Frédéric Gilles Sourgens, James McCulloch Chair in Energy Law & Faculty Director, Tulane Energy Law & Policy Center
In this week’s review, I am pairing two books that together help us find solutions for one of the biggest challenges for the emerging hybrid energy paradigm. That is, different policymakers are prioritizing different approaches to decarbonization – some favor more renewables and batteries, others prefer to lean on gas and carbon capture, etc. Most policies around the world effectively exist between these theoretical extremes. Germany still burns coal and gas. Texas is a leader in the United States in renewable electricity and electric vehicles. That means we need to take a closer look at the value chains supporting the renewable side of the equation to get a better sense of the environmental, economic, and social impacts of that part of the world energy industry.
A book that takes a hard look is Vince Beisler’s Power Metal: The Race for Resources That Will Shape the Future. Beisler is a journalist and a fervent advocate for a renewables and electrification first-energy transition. Beisler’s pragmatism almost allows him to embrace an all-of-the-above approach to energy decision-making (his dislike for the traditional energy paradigm keeps shining through – albeit in an endearingly personal way – he understands people who disagree with him but stays committed to his own preferences.) Despite – or precisely because of – this preference, Beisler discusses how key metals supporting the energy transition are produced and what environmental and other burdens they bear, directly and indirectly. Whether it is copper, strategic minerals, or lithium, Beisler discusses the consequences of global mining activities with the practiced eye for detail of a seasoned storyteller. One comes away from the book thinking there is no such a thing as an environmentally safe transition. One also does not come away thinking that the mining practices required to exploit essential metals will be good for the people who have to produce them. Still, the exposé does not argue for the abandonment of the energy transition. Rather, the book asks critical questions about how to improve the functioning of the renewables value chain.
This book is a must read for any person interested in renewable energy. It is also a model for how you should take stock of the problematic side of your own policy preferences. Even though Beisler at times paints with too dark a brush about many of the mining practices he describes,that is in many ways the virtue of the book: it does not shy away from pointing out the flaws of the paradigm it is advocating. In a world in which energy solutions have almost become a religion unto themselves, this attitude is as refreshing as it commendable.
Beisler’s important section on deep seabed mining needs a supplement. Beisler’s treatment understandably does not fully address the legal regime governing deep seabed mining. Deep seabed mining is a way to develop critical mineral reserves without imposing the environmental and other consequences of mining on any state. Instead, the environmental and other consequences of mining are shared, in an area that truly reflects the common heritage of humanity: the far-flung oceans (technically, the oceans beyond the exclusive economic zone and continental shelf claims of States). Beisler gives hints at how the regime for deep seabed mining works – and what its benefits and drawbacks are –but does not fully develop the topic, even though he teases that we are at a critical decision point for deep seabed mining.
This is where our second book comes in. Linlin Sun’s 2023 International Environmental Obligations and Liabilities in Deep Seabed Mining picks up where Beisler leaves off. It is a masterful exploration of the international environmental law regime governing deep seabed mining. Its approach is pragmatic in the sense that it departs from the premise that deep seabed mining is indeed legally permissible and that all that is still to do is to develop a prudent legal framework to govern it. Sun’s book is erudite in explaining the literature and analogues for the environmental regulation of deep seabed mining. If you are interested in a deep dive into allregimes and their fine distinctions, one cannot do better than to read Sun’s book. The book explores the treaty regime governing deep seabed mining. It explores analogous treaty regimes. It considers whether one should apply a strict liability regime to deep seabed mining and rejects that idea. It is adamant that a regulatory approach under the auspices of the International Seabed Authority is the most pragmatically desirable approach, as well as the most doctrinally sound solution to deep seabed mining. Its treatment is magisterial – and at the same time it is highly technical. (The only complaint is that the book leaves some conclusions to the reader to draw – for instance with regards to the regulatory ability of sponsoring states. Yet, that is hardly a complaint for a work written, astonishingly, by a junior academic. It is simply an instruction to take the author up on the invitation to think along.)
Meeting energy needs puts us before difficult choices. Both books grapple with this difficulty, each in a particularly critical area for global energy law and policymaking. Beisler’s contribution is a must read for a general audience interested in the complexities of energy decision-making. Sun’s book is a must read for any energy and mining lawyer wondering where the next frontier will open. One can easily read them together (as I have done). When you do, you get a detailed, rich picture of how good intentions can create precarity, and how law and prudence can help us address it.
