pre-publication draft
Report Number 11
From Barriers to Opportunities: Renewable
Energy Issues in Law and Policy
A report on the work of the Renewable Energy and International Law Project
(REIL), 2006–2007
Leslie Parker, REIL; Jennifer Ronk, REIL; Bradford Gentry, Yale School of Forestry &
Environmental Studies; Martijn Wilder, Baker & McKenzie; James Cameron, Climate
Change Capital, editors
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& Environmental Studies
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yale school of forestry & environmental studies
REIL is an international network of policy makers, investors, thought leaders, lawyers, and
technical experts, addressing the policy, financial and technical aspects of the developing
clean energy markets.
Yale F&ES Publication Series
Report Number 11
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April 2007
Leslie Parker, REIL; Jennifer Ronk, REIL;
Bradford Gentry, Yale School of Forestry
& Environmental Studies; Martijn Wilder,
Baker & McKenzie; James Cameron,
Climate Change Capital
Jane Coppock
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©AWC Images/SIME
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Dorothy Scott, North Branford, CT
Yale RIS
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© 2007 Yale School of Forestry & Environmental Studies
REIL provides key international policymakers and "agents of change" with guidance on the
development and implementation of tools for increasing still further the production and use
of clean energy. It does so by analyzing the challenges and opportunities for clean energy,
disseminating its findings through publications and events, as well as offering a place in
which businesses and policymakers can discuss, and thus inform, the development of clean
energy policy and finance.
www.reilproject.org
Yale School of Forestry
& Environmental Studies
PRE-PUBLICATION DRAFT
From Barriers to Opportunities:
Renewable Energy Issues in Law
and Policy
A Report on the Work of the Renewable Energy and
International Law (REIL) Project, 2006-2007
Leslie Parker, REIL; Jennifer Ronk, REIL; Bradford Gentry, Yale School of Forestry &
Environmental Studies; Martijn Wilder, Baker & McKenzie; James Cameron, Climate
Change Capital, EDITORS
PRE-PUBLICATION DRAFT
Table of Contents
1
foreword
Leslie Parker, Manager Director, REIL
3
acknowledgements
SECTION I: NEW ARTICLES FOR REIL MEETING AT YALE UNIVERSITY,
APRIL 28-29, 2007
wind turbines and international biodiversityrelated agreements: emerging trends and
recommendations
7
Maria Socorro Z. Manguiat, Legal Officer, IUCN Environmental Law Centre,
Bonn, Germany
Linda Siegele, Staff Lawyer, Foundation for International Environmental
Law and Development, London, England
Debra A. Jacobson, Professorial Lecturer in Energy Law, George Washington
University Law School, Washington, D.C.
international investment agreements and
investments in renewable energy
25
Bradford Gentry, Director, Yale-UNDP Program on Public-Private
Partnerships, Yale School of Forestry & Environmental Studies;
Co-Director, Center for Business and the Environment at Yale
Jennifer Ronk, Deputy Director, REIL
the effectiveness and impact of international
energy treaties
89
Lakshman Guruswamy, Professor of International Environmental Law and Director
of the Energy and Environmental Security Initiative (EESI) at the University of
Colorado Law School
Kevin Doran, Senior Research Fellow, Energy and Environmental Security Initiative,
University of Colorado Law School
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the clean development mechanism: special
considerations for renewable energy projects
109
Principal Authors:
Monique Willis, Associate, Global Clean Energy & Climate Change Practice,
Baker & McKenzie
Martijn Wilder, Partner, Head of Global Practice and Global Clean Energy &
Climate Change Practice, Baker & McKenzie
Paul Curnow, Senior Associate, Global Clean Energy & Climate Change Practice,
Baker & McKenzie
SECTION II: ARTICLES FROM 2006-07 BY REIL AUTHORS
wto disciplines and biofuels: opportunities and
constraints in the creation of a global marketplace
International Food & Agricultural Trade Policy Council (IPC)
Jennifer Haverkamp, Principal Trade Expert, REIL
Summary of the October 2006 International Food & Agriculture Trade Policy
Council (IPC) Discussion Paper, “WTO Disciplines and Biofuels: Opportunities
and Constraints in the Creation of a Global Marketplace.”
world trade law and renewable energy: the case
of non-tariff measures
Robert Howse, Principal Trade Expert, REIL
Reprinted from Journal for European Environmental & Planning Law.
June 2006.
policy profile: the application of waste legislation
to bio-energy
Principal authors:
Helen McKay, Great Britain Forestry Commission, Edinburgh, UK
Martijn Wilder, Partner, Head of Global Practice, Global Clean Energy
& Climate Change Practice, Baker & McKenzie
Paul Curnow, Senior Associate, Global Clean Energy & Climate Change Practice,
Baker & McKenzie
Louisa Fitz-Gerald, Global Clean Energy & Climate Change Practice, Baker &
McKenzie
Reprinted from European Environment 16: 368–375 (2006) Published online in
Wiley InterScience (www.interscience.wiley.com) DOI: 10.1002/eet.435
about the authors
yale school of forestry & environmental studies
PRE-PUBLICATION DRAFT
foreword
1
foreword
Foreword to the pre-publication edition of the REIL report published for the 2nd annual
REEEP REIL Yale event on renewable energy and law, April 28-29, 2007
To the Participants of 2007 Yale Event and to the Governing Board of REEEP:
This publication is a compilation of much of the work REIL has done to date in
analyzing and assessing barriers and opportunities in policy and law for the
development of the global clean energy market.
