You are currently viewing a new version of our website. To view the old version click .
MDPIMDPI
Search all articles
Sustainability
Download PDF
  • Article
  • Open Access

20 July 2017

Normative Alignment, Institutional Resilience and Shifts in Legal Governance of the Energy Transition

Department of Governance & Technology for Sustainability, University of Twente, Drienerlolaan 5, 7522 NB Enschede, The Netherlands
Sustainability2017, 9(7), 1273;https://doi.org/10.3390/su9071273
This article belongs to the Special Issue Innovation in the European Energy Sector and Regulatory Responses to It
Version Notes
Order Reprints

Abstract

In Europe, the energy transition by means of a governance shift through liberalization is followed by a transition and shift towards community energy initiatives, with a particular view of supporting the demand for greater energy sustainability. What institutional legal consequences, as constraints and opportunities for lawful behaviour, follow from a shift in legal governance towards facilitating resilient community energy services? This conceptual article looks for an answer to this question by combining governance theory with Ostrom’s IAD-framework and Institutional Legal Theory. A key aspect is understanding normative alignment (as institutional conduciveness and resilience) in relation to the possible shift from the current institutional environment of regulated energy market to that of a community energy network. The heuristic and analytical (design) relevance of the approach is illustrated with two policy examples contrasting the energy democratization and energy expansion frames, and discussed also in the perspective of energy governance experimentation with community energy initiatives in The Netherlands. Three scenarios of shifts in legal governance are identified. The key issue in legal governance design is the choice between these, particularly with respect to the integrity of institutional environments in terms of former frames to provide proper guidance to operational (experimental) activity.

1. Introduction

In this article, the Special Issue theme of ‘Innovation in the European Energy Sector and Regulatory Responses to It’ is taken up to discuss some underlying legal governance issues of energy sector innovation by community energy services. Such services are managed by or for a community entity and primarily in service of energy needs of that same community, and can contribute to the rise of smart energy systems that are deemed necessary to improve on renewable energy generation and energy saving and energy efficiency [1]. This article does not aim to suggest that these community energy services (henceforth CESs) offer the best approach to foster the energy transition (towards renewable energy services). It does however aim to improve our understanding of the normative nature of this approach, so as to contribute to its potential, while considering how it relates to other approaches, particularly those that focus on regulating the energy market. The legal governance understanding should support normative, but also (future) empirical analyses of existing CES-initiatives, and could also contribute to their design. Consequently, this article is mainly of a conceptual and theoretical nature addressing normative issues. With regard to its design aspect, the article focuses particularly on the element of normative resilience of CESs; the capability of CESs to endure over their intended lifespan while maintaining their normative integrity (i.e., providing stability to and putting community energy needs first): to absorb shocks (e.g., in response to unlawful practices) and to be sufficiently nimble to adapt when changes are needed (e.g., refocusing to facilitate third party involvement).
The leading question of this article is: what institutional legal consequences, as constraints and opportunities for lawful behaviour, are involved in a shift in legal governance towards facilitating resilient community energy services?
Shifts in legal governance to foster renewable energy services, particularly through CESs, will be the point of departure of this article in Section 2. It brings into focus the legal governance perspective of three basic modes of ‘Institutional Environments’ with relevance to energy governance: ‘Constitutional order’, featuring patterns of behaviour with respect to interactions with public government, ‘Competitive markets’, featuring patterns of behaviour concerning private enterprise interactions, and ‘Civil networks’, featuring patterns of behaviour regarding community and network interaction. (Henceforth written with first letter capitals to emphasize their specific type of characteristic: Co, Cm and Cn.) Next, in Section 3 the concepts of normative alignment between levels of governance, and normative resilience are introduced. Not with intent of innovative conceptualization, but primarily to add nuance to this article’s focus on institutional legal consequences of shifts in governance.
The conceptual framework of this article will be unfolded, step-by-step, in Section 4. It consists of three analytical layers. The first layer concerns the position of Institutional Environments, particularly their function from a perspective of multiple levels of governance(-analysis). The second layer builds on this understanding and adds a multi-actor governance perspective, whereby the relation between the said Institutional Environments and operational activities of CESs can be analysed. Collective action within institutionalized patterns of behaviour at one level can produce outcomes that, at least in part, shape similar patterns at another level. While the first and second layer are discussed as being about institutions as empirical phenomena, the third layer discusses the normative dimension of institutionalized patterns of behaviour; legal institutions purport empirically observable patterns of behaviour by virtue of legal prescription. This prescriptive side of institutions is key to the normative alignment; i.e., how actions at different governance levels should legally align. It is also key to the normative resilience of institutional arrangements, such as that of CESs, in the context of a given Institutional Environment, especially with regards to community involvement in operational practice. Table 1 pictures the framework.
Table 1. