Journal of Energy & Natural Resources Law (JERL)

Faced with the triple planetary crises of climate change, pollution and biodiversity loss, states are increasingly taking regulatory action, especially in the natural resources and energy sectors, to address these pressing environmental problems. This regulatory action can impact financially on investments in the host state. In response, investors are resorting to investor–state dispute settlement (ISDS) clauses in investment treaties between states, claiming compensation for the financial impact of the regulatory action. This increase of ISDS claims is controversial. Amongst other criticisms, the bringing of ISDS claims, or even the threat of ISDS claims, has a chilling effect on states taking needed regulatory action to address pressing environmental problems. There have been calls for reform of the ISDS system, including its application to environmental regulation. This article maps the nature, history and evolution of ISDS claims in natural resources, energy and other environmental cases and the controversies these ISDS claims have attracted. The article canvasses the calls for reform of the ISDS system.

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This article argues that there is a large gap between the aspirations of international water law and the management of transboundary rivers and lakes necessary to address the existential challenges that have arisen in the twenty-first century. In addition to this gap in practice, these include climate destruction, the holistic view of river basins which includes environmental values and social justice, a more sceptical view of large dams and diversions, and the collapse of the post-World War II idea of a global community of shared values. Thus, international water law requires a transformative change to meet these challenges. New treaties and conventions are not needed. Instead, we need to move beyond traditional international water law. We call for innovation in three main areas: (1) the prevailing approach to this area of international law should be reconceptualised to more fully embrace global issues in ways that enhance community-building approach broadly anchored in the UN Sustainable Development Goals (SDGs); (2) the normative legal framework, especially procedural obligations, needs to be enhanced, in part through a more invigorated rule of due diligence; and (3) the current regulatory silos that apply to water law need to be better integrated across the layers of international/national law to better represent and to protect the communities of the watershed across the basin.

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Over the course of the past decade, critical and strategic minerals lists have soared in popularity globally. Though nomenclature may range from critical minerals to critical raw materials, the core understanding is generally one informed by critical functionality – often linked to the energy or digital transition or to military purposes – and economic scarcity, which renders it vulnerable to supply chain disruptions. This paper develops a compendium of core critical and strategic minerals with global importance by comparing the critical and strategic minerals lists of ten jurisdictions (Australia, Canada, China, the European Union, India, Japan, the Republic of Korea, South Africa, the United Kingdom, and the United States) and collating a single list on the basis of clear majority representation.

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The energy transition necessitates hydrogen generation to meet current energy needs. Low-carbon hydrogen (green hydrogen from renewable energy, and blue hydrogen from gas with CO2 removal and storage) is touted as a replacement, with most authors recognising the ‘green’ credentials of hydrogen. However, this paper examines the impact of hydrogen generation on water resources in the driest inhabited country on Earth – Australia. After analysing water use, the paper then undertakes a detailed analysis of the Australian Certificate of Origin Scheme. The paper concludes that competition over water will need to be considered in both project approvals and certification schemes.

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Energy transition is a national agenda, prioritised in many countries, to ensure public safety and achieve climate goals. Although enacting laws is a critical means of realising energy transition policy, legal scholarship has paid little to no attention to the role of law in a sustainable energy transition. Countries are currently experimenting with their legal frameworks to achieve sustainable and smooth energy transition policies that are most beneficial. The pivotal role of law in energy transition has led researchers to place a growing emphasis on introducing and analysing the recently enacted domestic laws in various countries, seeking implications and insights in this regard. This study draws on the example of Korea’s legal framework for energy transition to argue that the voluntary nature of this agreement between the government and operator would have policy implications for many countries striving towards sustainable energy transitions. Unlike numerous other countries (eg Germany) that unilaterally force early closure of nuclear power plants by law, Korea tries to innovatively establish legal grounds that enable a voluntary agreement between the government and operators and the considerable efforts on just transition, while the government commits to contributex to bearing the costs of energy transition.

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The global energy sector’s transition to renewable energy sources and sustainable decarbonisation has gained significant momentum in recent years as both industry and governments strive to achieve ambitious net-zero targets. Overestimating the pace of the energy transition, however, could pose a serious threat to energy security. Achieving a sustainable energy transition, therefore, demands not only innovative technological advances but also a comprehensive understanding of the intricate challenges confronting clean energy initiatives and projects.

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The IBA’s Section on Energy, Environment, Natural Resources and Infrastructure Law is advised by the Academic Advisory Group (AAG), a group of leading academics from around the world. Every two years, the AAG publishes a book about a key topic of interest to the entire Section. This year’s book focuses on the legal issues involved with the clean energy transition. In response to the climate emergency, several countries, corporations and other actors worldwide have announced programmes aimed at reducing global emissions of greenhouse gases that contribute to climate change to net zero by the year 2060 or earlier. While the need for a clean energy transition is clear, incoherently designed transition programmes could produce complex environmental, social and governance risks, including legal liability and protracted disputes. At the same time, the growing rush for minerals needed to manufacture clean energy technologies raises fundamental questions.

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As the United States (US) works towards a transition to a clean energy economy to help mitigate climate change, state-level battles continue to serve as notable barriers to policy progress. Following the rise of New Federalism in the 1980s, US state legislatures have great power to shape the energy landscape, but not without the tangible and sizeable influence of other actors such as electric utilities, fossil fuel companies and clean energy advocacy organisations.

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