolve such power to
others (in the form of licenses and permits) according to national in-
terests and prerogatives without any form of external interference.
More so, the state establishes a regulatory framework for resource
management. It may be difficult for states to wholly comply with an
international obligation or rules limiting optimal exploitation of natural
resources, especially when the economy is largely dependent on re-
source exploitation. While such international rules may be laudable to
combat a common problem like climate change, they present potential
points of friction with sovereignty, especially when there are require-
ments to restrict or limit resource exploitation due to environmental
concerns. As states exercise sovereignty, which may necessitate a de-
viation from international top-down regulatory measures, the success of
mitigation commitments on states becomes uncertain because there is
no guarantee of compliance. If such commitments may not be strictly
adhered to by sovereign states, probably because of perceived conflict
of interests, the quest for climate justice becomes even more arduous
[9].
It is important to note the relationship between the principle of
sovereignty and climate change measures. The concept of sovereignty is
not limited to just state management of resource wealth. From the
climate change point of view, there is also environmental sovereignty,
which grants states power to legislate and promulgate policies for en-
vironmental protection [26,37]. So, over time, the principle of perma-
nent sovereignty over natural resources has permeated the political
right to self-determination, international human rights law, trade law
and environmental law [103], hence the notion of environmental so-
vereignty. In principle and fact, the sovereignty of states at interna-
tional law to willingly participate in multilateral agreements for ad-
dressing climate change is recognised and respected (United Nations
Framework Convention on Climate Change 1992, preamble; Paris
Agreement 2015, art 13(3)). There is also a strand of thought on the
importance of acting when discharges of pollutants and hazardous
substances imperil human life and endanger the resource wealth of a
tribe [51]. It can be argued that such acting could be construed as an
exercise of sovereignty through relevant environmental regulation or
policy for pollution or emissions control and remediation of impacted
sites. It is also possible that acting will mean control measures other
than regulation or policy by government, tribal/local authorities or the
personality or entity responsible for the environmental pollution.
Nevertheless, within the context of the present paper, the first under-
standing seems more likely. Additionally, another way of exercising
environmental sovereignty can be in the form of incentivising invest-
ment in low carbon and clean energy technologies. This mostly takes
the form of regulatory and policy instruments for climate financing
[76].
However, it may be apposite to juxtapose the foregoing argument
with the no-harm rule. This rule acknowledges the sovereignty of states
over their natural resources but also obliges them to ensure exploitation
of resources within their jurisdiction in such a manner that they do not
cause damage to the environment beyond their jurisdiction (Rio
Declaration on Environment and Development 1992, principle 2). Even
prior to the emergence of the Rio Declaration, it had been a trite cus-
tomary international law principle that sovereignty creates reciprocal
environmental responsibilities on sovereign states towards states be-
yond their immediate territories [23]. It has a dual-natured character –
rights and limitations [49]. In contemporary times, and in line with
principle 2 of the Rio Declaration, there is the necessity of rational
adjustments in perceptions about sovereignty over natural resources,
especially as exploitation of such resources impact the environment
[100]. The adjustments contemplated here touch on environmental
responsibilities of sovereign states to protect the climate as they ex-
ercise sovereignty in context of resource exploitation, and not just for
economic priorities or pecuniary benefits. At some points, this informs a
relational approach to sovereignty for international interdependencies
and cooperation required for addressing climate change [91]. This
M. Abraham-Dukuma
creates environmental due diligence obligations on states, whether they
are directly involved in the resource exploitation or merely regulatory
[99]. Ordinarily, this is a widely recognised concept in customary in-
ternational law [16], which should be a very relevant rule for addres-
sing climate change [67], but the theoretical expositions on the no-
harm rule and its practice often seem off tangent, as there is a wide gap
between theory and practice [53]. Nevertheless, the principle ne-
cessarily presupposes that states could dictate rules for energy ex-
ploration and exploitation in the context of sustainable development,
i.e. formulating rules for incorporating sustainability in the energy in-
dustry through statutory or legislative requirements on best environ-
mental practices. Despite how simple this may seem, the international
legal order on trade, as it is presently contrived, poses some difficulties
in achieving sustainable development in the energy industry with the
instrumentality of legislative instruments that place very stringent en-
vironmental rules on the energy industry and may have distorting ef-
fects on trade. It is thus pertinent to consider international trade (as it
relates to corporate structures within the energy industry) and climate
change.
There is the belief, supported by empirical study, that institutional
affiliations between countries and organisations greatly influence en-
vironmental policies domestically [29]. This paper proceeds with the
inclination that the WTO typifies such notion as far as the environ-
mental policies of its member states are concerned, especially trade/
economic practices harmful to the environment. The following para-
graphs elucidate this point. This situation is made worse by right-wing
populist ideologies where there is less regard for sustainable energy
transformation and more regard for economic interests [40]. The weak
climate policy direction of the United States of America under the
Trump presidency clearly exemplifies this second strand of thought [1].
