Project Max

Economic Renewable Energy Law - Balancing economic and non-economic values in the EU and US

The project intends to examine legal value balancing mechanisms in different fields of economic law within the context of renewable energy. Economic principles often have to be balanced against other non-economic values. In the field of energy these values include environmental values that reflect the principle of sustainable development. But what exactly do we mean by sustainable and is there a need for a legal definition? Should the principle of sustainable development be coherently interpreted in all fields of economic law?

The research questions relate to whether there is a possibility to have a coherent (or even uniform) approach to balancing values in renewable energy law. For example, in trade law and state aid the main principles reflect an economic rationale and exemptions can be justified on the basis of non-economic values. In these cases the value balancing an at least the proportionality principle becomes relevant. For example, it cannot be taken for granted that renewable energy in itself reflects homogenous values that are balanced with economic values. The definition of renewable energy might be a question of different degrees of ‘clean energy’ and therefore a complex element in the value balancing process. In these fields of economic law, the value balancing is often an overall assessment.

In public procurement the inclusion of environmental criteria has been accepted. These criteria could relate, for example, to how environmental friendly the energy used in the project is. The trend in public procurement has, however, been to demand specific and clear criteria. Therefore criteria of clean renewable energy could probably not be part of a vague overall assessment, but would need to be quantified. This idea of quantifying the criteria is also more explicitly present in some parts sector regulation – although certainly not in all. In the RED there are sustainability criteria for biofuels. The directive establishes a mathematical formula for the calculation of one element in determining what clean energy is, namely GHG emissions.

Should there then be a quantified method that applies to all sectors of economic renewable energy law? If that is the case, the question arises to what extent these observations are relevant for other sectors than renewable energy, within economic law.