Bioenergy or biofuels, i.e. energy based on biological material (biomass) is often being promoted as an alternative to fossil fuels.[1] There are many different types of bioenergy determined either by the type of biomass (e.g. crops, wood or waste) or by the type or purpose of use (e.g. transport, heating or electricity). In particular the “production” of different types of biomass may raise questions about sustainability. Well-known concerns are land use changes associated with growing of feedstock, e.g. food crops or dedicated energy crops. This includes both the direct land use changes (dLUC) by the direct annexation of land for growing bioenergy feedstock, and the indirect land use changes (iLUC) through pushing food and fodder production to other land areas. While the link between dLUC and bioenergy production is often readily traceable, the link between iLUC and bioenergy production is extremely difficult to predict and consequently also to regulate (Di Lucia et al, 2012). Not only environmental effects related to land use changes cause sustainability concerns, also social aspects, including food (in)security, malnutrition and poverty have been raised (Gamborg et.al, 2011). Such biofuel controversies have been translated into a call for “fair fuels” and the need to consider appropriate regulatory mechanisms (Mol, 2010).

Within the EU biofuels are being promoted through the requirement in the 2009 Renewable Energy Directive (RED) that 10 % of all transport fuels by 2020 are to be delivered by renewable sources, including biofuels. In an attempt to address sustainability concerns related to biofuels the Directive sets up specific sustainability criteria re. greenhouse gas savings, land with high biodiversity value or carbon stock and agro-environmental practices. The sustainability criteria are not mandatory in general, but they shall be complied with for the biofuel to count as part of the 10 % mandatory scheme of renewables for transport – the result being a hybrid regulatory model (Lin, 2011). Apart from the regulatory complexity the EU sustainability criteria have been heavily criticised in particular for not addressing iLUCs.

The EU is thus facing a number of legal and regulatory challenges in seeking to promote sustainable bioenergy in a global market. A key question is whether such sustainability issues should be regulated by law at all or whether it should be entirely left to the market? If we choose to regulate what are then the most appropriate regulatory options or instruments? Are transnational meta-norms an appropriate mechanism or do they reflect an inappropriate type of “eco-imperialism” (Lin, 2011)? Is the regulation able to address or specify all relevant sustainability concerns? And how can we ensure an appropriate and sustainable mix of instruments across global, regional and local level? These are some of the questions that will be discussed in this presentation.

[1] In this abstract bioenergy is used as the overall concept for biomass based energy, whereas biofuels is used in the more narrow sense as biofuel primarily intended for transport use (bioethanol and biodiesel).

The IUCN Academy of Environmental Law has attempted to come to grips with these challenges with a series of scholarly events, which have stimulated the thinking for this paper. The emerging biofuel industry challenges our concepts of legal governance for a number of reasons:

projections for the industry suggest that biofuels governance will need to be effective in guiding and controlling the actions of an industry that will be of the scale of the petroleum industry, and even more technologically sophisticated.

This industry will be led by some of the strongest corporations in the industrial world, but at the same time is likely to draw on the landscapes and resources that are currently serve the essential needs of the poor, or of creatures that have no effective political or economic voice.

the industry paradigm itself is highly heterogoneous and rapidly evolving, with radically different models for feedstock production and sourcing, processing, bioprocessing, commercial structures and end-use. It is difficult to know what to govern, and many of the key elements in the future paradigm are closely guarded secrets of major corporations.

Governments are at a significant disadvantage in attempting to govern this industry, in terms of economic imbalance, jurisdictional constraints, competing fundamental goals of intervention, and information assymetry. Traditional instruments are likely to be insufficient to ensure effective governance.

Whilst there are many standards and other industry-led initiatives in process, there are fundamental reasons why these may also prove to be desirable but insufficient as the basis for governance. This is not least of all because the industry itself will consist of highly variegated industrial ecologies operated by powerful and highly varied industry participants in different countries.

This paper considers the totality of the biofuels governance challenges. It suggests that whilst various traditional elements will be necessary, they will be insufficient to the impending governance task. The paper outlines an alternative conceptual model based upon system-focused ‘smart regulation’. Taking into account empirical research conducted around biofuels weeds, the paper will then consider the specific legal and institutional impediments that any such innovation will encounter.

Finally, the paper will outline the implications of these issues for natural resource governance using the law, more generally as an illustration of the extent of change that is likely to be needed in legal instruments, institutions and strategy (and the scholarship of these) to cope with the radically different contexts that are emerging which do challenge our assumptions about the capacity of environmental law.

For the past few years, the Chinese government, out of consideration of energy security and environmental protection, intensified scientific research in renewable energy sources and worked out a sequence of law and policies to promote the development of the renewable energy industry. The legal system and policy framework which aim to improve the bio-industry development in China were initially set up. Among the primarily formed legal framework, Renewable Energy Law of Peoples’ Republic of China is primary legal basis. The implementation of the law depends on the enforcement of administrative regulations, department rules，technical specifications and a series of policies and plans. However, the existing bioenergy law in China is not adequate to regulate the development of bioindustry, and there is no legislation specifically regulating bioenergy. Meanwhile, the integrity of the legal system, the harmony of regulations and the operability of rules are to be strengthened.

In short, the suggestions for promoting Chinese bioenergy law are as follows. Firstly, bioenergy Law should be suited in the third level of the Energy Law (the second level is Renewable Energy Law), with the form of administrative law or department regulation. Secondly, in current bioenergy legal system, principle of deliberation, principle of diversification and life-cycle assessment tool shall be adopted. More negative environmental consequences are to be stressed in the existing and future legislation. Thirdly, the current legal mechanisms, just like the biofuel standard, are to be adjusted or perfected according to the development of bio-industry and the new orientation of bioenergy. The last but not the least, more specific and enforceable provisions are to be stipulated in the future.

In summary, the principle of integration requires integrating environmental protection, economic development and human rights at the conceptual level of policies and laws and at the implementation stage of these policies and laws. Integration is thus a wide concept touching upon many issues of governance. True to the international statements on sustainable development, the requirements of the Directive reflect the principle of integration by trying to integrate the economic development of the biofuel industry with environmental concerns (mainly climate change and biodiversity) and, to a lesser extent, human rights (chiefly labour rights). These mechanisms take the form of sustainability criteria imposed on member states (to integrate environmental protection), and monitoring and reporting duties imposed on the European Commission (to integrate environmental protection and human rights). Integration through the Directive manifests itself, at least in theory, at the conceptual and the implementation stage. It seems, at least prima facie, that the Directive is a positive example of the “integration” of integration in governance. Nevertheless, the Directive has several lacunas, especially on the integration of human rights. The biggest concerns come from the globalized nature of biofuel and feedstock trade, and the application of the integration principle to non-EU states. How can we be assured of the sustainability of the EU system without some form of effective international governance on sustainable development? The EU Renewable Energy Directive is a good example of how the international community can deal with integration (at least environmental integration). Nonetheless, we must learn from this legal model to create the basis of a wider international policy (if not norm) on the principle of integration and sustainable development. Rio gave us the principles; let us hope that Rio+20 will give us the governance tools to properly apply them.