The need to transition away from traditional, fossil fuel-related sources of energy has been a consistent theme of international law and practice since the 1992 adoption of theUnited Nations Framework Convention on Climate Change (UNFCCC). From that time onward, scientific evidence regarding the realities of climate change and associated impacts have only intensified the coalescence of many areas of law and policy regarding the need for responsive measures. Included in these measures, necessarily, is the need to shift away from high-emissions practices in the energy sector. As the levels of information regarding climate change and the need for legal and policy reforms to address them increased so too did international law responses, most notably in the terms of the 2015Paris Agreement on Climate Change (Paris Agreement) adopted as part of the UNFCCC system. At the supranational and national levels, many states have adopted measures seeking to transition away from emissions-intensive energy sources as part of their national laws and rules, and the European Union has adopted the Green Deal to achieve the same purpose across its Member States.
The parameters of the transition from high emissions sources of energy to renewable and green energy sources are nuanced and, at the same, often treated by law and policy as uniform undertakings. In itself, this can result in the development and implementation of inappropriately crafted legal regimes which fail to accommodate the nuances of the various and varied forms of renewable and green energy sources envisioned as the end result of energy transitions. Additionally, legal regimes – regardless of the level of jurisdiction – often focus on energy transitions as limited in scope and impact on the energy sector, particularly supply-side and demand side elements. From this perspective, issues of just transitions are unincluded or under-included in such legal regimes, resulting in the potential for unjust outcomes especially in the labour sector and in the context of communities to be negatively impacted by the closure of fossil fuel extraction and generation facilities. Issues of just transitions are often left out of legal and regulatory systems governing the infrastructural shifts necessary to accommodate the transition from traditional to new energy sources. Indeed, the infrastructural element of energy shifts is often not a piece of the legal or regulatory system designed at international, supranational, or national levels.
These issues represent the backdrop against which the international community has sought to address climate change as well as responses to the February 2022 invasion ofUkraine by the Russian Federation. Little more than three months after theUNFCCC Conference of the Parties 26 in Glasgow, Scotland, saw efforts by many in the international community to reaffirm post-Covid-19 pandemic commitments to net-zero emissions, if not carbon neutrality, by 2050, discussions surrounding energy sources lurched with the commencement of hostilities. As one of the first responses to the hostilities, many States and the European Union began to implement sanctions against the Russian Federation, its products, and those connected to the leadership of the State. Over a short period of time, these measures have come to include efforts to ban and decouple from Russian energy sources, primarily those in the oil and gas sectors, so as to deny a significant source of the regime’s revenue. While it is difficult to argue against the need for such actions in the face of hostilities and efforts of the Russian Federation to weaponize energy supply and access, there is a concomitant threat to existing and future efforts to shift away from fossil fuel sectors in favor of developing them to serve the needs of today without regard to the condition of tomorrow. Within this context, the need for a wide-ranging inclusion of just transitions in law, regulation, and practice is particularly great since efforts to reshape the energy sector will inevitably have short and long-term impacts across industry and society.
This blog piece will address the issues, and potential for achievement, in international and European Union responses to energy transitions that also involve just transitions in all impacted sectors. It will address climate-related responses as well as some of the most recent responses to the need to update energy policy to address the stresses and weaknesses resulting from the conflict in Ukraine. Given the role of the EU in entrenching just transitions among a diversity of Member States and in the face of multiple global crises, it forms an area of critical review in this post.
Emergence and Evolution of Just Transitions
Transitions in the energy sector are certainly not a new phenomenon. Indeed, the fossil fuel-based technology that the international community is currently seeking to phrase out and transition from was, itself, revolutionary and its adoption represented a significant shift in production and consumption options. At the time of these transitions, however, the economic, social, and environmental issues raised – to the extent they were raised at all – were quite limited in scope and the legal and regulatory response was similarly circumscribed.
