Access to Justice for all – support the Brighton Legal Walk

Please sponsor the University of Sussex Law School team!

On Monday evening I’ll be participating in the Brighton Legal Walk, to support the provision of free local legal advice.

I’ll be walking with colleagues from the University of Sussex Law School to raise funds for a range of clinical law projects run through the school. These projects involve law students, supervised by faculty, providing free legal assistance on a range of issues to local people who may not otherwise have the means to access this kind of advice. Our schemes include:

  • BHT Pro Bono: run in partnership with the Brighton Housing Trust, who work to support homeless, insecurely housed and vulnerable people and to tackle both the causes and effects of homelessness and poverty.
  • StreetLaw: an innovative project that sees students working with Art Schism, a local collective of artists, to explore legal questions around the ownership of artworks and the legality of grafitti, and the potential of art therapy as a form of rehabilitation for ex-offenders. You can find out more on their blog, Facebook and twitter @SussexStreetLaw
  • The Innocence Project: provides pro bono legal and investigative services to individuals seeking to prove their innocence of crimes for which they have been convicted and working to redress the causes of wrongful convictions.
  • The Environmental Law Project: will involve students carrying out research on cases for the Environmental Law Foundation a registered charity providing pro bono guidance and representation to communities and individuals confronted by environmental issues.
  • The Creative Industries Law Clinic: will offer students a chance to be engaged in clinical work related to the areas of Intellectual Property and Media Law in general, with emphasis on digital rights issues, in partnership with Creative Commons and the Open Rights Group.

These schemes give our students a valuable insight into the ways law works in ordinary people’s lives as well as providing much needed legal advice to the community in the context of increasing cuts to legal aid and the austerity programme in general. Please give whatever you can at our fundraising page to help us maintain and develop this work.

The walk takes place this Monday 15th June and follows a 10km route from the Magistrates Court and out along the seafront to finish at Brighton Housing Trust’s First Base Day Centre.

Renewable energy subsidies and Local Content Requirements: Dream come true or WTO nightmare?

Emily Lydgate
Emily Lydgate

We all (or at least most of us) grasp the importance of switching to renewable energy. The problem is, it’s still expensive. Around the world, countries are using subsidies to incentivize renewable energy use, to shelter these fledgling industries from market competition they cannot yet endure. To make these subsidies more politically attractive, governments often add local content requirements (LCRs). This means that some of the taxpayer payouts go to support local manufacturers of solar panels and wind turbines. Not just the environment, but also local industries, are the winners.

Yet making payments specific to domestic producers is antithetical to the law of the World Trade Organization, to which virtually all of these countries belong. A core principle of the WTO is that domestic and imported products should receive the same treatment.

In a landmark 2013 case brought by Japan and the EU against Canada, the WTO Appellate Body made clear that LCRs are expressly prohibited under WTO national treatment and investment obligations. This is unsurprising. Yet there are some aspects of the case that should provide food for thought.

The first is the dogged persistence of countries to attach LCRs to their subsidies, despite such a clear

REUTERS Suzanne Plunkett
REUTERS
Suzanne Plunkett

signal that they may well end up on the losing end of a WTO dispute. The Canadian disputes have led to several more WTO clashes. The retaliatory nature of these clashes reveals that countries in glass houses are throwing stones at one another. For example, when the EU began an investigation of China’s solar panel subsidies, China responded by initiating a dispute on LCRs in the EU’s renewable energy sector. When the US complained of a LCR in a solar energy programme in India, India responded by pointing out several US programmes that seemed to contravene the same WTO provisions.

This raises the possibility that the WTO’s caseload will be clogged with LCR disputes, quid-pro-quo style, for years. Or perhaps governments will simply go back to looking the other way? In either case, if LCRs are the essential sugar-coating to make the renewable energy pill go down, it could be argued that they are, in a pragmatic sense, an environmental policy. Then this becomes a conflict between trade rules and environmental goals – though it may be impossible to build a formal case for this.

Another important issue raised here is whether the subsidies themselves, in this case Feed-in-Tariffs (FITs), are WTO-illegal. FITs are the most popular form of renewable energy subsidy, adopted by more than 71 countries. Whether WTO law will accommodate them is thus hugely significant. The Appellate Body ducked the question, concluding that it did not have enough information complete the analysis. Thus the dispute did not provide a clear precedent.

What it did do is reveal the inadequacy of WTO subsidy laws to deal with the situation. There is no ‘carve out’ for subsidies that are based upon public policy (eg environmental) goals. Though its ruling was inconclusive, the Appellate Body introduced some significant and innovative legal reasoning which shielded the renewable energy market from comparisons with open conditions of competition. This may open the door for renewable energy support to be justified on an economic rather than a policy basis. However, the approach was widely-criticized for its ‘ends justifies the means’ approach and the complex, ambiguous precedent it created. In other words, the Appellate Body got creative. Instead of stretching the interpretation of how a market is defined in general to accommodate this specific result, it would have been more straightforward to conclude that the subsidy was justified in principle because of its policy rationale. The fact that the legal rules are not fit for purpose (if you’ll excuse the pun) is a cause for concern.

WTO Member States will likely continue to use incentive schemes to encourage renewable energy production, with controversial results. As WTO disputes evolve, this will be an interesting space to watch.

Emily Lydgate is Lecturer in Environmental Law at the University of Sussex