Journal of World Energy Law and Business, 2022, 00, 1–6

https://doi.org/10.1093/jwelb/jwac012
Article

Downloaded from https://academic.oup.com/jwelb/advance-article/doi/10.1093/jwelb/jwac012/6581841 by Vietnam Petroleum Institute user on 18 May 2022

Energy law in crisis: an energy justice
revolution needed
Raphael J. Heffron *

A BS TR A C T
Energy research has been growing in a holistic way whereby researchers are connecting their
research to the bigger picture of an ‘energy system’. Energy law scholarship has lacked this direction
and traditionally has focused too narrowly on specific topics such as electricity markets or extraction.
A major limitation has permeated through scholarship in the area and relatively no connection is
made to the energy system. Energy law scholarship did not for example, state where the energy
system can improve and deliver a just outcome. The lack of identifying such a connection has
permitted energy law scholars to fall under the radar and continue to work on issues that in essence
support the continued development of traditional energy sources, ie, fossil fuels. Only a minority of
researchers have shifted their focus in a real and impactful way to ensuring energy law delivers just
outcomes for society. Energy justice scholarship has allowed scholars to do that. It has emerged as a
major interdisciplinary energy research topic yet there remain remarkably few energy law scholars
interacting with it. Many scholars remain reluctant to read beyond traditional research in energy
law not to mention engage in interdisciplinary energy journals which increasingly publish legal
scholarship. This article calls for the further development of the modern energy law scholar.
For such scholars to exist, there needs to be a revolution in energy law scholarship to ensure law
contributes to the ongoing global climate emergency.

1. INTRODUCTION
It is with honour that I have been the Guest Editor for this Special Issue on Energy Justice with the leading
energy law and policy journal in the world.1 In thinking of energy justice research, it is important to realize
the growth in scholarship around the area which is significant. For me, it is incredibly exciting to see! There
is widespread adoption across all disciplines of the energy justice concept. Of huge importance is that finally
there is a common goal within the energy sector, a realization that the energy sector has to produce just out-
comes for society.

* Raphael J. Heffron, Faculty of Law, University of West Indies St Augustine, Trinidad & Tobago; Universite de Pau et des Pays de l’Adour,
E2S UPPA, CNRS, TREE, Pau, France. Email: raphael.heffron@sta.uwi.edu

The views and opinions expressed here reflect the author’s own, and not those of affiliated universities and/or the other contributors to this
Special Issue.
1 Alongside perhaps the IBA Journal of Energy and Natural Resources Law, however, the impact factor for the Journal of World Energy Law &
Business is higher.

C The Author(s) 2022. Published by Oxford University Press on behalf of the AIPN. All rights reserved.
V

 1
2  Raphael J. Heffron • Energy Law in Crisis

With the production of this Special Issue, there is recognition for this topic in energy law research which
is well accepted by interdisciplinary energy scholars as evidenced by special issues in multiple journals such as

Downloaded from https://academic.oup.com/jwelb/advance-article/doi/10.1093/jwelb/jwac012/6581841 by Vietnam Petroleum Institute user on 18 May 2022

Nature Energy, Energy Policy, Applied Energy and forthcoming in Renewable and Sustainable Energy
Reviews. I have been writing on energy justice for many years now2 and I feel there is a lack of literature
exploring energy justice as a concept in research and its potential value in practice. I see two roles for energy
justice: first there is the role within research itself in setting a theoretical (and even methodological) frame-
work; and second, there is its implementation and use in practice. This special issue targets the second of
those and explores applied energy justice research. Hence, there are articles covering a range of topics and
regions of the world.
This article itself focuses on assessing energy law scholarship to date and giving a brief overview of where
it is today in terms of energy justice. There is specific coverage then of articles that have been published in
some of the leading energy law journals over the last decade. Rather than discuss individual papers, the aim is
to summarize these articles and their contents in the context of energy law and energy justice. The article
aims to highlight some fundamental weaknesses of energy law as a discipline and asserts why energy law
needs a revolution. The reason why is that energy law has to play its role in the climate emergency and there-
fore needs to change. Energy justice is at the heart of this and should play the lead role in revolutionizing en-
ergy law.

