Global Environmental Change 73 (2022) 102454

Contents lists available at ScienceDirect

Global Environmental Change

journal homepage: www.elsevier.com/locate/gloenvcha

The contribution of energy law to the energy transition and energy research
Kaisa Huhta *
University of Eastern Finland, Law School, Center for Climate Change, Energy and Environmental Law, Finland

A R T I C L E I N F O A B S T R A C T

Keywords: This article focuses on energy law’s contribution to the energy transition and to research on that transition. It is
Energy law well known that law plays a pivotal role in governing the energy sector and has fundamental implications for the
Energy transition pursuit of the low-carbon transition. Despite this fact, law often remains confined within its silo, inaccessible to
Energy research
non-lawyers due to its distinctive methodological characteristics and internal jargon. This article aims to initiate
Role of law
an accessible dialogue between energy law and other energy-focused disciplines. It first explains how energy law,
as a legal discipline, should be understood in this context and what that implies for energy law as a system of
governance. It then explores the interface between energy law and other disciplines in which research into the
energy transition is carried out. The article identifies and evaluates the roles of energy law in the energy tran­
sition, concluding with a summary of the implications of the role of energy law for the energy transition and for
energy research.

1. Introduction
The energy transition requires substantial contributions from gov­
ernments and governance, individuals, the private sector and the aca­
demic community conducting research on the energy transition. This
article focuses on the contribution of energy law to the energy transition
and to the scholarly study of that transition.
The need for this article derives from an uncontroversial and
frequently repeated argument: the energy transition can be achieved
only through integrated and interdisciplinary rather than isolated ap­
proaches (Popa, Guillermin and Dedeurwaerdere, 2015; Cherp and
others, 2018; Geels, Berkhout and van Vuuren, 2016; Sovacool, 2014;
Pellegrino and Musy, 2017). Despite this consensus, law often remains
confined within its silo, inaccessible to non-lawyers due to its distinctive
methodological characteristics and internal jargon. While the applica­
tion and interpretation of law to various energy issues have been widely
discussed in legal scholarship, the broader understanding of the
contribution of law to the energy transition and energy research remains
poorly understood both within legal scholarship and beyond it (Soininen
and others, 2021). This article aims to contribute to dialogue between
energy law and other energy-focused disciplines, thus building bridges
between energy law and other types of energy research. The multidis­
ciplinary audience of Global Environmental Change offers an ideal
forum in which to start this kind of dialogue.
In this article, the term ‘energy law’ has a dual meaning. On the one
hand, it refers to the collective body of existing legal norms (meaning a
binding rule or principle) that govern the energy sector (energy law as a
normative system). These legal norms emerge from legal sources, such as
laws and court judgments. They can be specifically addressed to the
energy sector, for example by allocating responsibilities to energy
market actors. These norms can also apply without distinction to all
sectors but nevertheless have a significant effect on the governance of
various activities in the energy sector. Such norms may arise from legal
disciplines such as trade law, data protection law, climate law and
contract law on international and national levels.
On the other hand, this article understands energy law as an area of
research that analyses the collective body of legal norms that govern the
energy sector. In this context, energy law constitutes a legal discipline
within academia (energy law as a legal discipline). It relies on core char­
acteristics and methodological approaches moulded by those charac­
teristics (Heffron et al., 2018; Huhta, 2021b). These approaches separate
energy law from other fields of energy research, such as social sciences
or economics, which may also analyse the legal norms of the energy
sector from the standpoints of their fields but are nevertheless not
regarded as energy law.
In exploring the role of energy law in these contexts, this article also
distinguishes between the energy transition itself and the study of it. The
energy transition is understood as an ongoing fundamental societal,
economic, technological and behavioural shift in how energy is pro­
duced and consumed (Verbong and Loorback, 2012; Cherp and others,

* Address: Law School, University of Eastern Finland, Joensuu Campus, P.O. Box 111, FI-80101 Joensuu, Finland
E-mail address: kaisa.huhta@uef.fi.