Trade liberalization, an element of the international trade law/
rules, is a pivotal driver of international economic growth and in-
dustrial revolution, which leaves traces of environmental degradation
[34]. This creates a paradoxical interaction between trade, develop-
ment and environmental concerns [2]. Global trade rules emerged at
the international scene in 1947 with the adoption of the General
Agreement on Tariffs and Trade (GATT) 1948, which served as the
principal document governing world trade until 1994 when the Ur-
uguay Round of trade talks climaxed in the establishment of the WTO
(Agreement Establishing the World Trade Organisation 1994), com-
prising 164 countries and about 23 observer governments at the time of
writing (WTO [120]). Prior to the emergence of GATT, preferential
trade agreements (PTAs) underpinned the economic openness, in-
tegration and trade networks amongst states at bilateral and multi-
lateral levels [118]. Although there are fragmented conventions and
multilateral agreements relating to trade, which represent specific
sources of international trade law [31], the WTO exists as the pre-
dominant international administrative institution responsible for for-
mulating rules and ensuring smooth, predictable, liberalised trade and
community trade obligations among the nations of the world [63,108].
The impact of trade on the environment and the impact of en-
vironmental policies on trade are key issues in the recurring trade and
environment debate [117]. While it is apparent that the core scope of
the WTO is the provision of a common institutional framework for the
conduct of trade relations globally (WTO Agreement 1994, art II),
thereby creating an international legal order on trade, with a legal
personality (The WTO Agreement 1994, art VIII), its founding Agree-
ment also recognizes optimum resource use in the context of sustain-
able development and environmental protection. This recognition is at
best opaque, as it makes no operational or substantive provision for
addressing climate change or environmental aspects of trade [85].
However, other legal instruments within the WTO framework make
comparatively closer provisions (in the form of exceptions) on en-
vironmental sustainability. For example, the Technical Barriers to
Trade Agreement (the TBT Agreement) recognises the necessity of ef-
ficiency in production processes, improved resource use and
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Energy Research & Social Science 59 (2020) 101305
management (Agreement on Technical Barriers to Trade 1994, pre-
amble and art 1). The GATT allows for national regulation necessary for
the protection of health and environment (GATT [43], art XX). This
encapsulates price and market mechanisms in the form of environ-
mental taxes and trading schemes as measures for internalizing en-
vironmental costs such as GHGs [118]. Similarly, the Subsidies and
Countervailing Measures Agreement (SCMA) allows fiscal support
programmes for the promotion and deployment of environmentally
friendly technologies, which help to mitigate the environmental im-
pacts of corporate activities (Agreement on Subsidies and Counter-
vailing Measures 1994, art 8). Additionally, the Government Procure-
ment Agreement (GPA) tends to promote sustainable production and
consumption by availing states discretion to apply technical specifica-
tions and procurement evaluation criteria to promote the conservation
of natural resources and protect the environment (Revised Agreement
on Government Procurement, 2012). As can be observed, these provi-
sions are directed to states under the WTO framework, and not the
corporate entities carrying on business or trade. They are general ex-
ceptions to WTO core rules on trade restrictions and do not constitute
substantive mandatory obligations of states or even trading companies.
Their performance or execution lies within the purview of states
through legislation or regulation, as the case may be, albeit cautiously.
Therefore, corporate structures have no mandatory obligation re-
garding environmental protection or climate change mitigation under
the WTO. Similarly, energy and natural resources companies have no
trade obligations to reduce emissions traceable to their operations.
Moreover, these measures are subject to the condition that they do not
constitute arbitrary or unjustifiable discrimination of corporations and
constitute restrictions or distortions to international trade (GATT [43],
art XX). Even though there is recognition of energy efficiency in pro-
duction processes in the Technical Barriers to Trade Agreement, the
prohibition of technical regulations restricting trade poses a challenge
for states in enacting appropriate legislation to target emissions re-
duction in the energy and natural resources industry for fear of non-
compliance with WTO rules. While it is trite to avoid unjustifiable
discrimination, legislating on restricting energy production practices,
which contribute to climate change, may constitute restriction to trade
within the WTO framework and result in investor-state dispute settle-
ment (ISDS). The restrictive scope of these exceptions purportedly al-
lowing environmental and sustainable development policies constitutes
a barrier to environmental protection. States lacking mandatory
minimum standards on energy efficiency, decarbonisation and climate
change mitigation more often than not present the WTO rules as ex-
cuses or justifications for policy inaction, necessitating the thinking that
the WTO presents a barrier to climate action [14]. This also inhibits the
possibility of a radical action to proscribe fossil fuels [41], without
prejudice to the veracity or logicality of such an extreme measure.
Additionally, the absence of positive obligations, rather than just pas-
sive general exceptions, presents the WTO framework as unsuitable for
environmental protection and emissions reduction [20]. These diffi-
culties exemplify the general notion of complexity of international law
at different levels [68].