REIL arose out of a “think piece” for the IEA Renewable Energy Working Party, in
the run up to the September 2002 World Summit on Sustainable Development – at
which Tony Blair launched REEEP.
Since then, the world has changed dramatically.
At the risk of belaboring the obvious, concerns about clean energy and climate
change have come from the fringes to the mainstream. The clean energy market is
awash with capital. It is less the lack of money than the lack of projects or companies
to fund, or the bottlenecks facing manufacturing or supply that is vexing financiers.
Countries without obligations under Kyoto, such as China, India, and Mexico have or
are drafting renewable energy legislation. Russia has renewable energy legislation
being reviewed by Ministers and by the Duma. There are currently 8 climate change
bills* before the Congress of the United States, a non Kyoto ratifier. As a Senate
Energy Committee staffer memorably said, “You cannot throw a stone around here
without hitting someone going to a climate change or clean energy hearing!” It is a
new day.
REIL itself was founded to:
assess the law and policy issues impacting the development of the clean
energy markets;
find ways to expand the markets for clean energy even further;
bring together the policy makers and the financiers and industry players.
Four years ago, it is fair to say, these two camps still were a bit wary of each other.
Now, legislators and finance/business have become partners in designing market
mechanisms and policy strategies that help promote the market and internalize the
real costs of our energy choices. The April 2007 Fortune magazine is its “green” issue,
and it trumpets the fact that business has come around to understanding that “green
is good.”
yale school of forestry & environmental studies
* That is, bills that actually seek
to regulate greenhouse gases.
There are actually a total of
46 bills that specifically refer
to climate change in some
way!
PRE-PUBLICATION DRAFT
2
from barriers to opportunities: renewable energy issues in law and policy
This Yale publication and this event are outputs of REIL’s mission to both provide
content for and to foster the dialogue between these allies.
What REIL has learned over its four years is that one of its key contributions and
functions has been to “connect the dots” (whether the dots are people or issues or
sectors). Without this, effective enabling policy and legislative and finance
frameworks will not be constructed.
Below is an extract from Martijn Wilder’s and James Cameron’s foreword to the
Finance section of April’s edition of Environmental Finance. The passage draws upon
and summarizes some of the conclusions of the 1st Yale meeting of April 2006.
“It is necessary to reconceptualise energy. We need to view energy as a means
to deliver energy services to the community, rather than a commodity in
itself. Energy policy has for too long been stymied by the limitations of
traditional thinking, dominated by the idea of the utility monolith and the
need for long-distance power transmission. By conceptualising energy as the
consumer does – as a means to deliver housing, food and transport – we
pave the way for a paradigm shift in energy policy. Suddenly, the focus
moves from kilowatt hours and generation capacity to infrastructure and
distribution; from fuel sources to end uses. With this understanding, energy
decentralisation and investment in different delivery options becomes more
rational, and the myth that the bulk of a city’s energy needs can be delivered
by only monolithic coal plants with large-scale transmission lines is
debunked. An investment in a solar photovoltaic system is not the
development of another commodity power contributor, but the purchase of
an asset – of permanent infrastructure – to deliver the same energy services
to the owner as traditional electricity sources at reduced cost. By improving
our infrastructure with investments in this type of renewable energy asset,
therefore, we improve efficiency, lower costs and allow renewable energies
access to the market.”
This publication will be finalized over the summer and will incorporate the
findings of the 2007 Yale meeting.
In the meantime, we are very grateful to have all of you as our partners in what has
been a rewarding and fun endeavour to date. We look forward to continuing to work
with you and thank you sincerely for both the keen insights and thoughtfulness that
you have brought to the table!
Sincerely,
Leslie Parker for the REIL founding team (James Cameron, Brad Gentry,
Leslie Parker, and Martijn Wilder)
The currents and eddies of right and wrong, I can’t navigate. I’m no voyager. But in the thickets
of the law, there I am a forester . . . This country’s planted thick with laws . . . and if you cut them
down, d’you really think you could stand upright in the winds that would blow then.”
– As Robert Bolt has Thomas More say on the importance of the rule of law,
from his play, A Man for All Seasons
yale school of forestry & environmental studies
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acknowledgements
acknowledgements
REIL is in association with the Renewable Energy and Energy Efficiency Partnership,
the Yale Center for Environmental Law & Policy, the Center for Business and the
Environment at Yale, and Baker & McKenzie’s Global Clean Energy and Climate
Change Practice.
We would very much like to thank our partners for the Yale events – Climate
Change Capital, the Australian Greenhouse Office, the UN Foundation, The German
Marshall Fund, and the Yale Climate Change Initiative – for their material and nonmaterial support.
And also, of course, our thanks to Jane Coppock, editor of the Yale School of
Forestry & Environmental Studies Publication Series, without whom producing this
report for the April 28-29 Yale event would not have been possible! And our core team
and editors: Martijn Wilder, Brad Gentry, James Cameron, our Deputy Director,
Jennifer Ronk, and all our authors.
Thanks to all for their very hard work, great ideas and dedication to REIL and the
Yale events!
yale school of forestry & environmental studies
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