The law and regulation of the energy sector in Australia is subject to overlapping responsibilities of both federal and state governments. Crucially for energy transition efforts, neither energy, environment nor climate is mentioned in the Australian Constitution. Australia has a tradition of creative cooperative federalism solutions for responding to problems of national importance. In the energy sector this has resulted in an intricate national framework for energy markets, which relies on mirror legislation passed by participating states, with oversight by state and federal executive governments. Independently of these frameworks, both federal and state governments have passed climate change legislation, which crucially includes renewable energy support mechanisms. At a time when a rapid transition to a decarbonized energy system is essential, legal frameworks struggle to respond in a timely fashion. The political discourse around energy has become increasingly toxic – reflecting a dysfunctional state–federal relationship in energy and climate law. Australia needs to consider whether its cooperative federalism solutions are sufficient to support the energy transition and how climate law at the state and federal levels interacts with energy market legal frameworks.

The traditional concern of federalism literature has been both descriptive and prescriptive. How do federalist systems allocate powers among central, regional, and even local governments? How can these powers be divided in a manner that allows for unity and diversity in policymaking and law? These questions are given greater pertinence by the seriousness of climate change and the need for a just transition to lower-carbon economies. Classical federalism, public choice theory, and dynamic energy federalism all have something to offer in the field of clean energy federalism. This article situates the ‘functional federalism’ that arises from South Africa's multi-sphere system of government within these debates. The article explains the system of functional federalism in South Africa and details the tripartite structure (physical, market, and regulatory) of the South African electricity sector. By delineating the complex interactions that have unfolded between governmental and non-governmental actors in the electricity sector in recent times, the article demonstrates that the South African case will be of continuing interest to scholars of federalism.

Federalism is ostensibly misplaced to mitigate climate change as a global public concern as it is prone to import the inadequate incentive structures existing at the international level into the domestic domain. Drawing from the legal structures and procedures of Swiss federalism, this article attempts to provide a more nuanced assessment of the relationship between laws designed to mitigate climate change and federalism. It seeks to demonstrate that federalism may support effective policies to mitigate climate change, provided that the architecture of domestic climate change law meets certain criteria. These include considerable federal powers, a degree of institutional flexibility, robust formal channels of influence for subnational actors on policy formulation at the federal level, ample room for regulatory experimentalism at the lower layers of federalism, and the ‘right to act’ conferred on the Federation to avoid political impasse among the constituent units.

The Federal Republic of Germany and the United States (US) have adopted different models for energy federalism. Germany allocates more authority to the federal government and the US relies on a decentralized cooperative federalism model that preserves key roles for state actors. This article explores and compares the relevance of federal legal structures for renewable energy expansion in both countries. It sets out the constitutional, statutory, and factual foundations in both Germany and the US, and explores the legal and empirical dimensions of renewable energy expansion at the federal and state levels. The article concludes by drawing several comparative lessons about the significance of federal structures for energy transition processes.

The United States (US) is frequently portrayed as a nation with a deep distrust of big government and a strong commitment to markets and competition. In contrast, the prevailing image of the European Union (EU) is that of a highly bureaucratized polity favouring interventionist economic governance over free market capitalism. In the context of clean energy, however, these roles appear to be somewhat reversed. A top-level survey of the US clean energy policy landscape reveals a surprisingly pervasive reliance on government subsidies with few, if any, competitive elements. EU clean energy policy, meanwhile, reflects an unexpected commitment to market-based instruments and competition. This article suggests that these counter-intuitive policy trends can be explained by critical differences in the black-letter law of both jurisdictions and its enforcement in the courts, among other factors. Unlike their American counterparts, EU judges prioritize the timely transition to a low-carbon energy economy over unrestricted competition among Member States. As the EU pushes for greater intrastate competition in clean energy policy, the US focuses instead on defending the Founding Fathers’ ideal of unfettered interstate competition.

Energy transition in the European Union (EU) and its Member States involves questions of federalism, which are subject to various perspectives. The distribution of powers cannot be properly understood using classical legal methodology alone because Articles 192 to 194 of the Treaty on the Functioning of the European Union (TFEU) contain too many ambiguous political compromises. On the one hand, Article 192(1) TFEU (on the environment) and Article 194(1) and (2)(1) TFEU (on energy) enable EU legislation on energy transition through the ordinary legislative procedure, including majority voting in the European Parliament and the Council. On the other hand, there are significant textual limits for EU action in neighbouring provisions with a ‘sovereignty exception’ for the Member States in both Article 192(2) and Article 194(2)(2) TFEU. This article argues that, in the light of the Paris Agreement, the allocation of competences between the EU and its Member States should, in case of doubt, be understood in such a way that effective climate protection becomes possible. Because under Article 191(1) TFEU the EU is to promote measures at the international level to combat climate change, such an international law-friendly interpretation is part of a legitimate teleological approach. Economic theories of federalism and innovation research in the social sciences help us to understand which aspects of economic or innovation theory can promote effectiveness in this respect. It is necessary to interpret the distribution of competences in a dynamic way, thereby slightly shifting the limits of interpretation.

This case comment explores the relationship between two intertwined objectives – ensuring security of electricity supply and environmental protection – in the context of the judgment of the Court of Justice of the European Union in Inter-Environnement Wallonie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL v. Conseil des ministres. The analysis focuses on the application of the Environmental Impact Assessment Directive and the Habitats Directive to the facts of the case, which concerns the extension by a ten-year period of the operation of two Belgian nuclear power stations (Doel 1 and Doel 2) as part of a national energy policy strategy to ensure the security of Belgium's electricity supply. The case comment also considers the legal and practical implications that arise as a result of employing the ‘security of electricity supply’ exemption to enable derogation from the requirements of the aforementioned Directives in circumstances where a Member State considers the security of its electricity supply to be under threat.