There has been a rife perception that international trade law and
climate change law are two separate bodies of international law with
complex regimes and cross-purposes that are difficult to align [36]. This
and earlier considerations in the previous paragraph underpinned the
earlier notion that the WTO is not the right avenue to tackle climate
change [39]; but in contemporary times, there has been an optimistic
shift in understanding the need for a reformed international trade
system that truly pays attention to the environment [13,22,89]. Apart
from their economic objectives, trade agreements may as well portend
untapped potentials for climate change mitigation [57]. Greenhouse gas
emissions emanating from oil and gas exploration, production and re-
fining processes constitute environmental externalities of oil and gas
companies in the global trading system [84]. As a way of addressing
this and generally mitigating anthropogenic climate change, there is a
M. Abraham-Dukuma
discussion regarding the possibility of using trade-related environ-
mental measures (TREMs), trade-related investment measures (TRIMs)
and sanctions against states without a price on carbon [109,72]; but
states have continuously exercised restraint in adopting such measures
[17]. Placing high import tariffs on products without clean technologies
or life cycle production processes, border tax adjustments (equalizing
tax on imported products to be same with domestic tax on similar do-
mestic products), eco-labelling (awarding eco-friendly labels to pro-
ducts for compliance with eco-friendly standards) constitute TREMs
and TRIMs in the literature [88,90]. Howbeit, these may be subject to
the restriction contemplated under the GATT, which permits only
charges on similar domestic products and reciprocal internal taxes by
WTO member states (GATT [43], art II). This presents difficulties for
wide range implementation feasibility.
Additionally, fuel subsidies for the oil and gas industry constitute an
incentive for continuous oil and gas exploration and production with
climate change implications, hence the call for their removal [45,69].
In fact, they tacitly condone energy-intensive industries like the oil and
gas sector and serve as a subtle discouragement for investments in ef-
ficiency and clean energy development [92]. Surprisingly, the global
trade legal regime has maintained historical silence over this [95].
Away from this conspiratorial silence, international trade can make
vital contributions in scaling up decarbonisation through clean pro-
duction systems and technologies [30]. Considering the general diffi-
culties associated with formulating policies that affect trade, examined
in the foregoing paragraphs, there is need for reforms in WTO rules to
curb such environmentally harmful practices [64], and meet crucial
environmental imperatives of the growing climate science [105]. Ra-
ther than fossil fuel subsidies, there could be subsidies to incentivise
more investments, adoption and use of clean energy systems [33].
However, it is important to note that fossil fuel subsidy removal could
have a distorting effect on trade investments and other conceivable
economic and environmental implications [106]. According to a report
prepared by Wood Mackenzie for the American Petroleum Institute
(API), fuel subsidies removal can lead to as much as 14% reduction in
oil and gas production in the United States (the US) alone and further
reductions globally, and consequential oil and gas production related
GHGs; but with potential for massive job losses and multifaceted eco-
nomic implications [111]. While this may seem revolutionary, a rather
soft approach may be to subsidise only oil and gas ventures that in-
corporate fuel efficiency standards, and cleaner production processes
into their corporate value chain, but critical independent monitoring
and compliance assessment become considerable issues for successful
implementation of such an option.
Notwithstanding, it is possible for states to explore preferential
trade agreements (PTAs) and regional trade agreements (RTAs) to
achieve emissions reduction in order to circumvent most of the diffi-
culties associated with multilateralism [56]. For example, the Trans-
Pacific Partnership recognises the interdependence of economic devel-
opment, environmental protection and sustainable development; and
makes positive substantial provisions on environmental protection in
course of trading (Trans-Pacific Strategic Economic Partnership
Agreement 2005, arts 8, 10 and 16). The negotiating process of the
Transatlantic Trade and Investment Partnership between the EU and
the Americas makes similar recognitions and provisions. Although still
an ongoing process, the draft agreements were shrouded in secrecy at
the time of writing; but leaks from Green Peace suggest incorporation of
the ultimate objective of the United Nations Framework Convention on
Climate Change (UNFCCC) and the Paris Agreement and prerogative of
parties to determine their sustainable development policies and prio-
rities in trade deals [44]. As the negotiations are still an ongoing pro-
cess at the time of writing, if the leaked texts are anything to rely on or
eventually form part of the substantive agreement, there may be a
nuanced departure from the WTO paradigm as signatories may have a
better framework document for balancing trade and environmental
concerns. A point of contention would be reconciling this proposed
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Energy Research & Social Science 59 (2020) 101305
agreement with the obligations of parties who are also parties to the
WTO Agreement, but entrenching environmental and climate policy
obligations in such regional trade agreements underscores the need for
policy symmetry and coordination between trade law and climate
change law [32]. While this particular issue may constitute a topic for
polemics and academic debate, the limited number of participants, di-
rect reciprocity, opportunities for policy experimentation and their
unique contextual drafting targeting trade-related aspects of climate
change mitigation are considerable distinctive features that show po-
tentials in PTAs and RTAs [71]. However, a more fruitful pact may be
PTAs and RTAs that include major GHG emitters generally, and major
emitters from the energy and natural resources industry particularly.
Further still, beyond harnessing PTAs and RTAs for achieving global
environmental objectives, linking trade-related initiatives and multi-
lateral agreements such as the Paris Agreement may achieve wider
impacts considering the wider reach of its multilateral scope (Di [54]).
As optimistic as these may seem, achieving such structural inclusiveness
may present a herculean task, apparently because of the general pro-
blems associated with international law examined above and the
penchant for unilateralism against multilateralism as exemplified by the
United States (a major GHG emitter) in the Paris Agreement exit. Still,
there is critical legal work to be done in striking feasible balance and
compromise in the linkages between trade and environmental goals
[60].
5. Energy players and evolving corporate climate responsibility
Sustainability is a cardinal concern for businesses, especially with
increased climate change awareness. In recent years, private regulation
has evolved as an important source of global climate governance [34].
