By Advocate Dr. Bishnu Bashyal & Advocate Vijay Pd. Jayshwal
Originally published in Lumbini Nyaya Batika (Nepal Bar Council), ISSN: 3021-9493, 2024
Key Words: Energy, Law, Academic, Discipline, Values
Energy law has long been a contested idea in academic circles. Whether it stands on its own as a discipline, or whether it is really just a branch of other social sciences, is still an open question — its autonomy has not yet been settled among universities or legal academia. Yet the way the energy sector has grown, and the priorities governments now place on it, make a strong case for treating energy law as a serious field of study in its own right, on par with any other branch of law.
This piece traces how energy law emerged, why it has struggled to be recognised as an independent academic discipline, and where the field is headed — including the emerging idea of “energy justice.”
Energy Law as a Discipline
Over the last three decades, privatisation and liberalisation of energy markets around the world — combined with growing internationalisation — have pushed energy law toward becoming its own subject rather than an offshoot of other areas of law. Law firms globally have started offering dedicated energy practice areas covering everything from extraction to transportation to end use, and legal job postings in the sector have grown accordingly.
The scholarly starting point is often traced to 1996, when Adrian Bradbrook wrote a seminal paper on teaching Energy Law as an academic discipline. His focus was mainly on Australian issues, but he identified something important: energy law was increasingly acquiring an international dimension, much like how taxation law — once a purely domestic subject — now has global reach.
Even so, the debate hasn’t fully settled. Some scholars have pushed for splitting energy law further into separate fields for oil and gas (lexpetrolia) and mining (lexmineralia), while others have argued strongly against carving out such narrow sub-disciplines. In the meantime, energy law has, to some degree, remained a “forgotten discipline” — many energy disputes still get resolved using general principles of contract, tort, or property law rather than energy-specific rules, and where energy-specific laws do exist, they are often ill-suited to deal with the realities of the energy transition.
How Energy Law Evolved: Five Stages
The development of energy law hasn’t followed one uniform path everywhere — the law tends to track the specific energy source or carrier being used in a given place, and each country’s own social and economic conditions shape how it evolves. Even so, a broad pattern can be traced globally:
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A. Safety (1820 onwards) — This stage grew largely out of the coal industry in the 1820s, driven by the unsafe conditions coal miners faced. Countries agreed on minimum safety standards for the sector. The UK, for example, passed the Mines and Collieries Bill 1842, the Coal Mines Inspection Act 1850, and several follow-up Coal Mines Regulation Acts through the late 1800s. High-profile disasters — Chernobyl, Piper Alfa in the UK, Deepwater Horizon in the US, and Fukushima in Japan — have repeatedly reinforced safety as a foundational concern in energy law.
B. Energy Security (1910 onwards) — This stage picked up after World War II, as states recognised that reliable access to energy resources was tied directly to national security. Interestingly, the need to manage energy security was also one of the driving forces behind the formation of the European Union — a way to stop any single country from stockpiling energy as leverage against others.
C. Energy Economics (1960 onwards) — During the Cold War, “energy economics” became something of a governing idea, studying how people and industries use energy resources and commodities, and the consequences of that use. This includes questions of energy tax, pricing, market deregulation, and efficiency.
D. Infrastructure (2000 onwards) — As energy markets opened up, investment in the physical infrastructure — grids, pipelines, transmission networks — became the defining feature of the period. The US Energy Policy Act 2005 and China’s 2012 White Paper on Energy Policy (targeting major expansion of wind, solar, and nuclear capacity) are examples of this infrastructure-first approach.
E. Energy Justice (emerging) — The newest and still-developing stage. Energy justice is about fair and equitable decision-making on energy issues and the distribution of resources across communities, and it rests on three pillars: distributional justice (who bears the costs and gets the benefits of energy development), procedural justice (equal participation of all stakeholders in energy decision-making), and recognition justice (understanding the different needs of vulnerable and marginalised groups). The World Energy Council has set out eight guiding principles for energy justice, covering availability, affordability, due process, transparency and accountability, sustainability, intergenerational and intragenerational equity, and responsibility.