https://doi.org/10.1016/j.gloenvcha.2021.102454
Received 27 September 2021; Received in revised form 10 December 2021; Accepted 21 December 2021
Available online 6 January 2022
0959-3780/© 2021 The Author(s). Published by Elsevier Ltd. This is an open access article under the CC BY license (http://creativecommons.org/licenses/by/4.0/).
K. Huhta
2018; Markard, 2018). The study of that process can take place within
the spheres of any discipline, from applied physics to behavioural sci­
ence (e.g. Gao and others, 2016; Jachimowicz and others, 2018). While
the energy transition has been analysed from a plethora of perspectives,
including law, there is a lack of understanding of the roles of law in this
body of research and in the energy transition, even though law has
indisputable effects on the energy transition. This article addresses this
knowledge gap by exploring the roles of energy law in the energy
transition and the implications for energy research. The article is based
on a qualitative analysis of literature in the intersection between energy
law scholarship, jurisprudence and energy research.
Each section of this article is designed to build upon the previous,
giving non-lawyers a systemic overview of energy law’s contribution to
the energy transition and to energy research. Section 2 explains how
energy law, as a legal discipline, should be understood and what that
implies for energy law as a normative system. This review of the foun­
dations of energy law is needed in order to shed light on how it interacts
with other energy research and the energy transition. Section 3 explores
the interface between energy law and other disciplines that focus on the
energy transition. Section 4 identifies and evaluates the roles of energy
law in the energy transition. Section 5 summarizes the implications of
the role of energy law for the energy transition and for research into that
transition.
2. Energy law as a legal discipline
2.1. Origins of energy law
For some years now, there has been active discussion in energy law
scholarship on what makes energy law a legal discipline (Bradbrook,
1996; Fleming, 2019; Heffron et al., 2018; Heffron and Talus, 2016a,b;
Huhta, 2021b; Wawryk, 2014). As a result, energy law scholarship has
identified principles such as national resource sovereignty, energy jus­
tice and combating climate change as key elements of energy law
(Heffron et al., 2018). It has also recognized energy law as an inherently
interdisciplinary field whose scope is defined by its fast reactivity and
problem-based approach (Huhta, 2021b).
Although this discussion is still ongoing and far from reaching a
conclusion, the key characteristics of energy law are also likely to be
recognizable and accessible to scholars from other disciplines that study
energy laws from the perspectives of their various fields. However, the
discipline becomes recognizable as energy law when these core char­
acteristics are combined with law’s distinctive methodological
approaches.
2.2. The methodological core of energy law
The doctrinal legal approach – also known as black-letter law – is the
core methodological approach used in legal scholarship (McConville and
Chui, 2017). It refers to the process by which legal professionals, ranging
from legal scholars to judges and attorneys, identify the relevant
authoritative legal sources, systematize these sources as part of the legal
system in which they operate, determine the meaning of these legal
sources through interpretation, justify legal decisions on grounds of
argumentation and arrive at a conclusion on the basis of this process
(Alexy, 2010; Peczenik, 2005; Aarnio and MacCormick, 1992; Van
Hoecke, 2011). Within this meaning, authoritative legal sources,
including (but not limited to) international treaties, national constitu­
tional provisions, laws, regulations and decrees, case-law and prepara­
tory documents, comprise the research data that form the main object of
legal scholars’ inquiries.
In practice, the methodologies typical of energy law should, and do,
extend far beyond black-letter law. Because of the inherent inter­
disciplinarity and the problem-based approach of energy law, its prac­
titioners do not hesitate to utilize methodologies drawn from other fields
of study. Furthermore, legal scholars are increasingly aware of the fact
2
Global Environmental Change 73 (2022) 102454
that law can never be isolated from its context and, thus, energy law
cannot be severed from the physical, economic, and social preconditions
that determine how law functions (Baron, 1999; Pedersen, 2014).
Because of this, the doctrinal approach alone is often not sufficient to
unravel complex legal questions. However, this paper will focus on the
narrow doctrinal approach because it is the starting point for any legal
research. In fact, the doctrinal approach is second nature to lawyers to
such an extent that legal research articles do not usually explicitly
mention it as the method followed.
2.3. Interpretation of energy law
Legal doctrinal energy law scholarship focuses on the identification,
interpretation and systematization of the relevant rules for the energy
sector. Examples abound. A research group may be faced with a research
question concerning why energy network tariffs are set at a certain level.
A doctrinal researcher would approach this question by identifying the
energy laws in force that apply to energy networks. Around the globe,
these laws often require that tariffs recovered for the usage of energy
infrastructures should be reasonable (Huhta, 2021a; Pront-van, 2016).
With the help of legal sources such as case-law and preparatory mate­
rials, a doctrinal scholar would focus on what ‘reasonable’ means in the
context at hand. Does it mean reasonable for the customer or reasonable
for the network owners? Or is it perhaps a tariff level that neither
consider reasonable, but is, instead, a reasonable compromise between
