CCLS Energy Law Institute Review

0001, November 2019 CCLS Energy Law Institute Review https://www.qmul.ac.uk/ccls/research/energy/ Contents In this first issue. 3 Recurrent themes in a 40 year career in law in the energy sector. Professor James Dallas 4 Financing offshore oil and gas decommissioning in the United States and the United Kingdom. Rosemary E Hambright 8 Principle of Estoppel in the enforcement of small island developing states’ right to climate finance. Mohammad Hazrati and Frosina Antonovska 14 In conversation. Professor Loukas Mistelis and Sir David Steel 23 Financing energy efficiency: An assessment of the Portuguese energy efficiency national fund. Gustavo Rochette 27 For the public benefit: An evaluation of the landowner compensation regime application to fracking in England. Abeer Sharma 34 Energy forum review: Opportunities and challenges of nuclear energy. Juan Ignacio Aguirre and Sagal Farah 47 2 Contents In this first issue. Maria Taylor Energy Law Institite Welcome to the first edition of the CCLS Energy Law Institute We are delighted to include an interview by Professor Loukas Review. Mistelis, one of the founding members of the ELI, with retired High Court judge Sir David Steel and their discussion is wide The review provides our LLM students, alumni, academics, ranging and gives an insight to the evolution of energy law. members and supporters with the opportunity to publish articles on topics based around the research and activities A regular event for the Institute is the Energy Forum that meets of the Energy Law Institute. The Review will be published, three times a year to debate a major legal issue impacting the electronically, twice a year in autumn and summer. energy sector. Each year we hold an additional forum for our students, the “New Voices Forum” where the students select The Energy Law Institute is in its seventh year. Today our the topic and invite a panel to lead the discussion. Two of our curriculum, shaped by industry participants, is taught in LLM students wrote a review of their New Voices Forum on London and Paris and has attracted students from 61 different Nuclear Energy which we are pleased to include. countries and five continents. The Institute’s LLM is ranked in the top 10 LL.M. programs for Energy Law. Our students Our next edition will include papers discussed at our benefit from access to sponsorship opportunities, intern Conference in June 2020, which will be hosted by the Energy and mentoring programmes, lectures from leading industry Law Institute on the 2nd and 3rd June 2020 with the Queen practitioners and a Forum that promotes academically Mary UNIDROIT Institute of Transnational Commercial Law led discussion on current legal issues. We have received on Energy Transition and Legal Changes. The conference invaluable support from across the industry, which has will explore in depth legal aspects associated with energy enabled the Institute to grow and thrive. transition, with input from a wide range of disciplines to provide commercial and market informed discussion. It The Energy Law Institute Review seeks to build upon our promises to be a very interesting and lively event providing existing activities and to bring together in a single publication the opportunity to debate and share ideas on one of the most the work of our Institute’s community. Our purpose is to challenging periods of change in the energy markets. develop the Institute’s research output focusing on the live legal issues of the sector. We will also include the winner of the 2019 Lord Browne Essay prize and a review of our Annual Lecture sponsored by Clifford We are launching the Energy Law Review as CCLS approaches Chance Lecture that will be given by the President of COP26 its 40th anniversary in 2020. How fitting then that our first Claire Perry, on February 13th 2020. article, by Professor James Dallas, is a look back at his 40 year career in Energy Law, a period of enormous change and The emphasis of this first edition is on our students and challenge for the sector. alumni and we are very appreciative of all the hard work that they have undertaken. We would like to thank the mentors The challenges of the sector are reflected in the four articles who have guided the authors through the publication process, we have included by our alumni on decommissioning, and our two interns Sacha Dekeyser and Mariana Paul who energy transition, fracking and climate change. Each article contributed towards the peer review process. provides an interesting perspective. The financing of oil and gas decommissioning is examined through a comparison We are very grateful to all our members and Steering Group. between the different legal frameworks of the UK and USA. The support we receive from them is central to what we do Energy efficiency is examined from a Portuguese angle. and a partnership that is valued by the Institute and all our Climate Change is analysed through the principle of estoppel students. in the enforcement of Small Island Developing States’ right to climate finance. The focus of the paper on fracking is the compensation regime. 