Sectoral frameworks and international cooperative initiatives (ICIs)
geared towards emissions reduction and climate change mitigation in
the oil and gas industry have emerged as well. This trend is not limited
to the energy industry, but cuts across various sectors of the global
economy, based on both private and public-private partnership ar-
rangements. Recent climate initiatives in the oil and gas sector, and
indeed the entire energy industry, underscore the need for transfor-
mative change in the industry [74]. This, perhaps, lends credence to the
evolving jurisprudence of incorporating sustainable development as
one of the core principles of energy law. Few of such initiatives are
relevant to the present examination and may merit a brief discussion. In
this respect, schemes such as the World Bank Global Gas Flaring Re-
duction Partnership (GGFRP) and the 2030 Zero Routine Flaring (ZRF),
Carbon Disclosure Project (CDP), and the Oil and Gas Climate Initiative
(OGCI) come to mind. Additionally, independent proposed and ongoing
climate initiatives of private corporate actors in the oil and gas industry
may seem a positive commendable direction worthy of consideration,
perhaps a testament to the optimism for possible linkages between
trade and climate change objectives.
5.1. GGFR and 2030 ZRF
As already pointed above, the contribution of flaring alone to global
upstream emissions for the year 2015 was pegged at 22%, while
140,570 billion cubic meters (bcm) of gas was flared in the year 2017,
representing the sum of oil and gas producing countries flaring data for
the reference period. While this has been a historical trend dating back
to decades, reduction initiatives have emerged at the international
scene only relatively recently, with the GGFRP being the most promi-
nent [86]. The GGFRP and 2030 ZRF are two key public-private part-
nership initiatives of the World Bank – comprising national and inter-
national oil companies (IOCs), international institutions, national and
regional governments – to address this industry challenge. The GGFRP
comprised 18 governments, 13 IOCs and 3 international organizations
totalling 34 members; while the ZRF had 27 states, 34 IOCs, and 34
intergovernmental organization totalling 95 participating members at
M. Abraham-Dukuma
the time of writing (World Bank GGFRP, [116]). The former started in
the year 2002, with the key objective of serving as a catalyst for op-
timum gas utilization by working towards removing technical and
regulatory barriers to flaring reduction through stakeholder facilitation,
policy change, research, dissemination of best practices and project
implementation (Climate Initiatives Platform, [24]). The latter, which
began in the year 2015, furthers the objective of the former but with an
additional aspiration of ending flaring by 2030. Apart from their gen-
eral methodologies for goal execution, there are specific instruments
through which these initiatives operate. Although there is explicit re-
cognition that direct regulation of gas flaring falls within the jurisdic-
tion of countries and their relevant national energy and environmental
authorities [112], the GGFRP and ZFR formulate periodic guidelines
necessary for emissions reduction. For example, the 2008 Guidelines for
Flare and Vent Measurement recommends use of gas-to-oil ratios
(GORs), mass balance and process simulations as best practice for flare
and vent estimation in order to achieve accurate measurement and
mapping appropriate reduction methodologies [113]. A further 2009
guidance recommends targeted contractual, fiscal frameworks, and
appropriate penalties to incentivise flaring reduction; and states clarity,
autonomy, participation, accountability, transparency and predict-
ability as criteria for relevant regulators [114]. A latter technical gui-
dance on gas monetization proposes technical processes and new
technologies for the conversion of flared gas into chemicals and liquid
fuels rather than flaring [38].
The multi-sectoral character of participants of these initiatives –
crisscrossing IOCs, governments of sovereign states, and relevant in-
ternational and intergovernmental organisations – provides a good
platform for ideological and pragmatic interchange amongst relevant
players. However, without casting aspersions or doubts about the pos-
sibility of achieving zero gas flaring by 2030, as projected by the
GGFRP and ZFR, one may be inclined to ponder the magnitude of in-
fluence these initiatives have for incentivising emissions reduction and
likely success. A 5% global flaring reduction was achieved by the end of
2017 (Climate Initiatives Platform, [24]). Unlike the 147.6 bcm of gas
flared in 2016, the total flare sum for 2017 was 140.6 bcm. While this
reduction may seem infinitesimal compared to the climate change im-
plications of the still high percentage of flaring, it remains a com-
mendable achievement with plenty room for improvement. However, it
may be inappropriate to conclude or ascribe this reduction solely to the
working of the GGFRP and ZFR initiatives. There could have been
country-specific national measures and other conceivable factors that
contributed. Moreover, the voluntarist approach of these initiatives
questions the possibility of serious compliance. This leaves them with
the challenges of implementation and reignites sentiments of emissions
reduction as being a sovereign state responsibility of oil and gas pro-
ducing countries [98].