the two options? In their interpretation of this, a doctrinal scholar may
begin with a dictionary definition of the word ‘reasonable’ (textual
interpretation). They might then try to establish how the legislator
intended this term to be interpreted (historical interpretation) or how it
should be understood in the light of the objectives of the legal system
(teleological interpretation). They might then seek to interpret the concept
of reasonableness in relation to other legal norms (contextual or systemic
interpretation) (MacCormick and Summers, 1991).
The results of this type of analysis do not necessarily describe how
law is interpreted in reality. Rather, the results in this context are pre­
scriptive. They either explain how laws should be interpreted (de lege
lata) or how they should be changed in the future (de lege ferenda) so as
better to reflect (for instance) international commitments.
2.4. Limitations of energy law
By giving recommendations on how laws should be interpreted or
changed, doctrinal energy law scholarship does not empirically measure
the effects of laws. Instead, it uses the authoritative legal sources, in
tandem with the internal logic of the legal system, to prescribe how a
legal norm should be interpreted. This approach has important conse­
quences for what can and cannot be inferred from the results of such
research. It has been aptly pointed out that, in doctrinal scholarship, law
‘is treated as a sealed system which can be studied through methods
unique to the “science of the law”… and legal developments can be
interpreted, critiqued, and validated by reference to the internal logic of
this sealed system’ (Vick, 2004). Arguing from within this sealed system
can give valid results as to how a legal question is likely to be decided
within a court system or how a new technology is likely to be treated by
existing legal systems, but the results do not reveal how laws are
interpreted in practice (Fisher, Horwitz and Reed, 1995).
Because doctrinal scholars argue from within the logic of the legal
system, their reasoning is governed by the boundaries and requirements
set within that system. For instance, a doctrinal scholar can argue that
the Paris Agreement requires its parties to take significant measures to
reduce greenhouse gas emissions. In doing so, this legal professional is
not necessarily being subjectively opinionated (although admittedly
they may also be that), but is basing their argument on the fact that
international law is legally binding on the participating states and re­
quires them to take steps to comply with its obligations. A doctrinal
argument can also be unfavourable to the energy transition. A doctrinal
K. Huhta
scholar might argue that a company that operates a coal-fired power
station is entitled to state compensation for early shutdown due to the
right to property guaranteed in most constitutional laws, even if the
shutdown is required by another law in existence at the time. Again, the
legal professional does not necessarily argue to this effect as an act of
favouritism towards coal (although again they may also do that), but as
a result of the hierarchy of norms, which stipulates that constitutional
law takes precedence over lower ranking laws in the event of a conflict
between them.
Making such fundamental characteristics of the legal system clear to
the energy research community beyond law is instrumental in facili­
tating more integrated solutions in the energy transition. Looking into
the foundations of law, explaining the nature of legal processes and the
roles that we assign to law can all deeply affect the energy transition
(Nonet, Selznick and Kagan 2017, p. 3). In other words, it is necessary to
understand both the nature of energy law as a legal discipline and its
methodological underpinnings in order to explore the interface between
energy research and energy law, which is the focus of the next section.
3. The interface between energy research and energy law
There is a deep connection between energy law as a legal discipline
and energy law as a normative system: they co-evolve. If energy law
scholarship is used as a legal source, it can influence the decision-
making of courts or other institutions (e.g. C-265/08 Federutility and
Others, ECLI:EU:C:2009:640, para. 45). Legal scholarship is also likely
to influence law-making by bringing the research results of energy law
scholarship within the scope of legal norms, for example through the
principles developed in energy law scholarship. In turn, legal norms
affect energy law as a legal discipline. Legal norms change as the energy
transition progresses, and this has an impact on the legal questions on
which energy law scholarship focuses. However, energy law as a legal
discipline is by no means the only area of energy research that influences
law-making in the energy sector. Energy research can co-evolve with
energy law as a normative system: the making, the application and the
interpretation of energy law interact with facts produced by energy
research.
It is research that produces reliable information on why the energy
transition is needed in the first place (Hansen and others, 2016) and on
the measures through which it can be achieved (Patt, 2015). Scientific
processes also reveal problems that remain to be tackled within the
energy transition, be they social, economic, technological or physical in
nature. Research is also geared to finding solutions to these problems.
The energy sector has always been inherently driven by technological
development produced by research, but it is in the context of the energy
transition that the importance of technological innovation is underlined
(EIA, 2017, p. 6). It has been aptly highlighted that research ‘has served
both as a driver and informant in relation to the sustainable energy
transition for decades’ (Romppanen, 2021).
Because of its capacity for discovery and problem-solving in the