3 Editor’s introduction Recurrent themes in a 40 year career in law in the energy sector. Professor James Dallas, BA Jurisprudence (Oxon), MA Jurisprudence (Oxon), Solicitor Professor James Dallas In the forty years I have been practising As regards the law and my career in it, there are any number of themes I could have highlighted but for the purposes of this law I have witnessed profound changes article I have chosen, somewhat eclectically, three. The first socially, economically and in the legal is privatisation because it had such a significant effect on the UK, taking it out of the post-World War II doldrums (but not sphere, both in the United Kingdom without some adverse social consequences) and spawning an and globally. The most significant economic revolution far beyond the UK’s shores. The second is the rise in awareness of the damaging consequences of macroeconomic and social changes unchecked development, accompanied by a spiralling world I would highlight that have occurred population, most keenly expressed through the climate change movement, which is giving rise to unprecedented challenges during the period are the collapse of for public international law. Finally I would like to talk about communism and the breakup of the the rule of law, its enduring importance to civil society, and the threats to its integrity that have emerged over the period. USSR; the development of the worldwide So let me begin with privatisation. The privatisation programme web and the exponential growth in the undertaken by Margaret Thatcher’s UK government in the 1980s capacity of computers; the globalisation and 1990s had a lasting effect upon the economy in general and on the energy sector in particular. It was accompanied by of trade anchored in these technological the deregulation of the City’s financial institutions, paving the changes; and the economic changes way for enormous growth in the financial sector and placing the UK’s service sectors - principally banking, but also related prompted by economic liberalism, which sectors such as insurance, accounting and legal - in pole has given rise to unprecedented growth position to take advantage of the growing global market. in the East and the emergence of China as The 1970s had seen a period of economic stagnation. Globally a superpower. the Middle Eastern petro-economies, led by Saudi Arabia, had begun to flex their muscles following the humiliation of the Yom Kippur war of 1973 when Israel defeated the Arabs, led by Egypt and Syria. They set about revising the over-generous oil concessions granted in the 1920s and 1930s, which were then beginning to expire and, through concerted effort amongst the major producers of OPEC (the Organisation of the Petroleum Exporting Countries formed in 1960), pushed the oil price up 4 Recurrent themes in a 40 year career in law in the energy sector from US$3 per barrel to US$12. Oil prices were again put under The second theme I would like to focus on is climate change. pressure with the Iranian Revolution in 1979, which led to a The evolution of thinking in relation to the environmental second oil crisis to end the decade. All this had the effect of impact of energy generation and consumption over the period severely dampening the economies of the developed world has been marked. It will have as great an impact on the sector who were heavily reliant on oil to fuel their industries and, in the and our lives as did the discovery and exploitation of fossil fuels case of the US, the war effort in Vietnam. on previous generations in the twentieth century. As a consequence, both the US and the UK entered the 1980s At the time I left school in the early 1970s the environmental in recession with high unemployment and high inflation. In the debate was given greater prominence by the publication of a UK Margaret Thatcher began a programme of restructuring the polemical paper on the future of the planet and man’s place in economy, which was then dominated by large government- it: ‘A Blueprint for Survival’, written by Edward Goldsmith. It was owned, highly unionised businesses, many of which - judged published in a special edition of the Ecologist and was signed by today’s perspective - had no place in public ownership, by a number of leading scientists and environmental activists such as Rolls Royce and Amersham (a manufacturer of of the day, including Sir Julian Huxley and the ornithologist radiopharmaceutical products). The notion of breaking up Sir Peter Scott. Its thesis was that society needed radical these public sector corporations and introducing more effective reforming to coalesce around smaller decentralised human- management from the private sector took hold, alongside the scale communities: ‘If current trends are allowed to persist, notion of wider share ownership by the public.

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