5.2. GHG reporting schemes: CDP as a test case
Carbon disclosure and reporting schemes have evolved over the
years with initiatives such as the Greenhouse Gas Protocol (GHGP),
International Standards Organisation (ISO) 14064 for Greenhouse Gas
Accounting and Verification, the United Nations Global Compact and
Global Reporting Initiative (GRI) and the Carbon Disclosure Project
(CDP). These have been contrived with the expectations of enabling
corporations to strategize on carbon risks and influencing appropriate
decision-making for climate change mitigation (Andrew and Cortese
[5]). This paper does not intend to discuss all these schemes, but the
focus is a conceptual examination using just the CDP as a test case,
partly as it constitutes one of the earliest reporting systems [12], and
falls as one of the most commonly used reporting platforms (Whitfield
and McNett [110]. CDP is a United Kingdom-based global carbon dis-
closure system founded in 2002, which affords companies, regions,
states, cities and investors a platform to self-measure and manage their
environmental footprints (CDP [21]). Its reporting parameters include
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Energy Research & Social Science 59 (2020) 101305
risks and opportunities, performance, GHG emissions accounting and
governance. Research shows that companies’ strategies to address cli-
mate change may be supported by their annual corporate reports
showing quadrants such as environmental asset management, loss and
pollution prevention, GHG emissions and mitigating strategies [35].
Although the carbon reporting of the CDP is at the discretion of parti-
cipants, the CDP issues periodic guidance. Some key players in the oil
and gas industry take part in the scheme annually. Apart from this, from
a conceptual perspective, corporate disclosure of environmental foot-
prints qualifies as part of the fiduciary duties of corporate structures to
their shareholders and investors [80], partly because the impact of GHG
emissions on financial value represents one of the core concerns of in-
vestors [46]. In this respect, shareholder activism and the opportunity
for emissions reduction publicity by corporations potentially influence
corporate environmental disclosures [107]. To the extent that such
disclosures incentivise corporate entities to reduce emissions, environ-
mental disclosure initiatives may constitute a sort of quasi-regulation of
oil and gas exploration and production companies for climate change
mitigation. There is also the assumption of correlation between cor-
porate environmentalism and innovation [52], i.e. corporate environ-
mental awareness through carbon disclosure schemes can incentivise
corporate adoption of innovative solutions for emissions reduction. To
shareholders, investors, the public and surrounding communities
(especially because of likely contentious community issues), the en-
vironmental performance or climate compliance of oil and gas com-
panies may garner reputation and a sort of social licence to operate
[96]. Although this growing concept is yet to be formally entrenched
into legal systems, its recurrence has the potential to spur corporate
entities into changing their modus operandi [73]. This may not be the
case for some investors who construe poor environmental performance
as negative impacts on anticipated profitability of their investments
regardless of climate change concerns [58]. Nevertheless, the notion of
CDP and similar initiatives constituting a rich database upon which to
contrive or gauge corporate climate change strategies and policies [8]
may at best represent idealism with critical concerns about reality, as
the discussion reveals.
The voluntarist approach of the CDP inhibits consistency or con-
tinuity of corporate emissions disclosure by oil and gas companies.
While some players may be willing to disclose their emissions profile,
some others may not always be willing to do so. Their environmental
profile or legitimacy constitutes a key factor that influences the possi-
bility or not of their corporate carbon disclosure [59]. There are also
considerable variations in emissions data, with some firms being com-
prehensive in their response to annual surveys and others being opaque
and hiding their emissions profile from public scrutiny [66]. For ex-
ample, according to available data, between the years 2016 to 2018,
mixed reactions trailed CDP's disclosure requests (CDP [21]). While
some companies responded and attained different scores, some others
failed to respond in some cases and responded partially. For example,
Total participated in the years 2016, 2017 and 2018, with “B”, “A”, and
“A” ratings for the three years respectively. Royal Dutch Shell partici-
pated in the three years under reference, with “A”, “B”, and “C” ratings.
Chevron participated in 2016 and 2017, with “B” ratings for the two
years, but declined to participate in 2018. British Petroleum (BP) par-
ticipated in 2016 and 2017, with “B” and “A” ratings for the two years,
but did not respond to 2018 disclosure request. Exxon Mobil partici-
pated in 2016 and 2017, with “C” ratings for the two years, but did not
respond to 2018 disclosure request, as BP. Sinopec did not respond to
disclosure request at all for the three years under reference. Saudi
Aramco and Petróleos de Venezuela, S.A. (PDVSA) represent examples
of companies that had never participated in the initiative, at least from
its inception until 2018. Additionally, there is the possibility of political
ideological influence in participation and disclosure. The US shows an
example of how the variables of political preference and political power
can influence the will of firms to disclose their environmental perfor-
mance. It is common that political parties in the US (in this case, the
M. Abraham-Dukuma
Democrats and Republicans) are divided across party lines on the ne-
cessity of addressing climate change through relevant climate policies
for the oil and gas industry. Research shows that, apart from this
ideological division, different oil and gas companies tend to act in ac-
cordance with the political leanings of their locations, so that firms
located at Republican domains are less likely to disclose their en-
vironmental performance [50]. This may be true for countries with
similar political preferences like the US. Notwithstanding, it is im-
portant and cautious to note that these examples are sourced from a
search – search and view past CDP responses – conducted on the CDP
website, and do not in any way tend to portray and/or project the
environmental stewardship status of any company. On the contrary,
they only sample some key industry players willing to participate in the
CDP, the comprehensiveness of their emissions disclosures and ro-
bustness of their corporate policy response to climate change. The ex-
amples do not also represent an exhaustive list of all the responses of oil
and gas companies to the initiative, as there are others on the CDP site.
