Frédéric Gilles Sourgens, James McCulloch Chair in Energy Law & Faculty Director, Tulane Energy Law & Policy Center
The conceptual framework through which the Tulane Energy Law & Policy Center engages energy policy is by actively addressing the well-known “energy trilemma.” The energy trilemma posits that energy policy has three overarching goals. The first goal is to provide access to the most affordable energy to the largest number of people. The second is that energy supplied to consumers must be both reliable and resilient, i.e. the lights must come on when the system is faced with predictable events that might cause disruption issues (think how to generate energy at night when we rely on solar as a core part of our energy mix) and when the system is faced with rare, unpredictable events (e.g., a war shutting down the delivery of a significant volume of oil or natural gas to an end market that relies on it as a primary source of supply). The third goal in the energy trilemma is the environmental sustainability of the energy system as a whole – i.e., the environmental and social sustainability of all inputs and outputs that make up the energy system from resource extraction to the ultimate use of energy. By far, the largest environmental sustainability threat today, for example, is climate change.
The reason we speak of an energy trilemma is that it is impossible to maximize all three of these values at the same time. By the time we maximize two of the three, we are naturally giving up to some extent on the third. A similar trilemma arises when we want to do things well, fast, and cheap. Those three things do not easily go together. Fast and cheap typically means we cut corners somewhere so quality suffers, and so on. The same is true in evaluating and setting energy policies and strategies. Maximizing any value in the trilemma has resulting knock-on effects on the others. In each instance, we must balance the three values against each other to come to an satisfactory conclusion overall.
I would like to make three points. The first is that a certain kind of human rights framework can help us in guiding policy judgments in a trilemma situation. The second is that the International Court of Justice (‘ICJ’) has certainly recognized a right to a clean environment in the context of the ICJ’s recent advisory opinion on climate change (which I have discussed here previously on Tulane Energy Sparks!). The key point I would like to draw out in this post, however, is how the ICJ conceives of this right – this is important because it serves multiple different purposes. The third contribution – and the one that I allude to in the title – is that there could be a similar human right to energy itself, and this human right is, arguably, just as critical to humanity as the right to a clean environment. Thus, there is a need to balance these competing human rights, as the trilemma suggests. But, what a clear recognition of a human right to energy would clarify is that we must balance these competing rights in our policy choices so as to progressively realize both. That is, the balancing effort we make must bear in mind that tradeoffs are inevitable. To the extent possible, it must also bear in mind that such tradeoffs must be flexible enough as to not become a permanent sacrifice. We must maintain a path to achieve an acceptable realization of all values at some point in the knowable future even as we delay some to achieve others first. Policy responses to trilemmas in other words are dynamic and must respond to data to achieve optimally achievable outcomes over time. They cannot become ideological traps from which there is no escape.
The Human Rights Framework in Policymaking and Policy Evaluation
When we think of human rights as a guide to policymaking and policy evaluation, we might be forgiven to think first of human rights court cases. In those cases, litigants try to use human rights claims to achieve policy outcomes through the courts. The goal is to make policymakers aware of the fact that current policies in fact violate human rights and to order them to stop. Climate change has led to several such high-stakes cases. Yet, ultimately, this is not the principal manner in which human rights are helpful to policymaking. Such cases only favor one single value of the energy trilemma and provide somewhat greater definition. Almost by definition, however, they should not substitute the competing policy judgments of other branches of government in deciding how to implement the relevant rights in question.
Human rights – like all international law – also has another life. It is not just the stuff of arguments of international trial lawyers. It is also an important component of the toolkit of policymakers as they seek to find solution to pressing and systemic problems. Human rights here serve a different function. It does not provide information so much as it guides how a holistic process of decision-making should operate.
A key provision in this regard is the obligation in Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). In Article 2(1), States undertake “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
This provision has a lot of moving pieces. Still, it is actually helpful to policymakers, when taken apart, because it provides answers to the fundamental questions of ‘what’, ‘how’, ‘with whom’, ‘when’, and ‘why’. It provides ‘what’ policymakers should do: “take steps” – not “achieve results” but rather work towards a goal by engaging in policymaking with regard to realizing specific human rights outcomes like the realization of the right to a clean environment and the right to energy. It explains ‘how’ policymakers should do so – i.e., they should employ the maximum amount of available resources, no more no less. It outlines ‘with whom’ policymakers should do so – this is a cooperative task and not one that each policymaker has to engage in on their own. It answers the ‘when’ by providing that States must ‘take steps’ now even if the realization of the relevant right can happen realistically in the future (i.e., the steps have to be taken towards a realistic achievement of an outcome in the future). And it answers the ‘why’ – the point of the entire exercise is to secure all rights in the Covenant over time – it is to provide the capacity for a fully flourishing life to all people under the jurisdiction of a State by securing them the basic physical, economic, and cultural necessities they need to survive and flourish.