2. ENERGY LAW SCHOLARSHIP TO DATE: A REVOLUTION IS NEEDED

Scholars, educators and practitioners
Given that the energy sector is the key contributor to greenhouse gases (GHGs) and therefore carbon diox-
ide emissions, it should have been a duty of energy law to ensure change in terms of environmental impacts.
Instead, the energy law community has not or has been very slow to recognize that change was needed in its
scholarship. Therefore, it is logical to assert that energy law scholarship has delivered insufficiently to the cur-
rent predicament of the world to date on mitigating against climate change.
The revolution called for here focuses on energy law scholarship rather than legal practice; however, there
will be an impact upon practice in the medium to longer term. After all, it is scholars and educators that can
affect change in practice. Further, energy law practitioners have their own needs to change such as will be
identified later in terms of ethics, the rule of law and negligence. Nevertheless, it is interesting to witness
many firms who now have ‘Energy’ teams, with ‘Oil and Gas’ teams and divisions having been abandoned in
name.
To return to energy law scholars, perhaps, too many and still the majority have focused on the develop-
ment of energy resources so as to see an economic gain for a company and/or state. Little attention was paid
to ensuring just outcomes in that development. Hence, as societies, we continue to still develop energy
resources which have caused the well-documented United Nations (UN) stated ‘climate emergency’. And en-
ergy law as a discipline has not moved on to where it should be.

The majority of energy law scholarship is a relic

The classic examples of energy law scholarship abound such as a focus on energy extraction, investment and
taxation. Many energy law educators remain committed to the past. There are several educational institutions

2 For publications which best express my views see: (1) RJ Heffron, The Challenge for Energy Justice: Correcting Human Rights Abuses.
Springer 2021); (2) RJ Heffron and others, ‘A Treatise for Energy Law’ (2018) 11(1) J World Energy Law & Bus 34–48; (3) RJ Heffron
and D McCauley, ‘The Concept of Energy Justice Across the Disciplines’ (2017) 105 Energy Policy 658–67; (4) RJ Heffron and K Talus,
‘The Evolution of Energy Law and Energy Jurisprudence: Insights for Energy Analysts and Researchers’ (2016) 19 Energy Res Social Sci
1–10; RJ Heffron, D McCauley and BK Sovacool, ‘Resolving Society’s Energy Trilemma through the Energy Justice Metric’ (2015) 87
Energy Policy 168–76; and RJ Heffron and D McCauley, ‘Achieving Sustainable Supply Chains through Energy Justice’ (2014) 123 Appl
Energy 435–37.
 Raphael J. Heffron • Energy Law in Crisis  3

and centres on energy law globally where curricula remain rooted in the past with a focus solely on develop-
ing fossil fuel resources. Interdisciplinary scholarship highlights the environmental damage and climate

Downloaded from https://academic.oup.com/jwelb/advance-article/doi/10.1093/jwelb/jwac012/6581841 by Vietnam Petroleum Institute user on 18 May 2022

change impacts of such energy development. Yet, there is and still remains a view that energy resources will
bring untold riches; and this is despite interdisciplinary scholarship demonstrating what is referred to as the
Dutch disease which in essence states this does not happen. In relation to this Dutch disease, part of the rea-
son for the malfunctioning of economies who have energy resources is the energy debt placed on emerging
economies to enable energy development; this article does not go into this topic but it is clear that this is an
issue and would make an interesting PhD project.
Indeed, there is sadly a significant amount of energy law scholarship that is simply outdated. There are
several major reasons why this is so, from outdated modes of scholarship, lack of consideration of the current
UN agenda and a failure to engage with climate science. One of the reasons in more detail is that energy law
scholarship often bypasses any interdisciplinary energy literature or indeed any energy law scholarship that is
not published within a legal literature database; some even ignore these legal databases altogether. Without
specifying any such literature, an examination of energy law literature published in 2021 would reveal that the
majority (greater than 50 per cent) of authors struggled to engage at all with any relevant literature outside
of searching legal journal databases. In essence, they have missed the direction of where energy law scholar-
ship is going which is to include reference to interdisciplinary scholarship and also, legal articles published in
interdisciplinary journals (and this is not to mention some authors do not even demonstrate they have read
the key energy law journals).
One example of this is a recent text entitled ‘Energy justice and energy law’.3 The text should be com-
mended for aiming to address the issue of energy justice scholarship within energy law scholarship. However,
this hides the weaknesses of the text overall which exemplifies the problem with energy law scholarship and
why a revolution is needed. A cursory glance at the majority of the chapters in this text reveals that they do
not engage with energy justice scholarship at all (a word search reveals that ‘energy justice’ and ‘justice’ are
not present to a great extent at all in many of the chapters). Even the introductory chapter has few references
to the actual published energy justice scholarship.
The one central chapter that does and which is a highlight of the book is chapter two.4 This chapter
engages in energy justice scholarship but demonstrates what is referred to as sour grapes when the author
states energy justice is marked by ‘academic hyper-activity and hyper-innovation’.5 Now this the same said au-
thor who can be well documented in publishing on a variety of energy law topics with this IBA book series
on a continuous hyperactive basis which has a closed and non-transparent invitation process. While criticizing
energy justice scholars for over-publishing, this author has engaged in over publishing on energy law research
with colleagues for years while failing to tackle the ‘justice’ issue in the energy sector.
Indeed, the call within that chapter (chapter two) is that energy justice has to wait and will only develop
over time. Then there is the rather incongruous comment to state it is in its infancy compared to environ-
mental and climate justice—a straw-man argument, there is no purpose to it, no one has denied this and that
should not detract from it. Missing from the debate is the ‘urgent’ need for the energy sector to correct itself
and this is what energy justice can accomplish and hence its value. Further, the explosion of literature in the
area is because of the active engagement in the topic by other disciplines and not because of lawyerly scholar-
ship in the area.