Another issue worth reflecting on is whether the disclosures lead to
result-oriented climate actions in the context of emissions reduction or
just mere greenwashing of oil and gas companies for their economic
advantage. In the heat of the climate change debate and linkages with
the oil industry, there have been increased corporate greenwashing and
gestures of corporate environmentalism from the sector [19]. Their
annual corporate reports, comprehensive reporting of emissions to vo-
luntary carbon reporting schemes such as the CDP, with mitigating
strategies may be symbolic of corporate environmentalism. Never-
theless, these may not necessarily guarantee emissions reduction or
reflect true environmental status or performance [61]. However, it is
expedient that the reported environmental indices of oil and gas pro-
ducing companies translate into tangible and feasible investments in
emissions reduction. Such investments would match emissions reports
with correlative action and consequential climate change mitigation. In
the absence of these, symbolic corporate environmentalism may at best
be a mere corporate rhetoric with little relevance with respect to cli-
mate change mitigation.
5.3. The OGCI and private corporate initiatives
In the preliminary years of climate policy evolution, the oil and gas
sector maintained a uniform defence against the climate change debate
as a conspiracy theory to oust them from business [7]. Recent sector-
driven initiatives such as the Oil and Gas Climate Initiative (OGCI) may
portend a divorce or paradigm shift from this old bias. The OGCI is a
voluntarist Chief Executive Officer-led industry-specific collaboration
that serves as a catalyst to address climate change in the oil and gas
industry [79]. At inception, ten global industry players – BP (U.K.),
Total (France), Saudi Aramco (Saudi Arabia), Royal Dutch Shell (the
Netherlands), Petrobras (Brasil), Pemex (Mexico), Eni (Italy), CNPC,
Statoil (Norway), and Repsol (Spain) – launched it at the UN Climate
Summit in New York, September 2014 [77]. In September 2018,
Chevron, Exxon Mobil and Occidental Petroleum Corporation joined
the initiative, making its membership 13 oil and gas companies at the
time of writing [77]. Its programme encapsulates three cardinal ob-
jectives of reducing energy footprint (energy intensity), accelerating
low-carbon solutions and enabling a circular carbon model through
carbon capture, use and storage (CCUS), improved industry energy ef-
ficiency, methane emissions reduction, and transport emissions reduc-
tion as its main areas of focus. It also plans a ten-year $1 billion in-
vestment in these areas through $100 million contribution from each
member.
In contrast with earlier critical thoughts on greenwashing and
symbolic corporate environmentalism with respect to the reporting
programme of the carbon disclosure project, oil and gas companies
seem to be metamorphosing from their position of climate laggards to
potential climate action leaders within the OGCI framework [6]. Some
reasons may lend credence to this positive perspective. In pursuit of its
6
Energy Research & Social Science 59 (2020) 101305
strong internal climate/environmental targets, it has made financial
commitment in terms of investments in technologies and research and
development of innovative methods of operation. After its inception,
the OGCI commissioned a research to assess the availability of critical
infrastructure and storage capacity for its CCUS programme [78]. In
2017, in keeping with its objectives, it invested in a CCUS project in the
UK that has a potential impact of removing 90% CO2 from gas, provided
financial and technical assistance to two studies on methane emissions,
and invested in Achates Power, a company undertaking research and
development of energy efficient engines [78]. These and similar in-
vestments have emissions reduction potentials. Similarly, at the time of
writing, all its members were providing emissions data and collectively
invested $5.5 billion in low carbon energy technologies and acquisition
[79]. The unanimous willingness of its members to provide emissions
data is a departure from previous observation regarding the Carbon
Disclosure Project above, where inconsistency, unresponsiveness and
lack of comprehensiveness characterised requests for carbon reporting.
Aside the collective industry action exemplified by the OGCI, oil and
gas majors have also independently and individually acknowledged the
problem of anthropogenic climate change, their share of responsibility
and enunciated self-imposed targets and GHG emissions reduction
measures [94]. For example, Royal Dutch Shell plans a 20% net carbon
emissions reduction by 2035 and potential further reductions in line
with global society target by 2050 [93]. One of the ways it intends
achieving this target is reducing operations emissions, including oil and
gas production processes. Some other possible strategies it proposes to
implement include changing the proportion of gas to oil at production
from 50% to 75% for reduced flaring, selling biofuels produced by 25
biofuel production companies and developing the capacity of 20 CCUS
plants in Canada. These all seem positive trajectories towards achieving
transition in line with its new corporate policy on energy transition,
which intends resilience in the mid-term (till 2019 to 2030) and
changing investment portfolio and operational paradigms in the long-
term (after 2030). Despite these positive ambitions, a point of worry
may be its disclaimer on the lack of immediate plans to move towards a
net-zero emissions portfolio over its investment horizons of 10 to 20
years. This may qualify as an implied formal statement of a ten-to-
twenty year delay of prompt corporate actions for net-zero emissions.
Invariably, the world may have been handed a justification to expect
little action from Shell, in spite of its beautiful transition ambition.
Nevertheless, while it makes no plans to achieve net-zero emissions
within 10 to 20 years’ time, a successful implementation of its climate
initiatives, which results in considerable emissions reduction, will be a
progressive path, no matter how little.