While the U.S has not ratified the ICESCR, the steps laid out in it should be considered instructive to policymakers in this country as well. That is, the point is not that a State is obligated to act in a particular manner. Rather, what the Covenant sets out is a guide to ‘virtuous’ governance – how a State does what it is supposed to do. The answer for the U.S. policymaker is not one of legal obligation. Rather, it should be one of fundamentally good policymaking. And good policymaking does not depend on which legal obligations one has incurred.
In short, a human rights framework for energy policy would ask us ‘are we actually advancing a particular value with our policy?’ It would then supplement the dialogue with the question, ‘can we still achieve all other values later when we take this path?’ This would move us to consider next whether we in fact use all available resources (i.e., are we engaged in prudent management of the fiscal and other resources of the State). Finally, it would cause us to ask ‘can we do more through international economic or technical co-operation?’
The Right to a Clean Environment
The ICJ’s recent advisory opinion on climate change recognizes the existence of a right to a clean environment. The right to a clean environment could be seen in two ways. On the one hand, one could think of it as a newly created right on the basis of an effort by people like Professor John Knox and others. This view would point to the progressive codification of the right at the UN Human Rights Council, its recognition in a UN General Assembly resolution and now its validation by the Court.
One could also look at the right in more functional terms. In this view, the right to a clean environment is hardly new or surprising. It just describes one aspect of fulfilling other rights. It is hard to have ‘safe and healthy working conditions’, which States must ensure under Article 7(b) of ICESCR or realize the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ codified in its Article 12(1) in a context of heaviest industrial pollution. This is precisely why the (otherwise conservative) Nixon administration in the U.S. supported sweeping environmental legislation like the amendments to U.S. legislation that would become the Clean Air Act.
The point in this second version of the right is not so much that nature has human rights (something that seems oddly oxymoronic or at least anthropomorphic). It is rather that an environment – the stuff that is around us – is deeply intertwined with our ability for human flourishing. The state therefore has an obligation over time to set that environment to rights in such a way to permit people to flourish in a manner that is consistent with their right to health, food, water, shelter, employment, fair wages, cultural expression, etc.
I read the ICJ’s recent decision as being decidedly in the second camp. It admonishes us in paragraph 393 that “a clean, healthy and sustainable environment is a precondition for the enjoyment of many human rights, such as the right to life, the right to health and the right to an adequate standard of living, including access to water, food and housing. The right to a clean, healthy and sustainable environment results from the interdependence between human rights and the protection of the environment.” This is precisely the kind of language that gets at the second vision of the right rather than the first. The right to a clean environment was always there. It was always about policymaking to support human flourishing. It requires nothing in addition to what we have done since at least the 1970s. It just requires us to take data, facts, and evidence, into account in our policymaking, and to in fact take steps to realize all human rights including the right to a healthy environment. Given that the environment has so many impacts on human life, we must take steps to understand these impacts and act accordingly. This is something competent governments can and should do. It is also a function that can be improved with capacity building, i.e., international technical cooperation.
The right to a clean environment, in other words, is something we can take onboard in balancing the energy trilemma. It tells us to take steps to appreciate evidence and respond to that evidence so as to balance the respective policy outcomes we need to place people on a path to the progressive realization of all relevant human capabilities needed to live a good life. Don’t sacrifice the environment to achieve necessary economic outcomes for instance to reduce unemployment or support better wages. But also don’t sacrifice the support for better wages to support the environment. Balance them both so as to attain as much as possible from each over time.
The Analogous Right to Energy
The ICJ did not recognize a right to energy. There is no equivalent effort, currently, to the right to a clean environment for the right to energy. There are very few authors like myself who advocate that there even should be such a thing. So if understand the right to a clean environment as authoritative because of the advocacy by human rights experts and its recognition by human rights organs, the analogy of a right to energy to the right to a clean environment would be somewhat hopeless. There is no such comparable advocacy or recognition.