energy transition, energy research can feed into and drive the necessary
policy initiatives and the law-making that follows, for example by
providing ethical frameworks (Jenkins, Sovacool and McCauley, 2018).
In fact, to facilitate the technological development and innovation
needed in the energy transition, policy and law-making should carefully
observe the knowledge emerging from scientific processes (EIA 2017, p.
6). In addition to the role of energy research as the driver and the sup­
plier of information into law-making processes, scientific knowledge can
also be instrumental to the interpretation of existing laws. Knowledge
produced by energy research in disciplines such as social science or
engineering can also provide valuable insights for energy law as a legal
discipline when it leads to the making of recommendations on how law
should be interpreted or developed in the future. For example, it is
commonly agreed that the integration of increasing renewable produc­
tion into the electricity sector requires policies to motivate consumers in
order to increase flexibility of electricity demand (Takeshita, 2021).
3
Global Environmental Change 73 (2022) 102454
However, it has also been established that there are motivational factors
that affect the acceptability of demand-side strategies that aim to in­
crease such flexibility (Poortinga and others, 2012). By gaining input
from these types of studies, an energy law scholar can adapt their rec­
ommendations to include legal instruments that mitigate obstacles or
enhance existing facilitative elements, such as these motivational factors
identified in energy research.
The role of energy research in law-making is not without its re­
strictions. There is typically a delay between the discovery of relevant
facts and the actual law that is adopted to respond to those facts (Likens,
2010). Laws can also be (and are) adapted as a result of changes in
political power and these changes may or may not be favourable to the
energy transition (Burke and Stephens, 2018).
Furthermore, energy research ‘does not have a normative role in law-
making’ (Romppanen, 2021), nor do laws emerge from scientific pro­
cesses. Instead, laws emerge out of political processes on international,
regional or national levels, and are nearly always a result of compro­
mises between competing interests. Because of the existence of mutually
competing interests and the adversarial nature of political processes,
even an authoritative message from the scientific community may
become diluted in the process that transforms those messages into
concrete legal obligations. In fact, law-making and facts produced by
research can, and do, frequently conflict with one another (Wagner and
Steinzor, 2010).
It is nevertheless clear that the energy transition requires deep
integration between the complex socio-technological energy systems,
the political and legal processes governing those systems and the
scholarly study of both (Stern, Sovacool and Dietz, 2016). In this inte­
gration, knowledge produced by research has two purposes in relation to
energy law. First, it helps to make clear what should be regulated
through energy law as a normative system and why; and, second, it feeds
into the research questions and interpretations of law made in energy
law as a legal discipline. In turn, energy law both as a normative system
and as a legal discipline has influential functions and roles for the energy
transition and for research into that transition.
4. The roles of energy law in the energy transition
Energy law as both as a legal discipline and as a normative system
has three key roles in the energy transition. First, energy law can be
facilitative, in which case it helps to spur the action needed in the energy
transition. For example, some legal frameworks have created the
concept of guarantees of origin, which are electronic documents
designed to provide a final customer evidence that a specific quantity of
energy was produced from renewable sources (Abad and Dodds, 2020).
As tradeable documents, guarantees of origin generate economic value
for renewable energy producers, thereby giving them a competitive
advantage, but only exist because of a legal obligation.
Second, the role of energy law can be restrictive, in which case it sets
boundaries, constraints or even outright prohibitions in relation to the
developments needed in the energy transition. In its most modest form, a
restriction can be the result of a legal instrument that sends signals that
discourage activities that would otherwise be desirable in the energy
transition. For example, zoning laws or environmental permit proced­
ures can discourage, delay or even prevent renewable energy projects
from being realized (Schumacher, 2019).
There are several reasons why the role of energy law may become
restrictive. While making energy law a facilitator of the energy transi­
tion is likely to be an intentional move by the legislator, the creation of a
restrictive role is more likely to be incidental. In this case, the legislator
may have adopted a law for a purpose that does not specifically relate to
the energy sector and has been unable to predict its effects on the energy
sector. Energy laws can also function in silos in relation to each other.
There are typically different legal instruments for different energy car­
riers and energy infrastructures and there is an abundance of examples
where these legal instruments are not mutually convergent (eg.
K. Huhta
Lavrijssen and Vitez, 2020; Huhta, 2020B). The process of law-making is
also often slower than the energy transition itself and so legal solutions
may have restrictive effects because they have not yet been updated to
reflect the needs of the technological or economic developments taking
place in the real world. For example, some jurisdictions have faced
challenges in classifying energy storage in light of widely adopted