Energy law lacks focus on the energy system and interdisciplinary research
That lack of dealing with justice has and continues to be common in much energy law research. It is a prob-
lem. Many energy law researchers do not have a normative view of how they want the energy sector to be

3 I del Guayo and others (eds), Energy Justice and Energy Law (OUP 2020).
4 A McHarg, ‘Energy Justice: Understanding the “Ethical Turn” in Energy Law and Policy’ in I del Guayo and others (eds) (n 3).
5 McHarg (n 4).
4  Raphael J. Heffron • Energy Law in Crisis

and/or to develop. Indeed, I have asked many energy law scholars, and they have struggled to present a co-
herent view on how the energy sector should operate from a legal perspective. Too many remain in essence

Downloaded from https://academic.oup.com/jwelb/advance-article/doi/10.1093/jwelb/jwac012/6581841 by Vietnam Petroleum Institute user on 18 May 2022

‘economic focused’. They think of revenue growth and profits for operators (of different types).
A quick search on many databases beyond the legal ones will demonstrate that the majority of researchers
on energy justice are not energy law academics. It should be a boom time for energy law scholars to have
their work read by researchers outside their discipline but instead this potential has not been recognized.
Energy law scholars remain committed to the past and this mirrors the lack of updating of many energy law
curricula at universities which are outdated to the modern demands of the energy sector, to energy scholar-
ship and to delivering just societal outcomes.

3. ARE ENERGY LAW SCHOLARS PART OF THE CLIMATE CHANGE PROBLEM?

Yes—energy law articles lack the normative approach of the author
There are many causes of climate change, and certainly, the energy sector is well documented as a key one.
Therefore, it is logical that that law has to some degree a role of responsibility within the climate change
problem. Energy law scholars naturally have to question their role and whether they can improve their re-
sponse to this issue. A central problem as has been touched on earlier is based around philosophy or jurispru-
dence of energy law. Today, society knows what type of energy sector it wants, ie, a low-carbon one.
Consequently, law, legal practice and scholarship should aim for such.
A vast majority of energy law research nevertheless fails to identify what type of energy sector the research
and practitioner writers want. There is no advancing of such a normative discussion around the trajectory of
the energy sector. In many articles, the discussion drifts to a narrow discussion of the law and how it can be
improved or modified but in reality, with little reasoning as to why. Most of the limited ‘why’ arguments are
positioned around increasing energy development, project revenue and vast so-called apparent contributions
to economic growth. The relationship with the future societal need to have a low-carbon economy is massive-
ly under-mentioned and under-explored.
Whereas criminal and family law scholars have a ‘raison d’etre’ of why they want the system to be the way
it should be, energy lawyers repeatedly have failed to identify what energy system they want. This is clear in
books and research articles. The legacy of such thinking continues and there remains an enormous amount
of research by energy law scholars in the area that still focuses on the energy sector as if issues such as climate
change do not exist. Many legal scholars indeed refuse to acknowledge the need to engage with other disci-
plines and make a normative evaluation of how the energy systems should be. It is time for a revolution in
thinking.

Yes—energy law articles lack the mention of whether the article is conceptual, comparative, data-driven
etc., and there are too many opinions
Energy law research needs to align with other research from across the disciplines in exploring the energy sys-
tem. It needs to be clear what type of method is employed in the research. Often the legal research commu-
nity does not specify a research method even though a range of methods has been utilized. The article needs
to identify as being: conceptual, comparative, doctrinal, case law and/or socio-legal (where it is in-part or
fully interdisciplinary). A lack of method (and more so if associated with a lack of theory) ensures that the
article comes across as an opinion-piece; which many energy law articles are.
Too often energy law articles are expressing the opinion of the author which is fine but these should not
be classed as research articles or peer-reviewed research articles. A lack of method and/or theory means that
it is the reader who has to identify the research contribution of the article. This is a major problem where an
author makes a claim yet there is little veracity due to a lack of citing previous research on theory and meth-
ods that have utilized the same approach in the past.
 Raphael J. Heffron • Energy Law in Crisis  5

Recently, I have seen claims by an author suggesting that an energy trilemma type of view on the energy
sector could be a solution to the energy crisis today in 2022. This is not novel and has been an expressed

Downloaded from https://academic.oup.com/jwelb/advance-article/doi/10.1093/jwelb/jwac012/6581841 by Vietnam Petroleum Institute user on 18 May 2022

view in practice and research for nearly a decade—all of the previous literature has been missed by the au-
thor. The author is entitled to their opinion but the article should be classified as such and not as a research
article in energy law as it lacks any ‘positioning’ in the area of energy law scholarship.