The same cannot be said if we think of the right to a clean environment in the second, functional way. The point then is to ask ‘what do we need in order to realize the rights related to employment, food, water, shelter, education, cultural expression and so on?’ If there is something we need for all of these, it is likely that we have stumbled onto something that is structurally important for human-rights-based policymaking. We saw in the previous section that the right to a clean environment is one such functional area of improvement because the environment touches and concerns many if not all of these enumerated rights.
Energy should be exactly like the environment in this regard. Try having employment, food, water, shelter, education, or cultural expression without any energy, and you would fail! This does not mean, necessarily, that the right to energy has to be as robust as the right to a clean environment. It might be that we need comparatively little energy and comparatively a lot of clean environment. It turns out that this supposition is factually false. Vaclav Smil famously graphed human development outcomes against national energy consumptions in Energy and Civilization: A History. It turns out that there is a rather strong correlation between drastic improvements in human development – having more of the rights covered in human rights instruments like the ICESCR – and energy. In fact, one needs to reach the energy access of France before more energy only provides marginal developmental advantages. And most economies – including China and India – are still far removed from that goal.
Energy therefore can be viewed exactly like the environment. It is a fundamental precondition that policymakers should make available to the people under their jurisdiction to realize the rights constitutive of human development. We also need to take steps to advance this goal. The right to energy is just as central as the right to a clean environment once one understands what energy does by following a fact-based evaluative approach.
At this point, I need to anticipate two rejoinders. The first is to the question, ‘if energy is so essential how come so few people thought of it in the human rights context?’ I would push back against that premise. The UN Development Goals do in fact recognize the centrality of energy in Sustainable Development Goal No. 7. There is a strong correlation between human rights discourse and the goals – even if one should not confuse the first with the second. Still, the prominent recognition of energy in the UN Development Agenda means that the rejoinder that energy cannot be as important as I suggest does not hold as much water as one might think.
The second rejoinder is to the question, ‘whether the right can be consistent with the framework built by the bodies tasked with the interpretation and implementation of human rights instruments.’ Here, I would suggest that the right to water recognized by the Committee on Economic, Social and Cultural Rights is one such example. In the context of the right to water, the Committee on Economic, Social and Cultural Rights addressed many of the concerns that arise both in the context of a public utility providing basic necessity and in the context of the privatization of such services. It turns out that this maps reasonably well over how energy is delivered: this too traditionally relied on similar utility structures and this too has been partially privatized and liberalized in many jurisdictions. The right to energy, therefore, can function in much the same way as other recognized rights in the constitutive UN human rights instruments.
Conclusion
The lesson that the energy trilemma teaches, and what human rights law effectively requires, is that the right to a clean environment must coexist with an equivalent right to energy itself. For people to live safely on this planet, they also need to live productively and securely.
What human rights law meaningfully adds to our ability to address the energy trilemma is the critical framework by which we evaluate conflicting policy proposals like these. When policies favoring equivalent human rights come into conflict, policymakers should take steps to realize both conflicting rights to the maximum extent possible and to avoid any permanent imbalance or tradeoffs between the two. If they decide that a given proposal advances or impairs either or both policies, then they should further assess whether future policy actions could improve the policy outcome in question. If, however, a long-term action would place us in the position of sacrificing the quality of our environment or our continuous access to sufficient, safe and economically available energy supplies permanently - without the ability to improve the situation in the future by implementing mitigating actions - that likelihood of a permanent imbalance would be deeply problematic.
To use an old-fashioned, but still applicable, term, such a permanent imbalance would be inconsistent with the duty of States to secure the commonweal – the common welfare, or more to the point: the common good. Securing the common good does not depend upon choosing one specific policy path over the other. On the contrary, it requires of us to evaluate workable alternative paths and to choose between them, to progressively realize all currently conflicting values. This will still leave many plausible pathways for policymakers from which to choose. Which one they choose will depend upon their discerning judgment as to how best to reach the common good. All we can ask – and all that a human rights framework requires – is that they evaluate the consequences of their actions based on a rigorous factual inquiry and adapt their responses as the facts and circumstances require.
This paper represents the research and views of the author(s). It should not be construed as legal or investment advice. It does not necessarily represent the views of the Tulane Energy Law & Policy Center. The piece may be subject to further revision.