unbundling rules, which require that the supply and generation activ­
ities are separated from the operation of networks (Pielow, Brunekreeft
and Ehlers, 2009). Since energy storage can be considered to fall under
either activity, its legal status is unclear unless explicitly specified in
law. In the EU, making this specification in law took a decade (Elec­
tricity Directive).
Furthermore, as a fundamental shift in how energy is produced and
consumed, pursuing the energy transition requires legal instruments on
many fronts, addressing a plethora of questions. A well-functioning legal
solution to one problem can create restrictive, unwanted effects in
relation to another (Carley and Konisky, 2020; Cosens and others,
2020). Correcting these unwanted effects through legal amendments can
create a climate of sporadic solution-finding and further trade-offs be­
tween objectives, especially if institutions focus on law-making only
within their area of expertise without cross-sectoral coordination be­
tween the energy sector and other sectors affected by the energy
transition.
Third, energy law can have a steering role in the energy transition, in
which case it operates as a navigator that guides the developments that
take place or should take place in the energy transition. For example,
law can determine that renewable energy projects are eligible for sub­
sidization, whereas fossil fuel projects are not, therefore allocating
economic advantages to low-carbon energy activities and steering in­
vestment toward low-carbon goals (Hancher, de Hauteclocque and
Salerno, 2018).
These three roles can emerge from different types of legal sources on
international, regional and/or national levels. This means that a facili­
tative, restrictive or steering legal norm can surface from legal sources
such as international treaties, constitutional law, legal acts or court
judgments. The roles of these legal instruments can have mutually
reinforcing or conflicting effects. For example, a company specializing in
energy efficiency software is likely to be encouraged by energy law, but
also likely to face legal restrictions from fields such as data protection
law (Huhta, 2020B). Furthermore, a single legal norm can simulta­
neously play all three roles depending on the perspective or the actor to
which it is applied.
There are abundant examples of how these three roles impact the
energy transition. For instance, constitutional law establishes the
fundamental institutional and human rights set-up. It often provides for
principles such as the rule of law and, importantly from the point of view
of facilitating low-carbon energy investment, legal certainty, regulatory
predictability and legitimate expectations (Huhta, 2020a). These legal
principles are of paramount importance in attracting the very substan­
tial amounts of investment needed in the energy transition (Boute,
2012). At the same time, however, the same constitutional law that
provides the predictability and stability needed to create a stable in­
vestment climate in the energy sector may restrict, or at least delay, the
kinds of developments that are considered necessary and urgent to
facilitate the low-carbon transition in the energy sector (Teitel, 1997;
Hampton and others, 2021; Soininen, 2018). The right to property as a
fundamental right, for example, will significantly hinder the early
shutdown of fossil-fuel-based power activities or at least make it costly
for governments (Tienhaara, 2018).
5. Conclusions and implications for energy research
This article has explored the contribution of energy law to the energy
transition and to research into it by explaining what energy law is, how
it connects and interacts with energy research and how it can facilitate,
restrict and steer the energy transition. This exploration reveals
4
Global Environmental Change 73 (2022) 102454
compelling implications for the interaction between energy research,
energy law and the energy transition.
Energy research in areas other than law has a pivotal task in
informing energy law on what issues the legislator should address in the
energy transition and feeding into the research questions and in­
terpretations of law made in energy law scholarship. In other words,
energy research can help to provide the facts and tools to rectify failures
or deficiencies in energy law and to provide input for energy law
scholars studying energy law as a normative system.
This interaction is needed because law has indisputable effects on the
energy transition, which transition, in turn, cannot be achieved if dis­
ciplines that aim to facilitate it work in isolation from one another. In
order for this interaction to function, energy law as a discipline should
be receptive to information from other energy research and communi­
cative of its own research results. For energy law scholars, receptivity
means that an energy law scholar should be able to understand not only
legal issues but also questions of economics, politics, social behaviour
and technologies in the energy sector, because these factors create the
preconditions under which legal solutions can function. This requires
substantive insights beyond law and, at the very least, a rudimentary
understanding of the methods used outside legal scholarship (Pellegrino
and Musy, 2017). The communication from energy law scholarship to
other energy research fields should focus on making the internal logic of
the legal system visible and comprehensible to the energy research
community beyond law in order to facilitate the integrated solutions
needed to achieve the energy transition.
Funding
This research was supported by the Academy of Finland (project
340998).
Declaration of Competing Interest
The authors declare that they have no known competing financial
interests or personal relationships that could have appeared to influence
the work reported in this paper.
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