Guiding Principles Taking Shape
As energy law has matured, certain principles have started to emerge as distinctly its own — echoing environmental law principles but applied specifically to energy:
- Principle of National Resource Sovereignty
- Principle of Access to Modern Energy Services
- Principle of Energy Justice
- Principle of Prudent, Rational and Sustainable Use of Natural Resources
- Principle of Protection of the Environment, Human Health and Combatting Climate Change
- Energy Security and Reliability Principle
- Principle of Resilience
The principle of national sovereignty over natural resources, for instance, traces back to a 1962 UN General Assembly resolution recognising every state’s right to freely dispose of its natural wealth, later reinforced by the Stockholm (1972) and Rio (1992) Declarations. Today it is recognised under international law and embedded in most national constitutions.
The principle of access to modern energy services was formally recognised as far back as 1986, in the Report of the World Commission on Environment and Development (the Brundtland Report), and picked up again in the UN’s 2015 Sustainable Development Goals — notably Goal 7 (Affordable and Clean Energy).
Three Layers of Energy Law
International energy law can be understood as sitting within a broader family of international regulation:
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At the international level, energy law has been shaped by a series of multilateral instruments — the Vienna Convention for the Protection of the Ozone Layer (1985), the Montreal Protocol (1987), the UN Framework Convention on Climate Change (1992), the Kyoto Protocol (1997), the Aarhus Convention (1998), and a number of nuclear-specific treaties such as the Convention on Nuclear Safety (1994) and the Vienna Convention on Civil Liability for Nuclear Damage (1963), among others.
Beyond treaties, a number of institutions now shape international energy law and policy, including the International Energy Agency, the International Atomic Energy Agency, the UN Environmental Programme, and academic centres such as the Oxford Energy Institute, the MIT Center for Energy and Environmental Research, and the Centre for Energy, Petroleum, and Mineral Law and Policy at the University of Dundee.
Beneath this international layer sits a national and local structure:
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National Energy Law is shaped by each country’s own economics, politics, and environmental priorities. China, for instance, moved through three distinct phases — energy regulation during its Planned Economy period (1950s–80s), during its Economic Transition period (1980s–90s), and the current era of energy legislation (2000–present). Nepal, too, has developed its own instruments, including the National Energy Strategy, the Biomass Energy Strategy, and the Energy Efficiency Strategy.
Local Energy Law governs how communities closest to energy infrastructure are affected — covering jobs, land rights, indigenous and fishing community rights, and environmental assessments for local projects. In Nepal, local authorities are permitted to issue licenses for projects below 1 MW, giving them a degree of autonomy, though this area of law is still very much developing.
The Regional Picture: SAARC’s Energy Challenge
South Asia illustrates just how much politics can hold back energy cooperation. Despite being rich in potential — Nepal alone has enormous hydropower capacity — the SAARC region has struggled to translate that potential into a working regional energy market. Political distrust among member states, rather than any lack of technical solutions, has repeatedly stalled cross-border energy trade initiatives.
That said, there have been real steps forward: India now imports significant hydropower from Bhutan and exports power to Bangladesh; the Upper Karnali project reflects growing India-Nepal cooperation; and the 18th SAARC Summit produced a Framework Agreement for Energy Cooperation covering hydropower, natural gas, solar, wind, and biofuel trade across the region.
Still, as the article notes, the technical infrastructure and political will required for a genuine regional energy market remain works in progress — with member states needing to build far more trust before initiatives like a SAARC-wide energy trade agreement can succeed.
Balancing the “Energy Trilemma”
The World Energy Council frames energy sustainability around three competing goals — energy security, energy equity, and environmental sustainability — together known as the “energy trilemma.” Getting the balance right between these three is what enables a country’s energy system to support both prosperity and competitiveness.
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Conclusion
The journey of energy law — and particularly its development in Nepal — remains poorly documented. Globally, energy is often treated as a “strategic commodity,” and how a country manages it says a great deal about its position in the world. Nepal’s own legal frameworks have, in many respects, been borrowed or adapted from developments elsewhere rather than built around the country’s own historical relationship with energy resources. As the sector continues to grow in importance — and as concepts like energy justice gain ground — there is a clear need for more dedicated academic and legal attention to energy law as its own field of study, both globally and specifically within Nepal.
This article was originally published in Lumbini Nyaya Watika (ISSN: 3021-9493), a publication of the Nepal Bar Council – Lumbini Province Liaison Office, Butwal.