Similarly, Total has made climate issues an integral component of
its strategic corporate vision alignment with the Paris Agreement ob-
jectives [102]. The company has an ambition of becoming the re-
sponsible energy major, and recognises the need to address climate
change impacts of its operations [101]. It hinges its climate policy on
improved energy efficiency, renewable energy development (through
biofuel investments), and reducing the carbon intensity of production
processes by 15% from 2015 to 2030 in the short-term, and a long-term
reduction target of 25% and 35% reduction by 2040. An ambitious
target in its climate policy is to achieve net-zero flaring by 2030, with a
short-term flaring reduction target of 80% from 2010 to 2020. Ac-
cording to its report, it claims to have achieved a 30% emissions re-
duction generally and an 87% reduction of routine flaring particularly
from 2010 to 2017, slightly above its flaring reduction projection of
80%. Additionally, it claims to have made a research and development
(R&D) spending of $912 million in 2017 as part of its commitments to
address climate change in its oil and gas production activities. As al-
ready noted above, other oil and gas majors are also making efforts
towards climate change mitigation in course of their operations, but
these are just examples of private independent industry initiatives
worthy of recognition.
While the OGCI initiative of the oil and gas industry and
M. Abraham-Dukuma
independent initiatives of industry majors in addressing climate change
may be commendable, only time will tell whether they live up to their
bidding of emerging energy industry climate actors. The important
consideration of relevance to this paper is achieving emissions reduc-
tion in oil and gas production particularly and the industry in general.
As these initiatives are relatively in their nascent phases, perhaps it is
better to allow them some space to function for a while before under-
taking a critical examination on them. Moreover, the OGCI's $1 billion
investment accelerating low-carbon solutions and reducing energy
footprint is a ten-year plan. However, the OGCI is a commendable in-
dustry effort worthy of cautious and critical consideration with time.
This also applies to the various independent initiatives of corporate
structures in the oil and gas industry.
6. Need for policy symmetry and legislative reforms
Irrespective of the foregoing considerations, while the industry
seems to recognise climate change and is taking appropriate measures
in this respect, private regulation does not necessarily have to supplant
state regulatory and policy interventions. On the contrary, governments
need to step up their regulatory and policy preparedness towards sus-
tainability and climate change mitigation in the energy industry. While
international organisations and legal regimes may have crucial roles
and commendable initiatives, arguably, the energy destiny of the world
lies in the policy trajectories, decisions and actions of independent so-
vereign states. Here comes the need for regulatory reforms at both the
national level (through appropriate legislation) and the international
level through reformed trade rules for more recognition of practical
corporate imperatives for climate responsibility in course of trade with
respect to the energy industry.
Considering the foregoing, the reform process (at both state and
international levels) is an issue deserving examination. Two key issues
become relevant for discussion – who to reform and how to reform.
Conceptually, law reform usually involves different phases – setting
terms of reference, research, consultation, publication of issues paper,
submissions, report, and amendment/change [25]. This can also take
different forms and initiated by an interest group, a governmental de-
partment, a political party, or even a non-governmental organisation;
but the legislature eventually performs the task of carefully drafting/
redrafting the law to reflect the needed change [15]. Part of Section 4
above discusses the need for a reformed international trade law that
pays attention to the environment, given the evolution of energy law
and climate change debate. One point to add in this respect is that the
need for modernising international trade system to support innovation
and environmental sustainability has received much scholarly attention
in recent times [104,97,27]. Therefore, it may be appropriate to un-
dertake the processes of law reform outlined above to initiate suitable
changes to the law.
However, it is important to note that while the approaches outlined
represent the conventional procedures for law reform at the state level,
the task may not seem simplistic for international law. This is due to
challenges of regime complexity [4] and scepticism resulting from in-
stitutional structure, legitimacy concerns and relationship with the
principle of sovereignty [82]. Globalisation, multiplicity of state actors
and multilevel structures also constitute challenges capable of stalling
reforms in international law [83]. The WTO is also susceptible to these
difficulties, being an international law instrument. For example, any
amendment to WTO rules requires re-negotiation and resolutions that
must be accepted by two-thirds of contracting parties (WTO Agreement
1994, art XXX). It becomes evident that reforming international trade
law falls within the powers of states who are signatories to the WTO
Agreement; and requires extensive negotiations. Without mincing
words, international trade law largely ‘hinges upon the state of play of
international negotiations’ [28]. The negotiations can take many years
with or without resolutions. This factor generally characterises the in-
ternational law on trade as being slow in responding to challenges [70].
7
Energy Research & Social Science 59 (2020) 101305
For example, the negotiations on trade and the environment are key
components of the Doha Development Agenda – round of trade talks –
launched at the Fourth WTO Ministerial Conference in Doha, Qatar, in
November 2001 (WTO [120]). In 2013, twelve years later, the WTO
Committee on Trade and Environment in Special Session (CTESS) was
still discussing ways to achieve reforms for reducing and eliminating
barriers to trade in environmental goods [119]. There is also the notion
of process and organisational deficiency in driving reforms at the WTO
[42]. Arguably, the law – either at national or international level –
should be dynamic enough to evolve with changing times and respond
to contemporary issues. On the contrary, if the law adopts a snail-speed
motion to issues, it is likely that the society would advance beyond the
law. In an era of logical science-backed evidence on climate change,
and the need for change in business models, it may be worthwhile to
reconsider the prevailing legal order on trade in a manner that is sus-
tainability-oriented.