When the first steps at transitioning away from the coal mining industry were attempted in the 1980s and 1990s in the United States, however, they were met with resistancefrom a number of quarters, including the labour sector. From this sector arose the rallying cry of just transitions as a way of attempting to ensure that the transitions from the coal sector were accomplished so as not to leave the miners or the communities dependent upon the mines behind. This initial concept, of a relatively limited scope of application and jurisdiction, then emerged as the concept of just transitions has emerged onto the global stage as a legal and political construct that, increasingly, is linked with ideas of climate change and responsiveness. Some iterations of just transitions that have emerged center on the limited application of the concept in the energy setting, including all aspects of the energy sector ranging from shifts in sources and technology for energy generation to ensure that the supply of new energy is appropriate to accommodate demands and sustainable for the future to, ultimately, the need to ensure that workers, their families and their communities are not unjustly harmed by the process of transitioning to new energy sources. In this view, the ways in which the labour efforts are to be addressed recognize that the type of jobs and job training may necessarily differ and so seek to provide for training and reskilling in order to ensure the adaptability of the workforce. Additionally, just transitions in the energy sector and beyond have become connected to larger societal and legal issues such as the impacts of sectoral transitions on women, children, vulnerable communities, and other groups that are impacted yet frequently discussed in the margins if at all.
It should be noted that just transitions as a concept have evolved from the energy, particularly labour, sector to be more widely adopted in the context of any industry or sector experiencing or planning for transitions. These transitions may be, and indeed often are, connected to environmental and climate change concerns. Beyond this, they may be the result of a number of pressures and drivers, most recently the Covid-19 pandemic and post-pandemic responses as well as the need to respond to sanctions imposed against the Russian Federation, its products, and services in many jurisdictions from February 2022 onward. Included in the many sectors in which just transitions as a concept offers a current and potential future benefit is the infrastructural development sector and specifically at the nexus of infrastructure and energy transitions.
Just Transitions in Energy Law and Regulation
As noted above, the UNFCCC system, particularly the 2015 Paris Agreement, has adopted the need for the inclusion of just transitions as a matter of law and policy for addressing climate change as well as climate impacts. In terms of non-binding international norms that have resulted in the development of binding national laws and rules on just transitions and energy laws and policies, theSustainable Development Goals (SDGs) have served a significant role. Adopted by the United Nations General Assembly in 2015 as the successors to the 2000Millennium Development Goals, the SDGs are comprised of 17 main goals supported by 169 associated targets and several hundred indicators to gauge success. Critically for the concept of just transitions, the SDGs represent a series of goals that holistically address many aspects of transitions in the energy sector and associated impacts. These range from reducing poverty rates (SDG 1) to the inclusion of lifelong learning in educational practices (SDG 4) to efforts that “promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all” (SDG 8) to the encouragement of entrenching renewable energy sources (SDG 7). Additionally, the trio of SDG 13, SDG 14, and SDG 15 form the core environmental policy provisions and focus on addressing and mitigating climate change as well as protecting land-based and maritime natural resources. As the Voluntary National Review system for State compliance reporting and review has demonstrated, efforts at achieving the SDGs in these sectors have included those which support just transitions in energy law and regulation among States across geographic and development statuses.
Moving from the international to supranational and national settings finds just transitions incorporated across a variety of energy law and regulatory frameworks. Perhaps the most active entity in this regard is the European Union (EU) acting as a supranational organization with authority over its 27 Member States. Given that the origins of the EU are rooted in thepost-World War II creation of the European Coal and Steel Community, it is, arguably, quite appropriate that the EU serves as a major source of advancement in the field of energy transitions. Over time, the EU has adopted legal and regulatory frameworks enshrining the rights and protections of workers and the need for environmental protection as well as climate change response.
In an effort to combine these and many other areas of concern into a cohesive policy for addressing climate change and assisting the Member States in meeting their collective and individual commitments to reduce carbon emissions as part of the Paris Agreement,the EU adopted the Green Deal in the latter months of 2019. Included in many of these Paris Agreement commitments at the EU Member State levels were commitments to net neutrality, if not fully to carbon negativity, by 2030. To accomplish the goals and targets it contains, the Green Deal was made applicable across all aspects of the economy and environmental concerns throughout the EU. In this context, much attention has been and continues to be paid to the renewable energy sector as well as links to reductions in energy poverty across all levels of society. Additionally, the Green Deal has come to include policies and recommendations regarding transportation sector activities, sustainability in building operations and in renovations, and supply chain issues. These, collectively and at a sectoral level, directly involve the construction and development of infrastructural capacities that require shifts to accommodate environmentally progressive standards. This is true in the renewable energy sector and in the other highlighted sectors, which are bridged by efforts to promote and govern climate financing and green financing and investment systems.