Energy law scholars assisting energy economists or engineers and not leading with just outcomes
In terms of energy law scholarship, too much of it seems to be aiding other areas of energy scholarship. For
example, assisting energy economics and/or engineering scholarship, with a focus on health and safety or fi-
nance and taxation legislation. The energy law community should have been more focused on achieving just
outcomes in society and therefore trying to lead energy scholars of all disciplines to this ‘promised land’.
Instead, energy law scholars have propagated an unhealthy ethical dilemma, where legal scholars enable un-
just societal outcomes in the energy sector.
Around the world, civil law cases are decided on the balance of probabilities and/or majority view
which is less stringent than criminal law. But if society is to address climate change, a question has to
be asked as to whether the legal community are making sufficient enough effort and on the balance of proba-
bilities one would have to say ‘no’. A cursory glance at some of the leading international energy journals
(such as Nature Energy, Applied Energy, Energy Policy and Energy Research & Social Science) demonstrates
that there is significant research on energy justice and the energy law community is under-represented in this
research area.
Further, there remain too many articles and books been published on extraction and growth of oil and
gas. These books can exist of course but these texts remain lacking in their treatment of environmental
impacts, climate change mitigation strategies, carbon taxation and also the contribution to the society’s just
transition to a low-carbon economy. The next generation of energy law scholars need knowledge in these
areas and not to incorporate it into textbooks and therefore teaching is a dereliction of duty on the balance
of probabilities. Further, it points towards the legal community as being part of the lack of effective change in
realizing global, national and local energy and climate ambitions.
Not having a focus on justice points inherently towards a clear ethical gap in energy law research. Indeed,
one should question whether such research as is happening respects the ‘Rule of Law’. Too many scholars
continue to be outdated in this regard and continue to publish on extraction and growth of oil and gas not
on the energy transition and transformation of the energy sector. On the balance of probabilities in a civil law
case, the energy law community is working sufficiently to contribute to change and is being negligent, and
therefore also liable for damages. Hence, the need to revolutionize energy law scholarship.

4. CONCLUSION
For too long justice has not been at the core of the energy sector and now it appears some progress has been
made; however, as this article states the energy law community is lagging behind the rest of the energy schol-
arship community. Indeed, the words of the Noble Prize-winning Irish poet Seamus Heaney,6 are inspiring in
this regard and he stated:

History says Don’t hope on this side of the grave. But then, once in a lifetime the longed-for tidal wave
of justice can rise up, and hope and history rhyme.

That is my message for energy law scholars today and those of tomorrow. The UN through its work on
the 2015 Paris Agreement, the UN Sustainable Development Goals (UN SDGs) and its 2020 climate

6 S Heaney, The Cure at Troy: Sophocles’ Philoctetes (Faber & Faber 2018 (Original 1990)).
6  Raphael J. Heffron • Energy Law in Crisis

emergency declaration provide the most compelling platform for highlighting the need for action. Law as a
discipline has to play its role. In judging itself law has to declare that on the balance of probabilities it has not

Downloaded from https://academic.oup.com/jwelb/advance-article/doi/10.1093/jwelb/jwac012/6581841 by Vietnam Petroleum Institute user on 18 May 2022

performed its role in limiting the pollution that is causing climate change. Given the climate emergency, there
is no time for waiting for some type of evolution of the discipline, a revolution of the discipline is needed.
Energy law and associated areas of commercial, civil and criminal law all need revision in this context.
More needs to be demanded of the energy law scholars who in their majority show little desire to ensure
just outcomes are delivered in the energy sector. Indeed, much of the scholarship shows little evidence of
building or engaging in key energy justice literature to date. Many remain in an outdated mode of thinking
that does not connect to the reality of modern scholarship or the energy system required for the survival of
planet Earth. All energy law needs to support just outcomes within society. Law that continues to enable pol-
lution that causes climate change needs to be phased out. For scholarship in this area there needs to be a dra-
matic revolution that sees new ideas, research and vision that ensures law plays its role in showing how
society responds to the global crisis of the climate emergency.
Let us begin this time.