Energy & International Transactions + Air Pollution & the Environment...

This week, we had the pleasure of hosting (virtually) two distinguished guest speakers in seminars organized as part of the (1) Energy & International Transactions, and (2) Air Pollution and Environment courses.

On Thursday, October 14, Brian H. Potts, Partner in the energy, mining, and environmental law group at Perkins Coie LLP spoke at the seminar for the Air Pollution class about the regulatory and compliance issues relating to permits issued under the Clean Air Act and the role of lawyers.

In the energy class on Tuesday, October 12, Prof. Kim Talus (Tulane Law) spoke about how and to what extent international energy investment law influences energy project developments in the EU's internal energy market.

So what are the broader learning objectives and outlook for both courses...

1. Energy & International Transactions

First, note that gaining legitimate access to sources of energy in their primary form e.g. oil, gas, sun, and wind often requires the creation of property rights, licenses, contracts, and permits, etc. Second, being able to finance and develop the projects necessary to deliver these energy resources in a socially and economically useful final form e.g. electricity and heat, is essential to maintain modern standards of living and economies. Third, these projects often take place in an international or transnational context, involving multinational corporations and service providers, host government institutions and communities, international organizations, wholesale markets, and bilateral arrangements. For instance, the recent developments regarded as 'the energy crunch in the EU' and international corporations investing in decarbonization technologies like renewables and hydrogen, etc., show how interconnected energy access and supply projects are. Thus, gaining a clear understanding of the applicable rules, laws, risks, and mitigation options are always going to be essential.

This course introduces students to property rights and legal issues, including the framework of contracts, concessions, and licenses that form the basis of energy access and supply in an international context. It draws on examples from natural gas, renewables, and electricity aspects to appreciate the relationship between multinationals and host governments, local communities, and project developers and financiers. Some of the relevant topics covered comprise the territorial (including maritime) jurisdiction of host governments which underpins the grant of licenses and concessions onshore and offshore; the potential for an extraterritorial application of the domestic laws of a multinational 'foreign' investor's country to transactions or projects in the host country; implications of a change of law and energy market reforms to existing and future contract negotiations or renegotiations; investment risk mitigation options under international law; sustainable development and local content issues etc. With regard to electricity markets, the class engages in the drafting and review of model Power Purchase Agreements (PPA) and Energy Purchase Agreements (EPA) used in the relevant international scenarios.

The main learning objectives are to support students in understanding and assessing-

1. energy development from a systems perspective- involving access to primary sources via licensing and contracts, then options and projects for commercialization and supply of energy to consumers.

2. the structure and institutions involved in the international and increasingly interconnected energy industry.

3. applicable laws, regulations, and policies governing and influencing international energy investments and commercialization options.

4. the drivers of energy transitions globally and how the trend impacts international energy projects and transactions.

5. sustainability issues arising from international energy investments and transactions, including local content, human rights, social license to operate, and host community impact assessment.

6. contractual provisions governing international energy projects.

7. the best practices and mechanisms for mitigating risks and resolving disputes arising from international energy transactions.

The main course reading materials are:

1. Owen L. Anderson et al. International Petroleum Law and Transactions, (the Rocky Mountain Mineral Law Foundation 4th Edition, 2020)

2. Tade Oyewunmi, Regulating Gas Supply to Power Markets: Transnational Approaches to Competitiveness and Security of Supply, (Wolters Kluwer International, 2018).

3. US Commercial Law Development Program (CLDP), Understanding Power Purchase Agreements, Second Edition, October 16, 2020.

4. International Renewable Energy Agency (IRENA), Global Landscape of Renewable Energy Finance, 2020

2. Regulating and Control of Air Pollution in the US

Air pollution prevention and regulation is an integral part of Environmental Law and essential to the health, safety, and well-being of society. Energy and industrial activities are critical aspects of the modern economy. Nevertheless, externalities from the energy, transportation, and industrial sectors contribute significantly to air pollution and environmental issues. Focusing primarily on these sectors, the course will survey the legal, policy, and regulatory approaches to prevention and cleaning up air pollution in the US context. First, the class considers the basic tenets of environmental law and regulation as a means for controlling air pollution. Second, it examines the key legal and regulatory programs relating to air pollution, especially as provided under the Clean Air Act (CAA). Third, the class will explore the major sources of air pollution, the innovative control technologies available, as well as the role of designated institutions such as the US Environmental Protection Agency, State, and local agencies in setting relevant standards and rules, facilitating policy objectives, and assessing the impact of adopted measures for air pollution control and regulation.

The main learning objectives are to support students in being able to-

1. Review environmental law and policy approaches to air pollution control in the US.

2. Understand the main sources, causes, and effects of air pollution.

3. Identify and examine the legal, policy, and regulatory framework for controlling air pollution in the US, including the applicable economic approaches to regulation.

4. Understand the role of federal, state, and local institutions in regulating air pollution in the US and discuss applicable technological and policy solutions.

5. Decipher the nexus between energy, economic and industrial developments (on one hand) and air pollution control (on the other hand).

6. Understand the measures being implemented for decoupling of industrial and economic growth from increasing pollution of the air.

The main course reading materials are

1. Robert L. Glicksman et al., Environmental Protection: Law and Policy (Aspen Casebook Series, 8th Edition, Wolters Kluwer, 2019)

2. Tade Oyewunmi et al., Decarbonisation and the Energy Industry: the role of law and regulation in low-carbon and transitional energy markets, (Hart Publishing, 2020)