At the same time, the Green Deal explicitly endorses and seeks to support just transitions as a critical element in ensuring the equitable shift to climate change responsive measures as a matter of law, regulation, and economic policy throughout the EU. These efforts are largely implemented under the auspices of theJust Transition Mechanism and theJust Transition Fund. These entities represent two forms of novel funding efforts through which the EU plans to support the regions that are most dependent on coal and other high emissions industries, notably in the energy sector, as they transition to other economic bases and sources of energy supply. In creating the Just Transitions Fund, the European Commission specified that, at a general level, just transitions “must be locally driven, include targeted welfare and labour policies, be included in a long-term strategy for the decarbonisation and development of local economies, and allow for regular assessments and modifications.” Further, reporting on current and future national climate action laws and policies that include just transitions and energy poverty prevention have resulted in the creation of many national laws and regulatory systems that have enshrined concepts of just transitions in novel ways. As a further step,the EU adopted the Climate Law in 2021. Based on the timing, there is no doubt that the Climate Law was significantly impacted by the pandemic yet still maintained a focus on combatting the climate crisis as a first priority. An essential element of the policy underlying the Climate Law is that “[i]n light of the importance of energy production and consumption for the level of greenhouse gas emissions, it is essential to ensure a transition to a safe, sustainable, affordable and secure energy system relying on the deployment of renewables, a well-functioning internal energy market and the improvement of energy efficiency while reducing energy poverty.”
It is perhaps obvious to state that the Covid-19 pandemic caused the Green Deal, and the legal and regulatory frameworks contained in it, to drastically shift short-term focus. However, unlike many other laws and policies, the direct connections between climate change impacts, biodiversity loss, and public health crises such as the pandemic strengthened the ability and attractiveness of implementing the Green Deal despite pressures from Covid-19 on the EU Member States. In responding to the enduring pressures from the Covid-19 pandemic, on 12 February 2021, the EU adoptedRegulation 2021/241 which established the Recovery and Resilience Facility (RRF). Facially, the RRF is focused on the economic and social impacts of the pandemic in the short-term and the long-term. However, in creating the RRF, the EU Parliament made it clear that the intention was to include climate issues and energy transitions, stressing that “[t]he green transition should be supported by reforms and investments in green technologies and capacities, including in biodiversity, energy efficiency, building renovation, and the circular economy, while contributing to the Union’s climate targets, fostering sustainable growth, creating jobs and preserving energy security.” This focus on including labour concerns and related issues for just transitions runs throughout the RRF’s parameters, which explicitly link the RRF’s functions with the Green Deal as well as the EU and Member State commitments to significantly reduce emissions undertaken in the Paris Agreement context.
Against the climate change and pandemic response backgrounds in the EU, the February 2021 invasion of Ukraine by the Russian Federation caused disruptions and threats of disruptions to a global, regional and national concept of stable energy law and supply that would support the transition to new forms of renewable and green energy sources. As the conflict in Ukraine has evolved over the past several months so too has the understanding of the impacts of economic sanctions and threats of retaliation on energy supply. This is certainly an international issue, however, given its dependence on Russian oil and gas as well as its stance as a leading voice against the invasion, the EU and the Member States have been notably responsive. Additionally, there have been concerns that short-term efforts to mitigate the impacts of oil and gas shortages in the EU could further entrench traditional fossil fuel sources, notably coal, and potentially undermine progress toward energy transition and the ability to meet climate ambition required under the Paris Agreement.
In mid-May 2021, the European Commission formally responded to these concerns by issuing the EU external energy engagement in changing world communication. In this communication,which links to the REPowerEU Plan, the EU’s external energy policy is specifically geared to:
strengthen its energy security, resilience, and open strategic autonomy by diversifying the EU’s energy supply and boosting energy savings and efficiency; accelerate the global green and just energy transition to ensure sustainable, secure, and affordable energy for the EU and the world; support Ukraine and other countries that are directly or indirectly affected by the Russian aggression; build long-lasting international partnerships and promote the EU clean energy industries across the globe.