The difficulties involved in reforms are real, as the above paragraph
reveals. However, appropriate triggers, real consultation and negotia-
tions; focus on the facts, and practical timely recommendations may
help facilitate a successful process [11]. It is probable that the science of
climate change, proposed changes in energy law and the transition
debate could be triggers for sincere and objective negotiations for re-
forms at the WTO. Reforms at the two fronts – domestic and interna-
tional – will need to be coordinated in order to address the issues dis-
cussed in this paper and avoid conflicts. It is the argument of this paper
that appropriate reforms within the WTO system and complimentary
amendments in the laws of member states through legislation may
contribute considerably to coexistence of trade rules, climate change
objectives and sovereignty over natural resources. Rather than conflict
between sovereignty and international trade law, the reforms could
create a regime of domestic-international cooperation and com-
plementarity in achieving both economic and environmental goals. This
brings us back to the start of the examination on traditional and evol-
ving notions of energy law as an academic discipline. The various
proposed principles in the new seminal jurisprudence on energy law
examined in Section 2 above present academics and policymakers with
different pieces of the contemporary energy-climate change puzzle,
which challenge traditional notions. Possibly, there could be further
academic debates on these principles. Such cross-fertilization of ideas
constitutes part of the hallmarks of scholarship. Nevertheless, the pro-
posed principles may as well represent the new reality of global energy
law narrative and necessitate consequential shifts in legal paradigms
and perspectives.
7. Conclusion and policy implications
The new seminal jurisprudence on energy law presents core prin-
ciples that challenge traditional notions of the field. While the tradi-
tional notions were circumscribed to the existence of rights and duties
of key industry players for economic growth through optimal resource
exploitation, evolving notions embrace a broader mix of principles
cutting across energy, environmental, developmental and climate ob-
jectives. They may be debatable but represent contemporary realities.
This paper has critically examined the interplay of two of such princi-
ples – national sovereignty over natural and energy resources and
sustainability – in context of coexistence with international trade rules
and highlighted certain difficulties. The argument observes difficulty in
entrenching such principles without paradigm shifts in the international
legal order on trade and legislative amendments to reflect the new
realities. Therefore, international trade rules and energy-related statu-
tory instruments need some amendment in order to be symmetric with
achieving climate objectives in the energy industry. The key personal-
ities to drive reforms of international trade rules would be the signa-
tories to the WTO establishment agreement and other complementary
trade pacts. For countries, their legislatures have a task of reforming
energy and environmental laws to effectively address current realities,
M. Abraham-Dukuma
especially climate change concern. These would not be easy, con-
sidering the difficulties involved in law reform processes both at na-
tional and international scenes. Extensive negotiations, regime com-
plexity, scepticism, multiplicity of states are some major challenges
with international legal reforms. However, the reforms would need to
be coordinated, well-structured and timely in order to avoid conflicts.
Therefore, there is need for further research on modalities for achieving
such symmetry, especially with reforms in trade rules, especially re-
garding exploration and exploitation of natural/energy resources. The
foregoing examination leads to three key policy recommendations.
7.1. Climate-Conscious reforms in WTO law
A key deduction from the foregoing examination is that the en-
vironmental provisions of WTO rules are inadequate to incentivise ef-
fective climate mitigation consciousness by corporate structures in in-
ternational trade. The increasing debate and shifting notions regarding
the climate change responsibility of energy companies could portend a
positive trajectory for the inclusion of positive clauses in WTO rules,
obligating stakeholders and signatories within the WTO framework to
focus on mitigating the climate change implications of their corporate
activities. This can be possible if there are adequate reforms covering
these and other ancillary issues. Such positive reforms could present
sovereign states opportunities to legislate towards achieving climate
objectives without or with minimal contradictions or conflicts with
WTO rules.
7.2. Incorporating positive energy industry obligations in climate deals
It is apparent that multilateral climate change pacts such as the
United Nations regime and others lack direct or positive provisions
requiring serious mitigation actions by players within the energy in-
dustry. If at all a glimmer of hope resides within the general commit-
ments of state parties, as is problematic with international law, en-
forcement of such provisions is a recurrent issue. There are potentials in
preferential trade agreements (PTAs), bilateral and regional trade
agreements (RTAs). Replicating similar provisions in multilateral cli-
mate deals with wider coverage, in terms of signatories, may portend
potentials to incentivise more energy-related industry climate con-
sciousness and positive actions from the industry. As potent as this
option may seem, a lot relies on reforms of WTO rules to avoid conflicts.
7.3. Country-specific legislative reforms for climate objectives
Following reforms in WTO rules, sovereign states may be better
suited to promulgate legislative reforms with more industry-specific
positive provisions. Stringent regulation of the energy industry for
achieving climate goals may portend potential conflicts with WTO rules
and spur international investor-state disputes. Much as sovereignty
pundits may pontificate on the likely supremacy of sovereignty in the
milieu of such spats, the potential for conflict is an issue worth ad-
dressing. This underscores the need for symmetry between sovereignty,
international trade rules and climate objectives generally, and parti-
cularly in the energy industry, considering evolving energy law prin-
ciples.
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