Areas of specific focus for the EU’s energy policy moving forward include an increase in efforts to diversify the types of energy use in the EU as well as the sources of energy, with the overarching goal of meeting green transition targets in the energy sector while rapidly decoupling from Russian oil and gas. Efforts for diversification of energy sources involved not only building on existing trade agreements and related arrangements as well as the generation of new trading agreements and partnerships. In itself, this type of transition can result in questions regarding the incorporation of just transitions within the EU and within the energy source States. These efforts to diversify energy type and sourcing necessarily involve the development of new or expanded infrastructural capacities – for example, pipelines – in the EU and the source States.
Discussions of diversifying energy types and sources in the communication and Plan focus on efforts to assist Ukraine in rebuilding and recovering from the short, medium, and long-term impacts of the Russian invasion. This is critical for the financial viability of Ukraine and also highlights the ways in which concepts of just transitions can be implicitly observed in post-conflict planning. The EU’s efforts to ensure the inclusion of Ukraine and its reconstruction within its external energy plans offer a significant opportunity for just transitions if appropriately implemented. Should just transition links fail to be realised in this context, however, a major opportunity will be missed and, more critically, the ability of a post-conflict society to emerge and respond to the internal and external economic, societal and environmental challenges it faces will be questionable. As the European Commission has observed, “in the context of slow recovery, economic turbulence and the global consequences of Russian aggression against Ukraine, the social aspects of reshaping the energy systems must be central to the transition.” To accomplish these goals, the current proposal is to amend the RRF to include a new chapter reflecting the REPowerEU terms and concerns, thus further connecting green transitions to EU methods of crisis response.
Critical Lessons for the Future of Just Transitions
Just transitions have emerged from a policy concept grounded in the coal industry and envisioned for the protection of communities in the United States to become a legal and regulatory element of international law, supranational law, and national laws. This journey has been and continues to be, one necessitating expansion of the potential applications and boundaries of just transitions itself. While still very much used in the transition from coal mining, just transitions are now a concept that has been extended across all fossil fuel transition efforts ranging from extraction to usage. In this way, just transitions can be seen as essential to defining the contours of law and regulation surrounding energy transitions. Included in this sphere are, necessarily, elements of transitions in the infrastructural capacities necessary to accomplish energy shifts.
Just transitions have become an increasingly vital element of climate change-related law and regulatory responses to the pressures brought about by the climate crisis. Indeed, as various forms of climate responses have been adopted at the international level as well as at the EU and Member State levels, just transitions have assumed a greater and more varied role in ensuring that environmental responses do not cause societal harm.
Beyond energy and climate per se, just transitions have the ability to serve as a method of mitigating the impacts of changes across sectors and geographies. This is particularly true in the face of emergencies – be they slow onset or rapid onset – in which there is the need to respond for the short-term and the long-term. Since 2020, the global community has experienced two massive crises in the form of the Covid-19 pandemic and the 2021 invasion of Ukraine by the Russian Federation. Independently, these crises have significantly impacted the world and have necessitated legal responses to ensure that the resultant harms are mitigated to the extent possible. Using the EU as an example, this post has noted the ways in which just transitions have been incorporated as core elements to responses in the varied contexts of a public health crisis and a military crisis. And, of course, just transitions have formed the core of responses to the slow onset crisis of climate change.
Since the energy sector has experienced direct and distinct impacts as a result of each of these crises, it is essential that the future of energy transitions be built on robust concepts of just transitions regardless of the jurisdiction. These transitions must also be understood to include infrastructural elements that are necessary for the accomplishment of energy extraction and supply yet often left out of the discussion regarding new energy types and sources. To ignore the essential nexus between just transitions, energy transitions, and infrastructural transitions would be to ensure that the future of energy law and regulation is constrained by past injustices that give rise to future inequalities.
About the Author
Dr. Alexandra Harrington is a Lecturer in Law (Environment), Lancaster University Law School, England.
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Preferred Method of Citation
Alexandra Harrington, “Ensuring Just Transitions in the Switch to New Energy Sources and Associated Infrastructure in Times of Crisis” (IJPIEL, 8 June 2022).
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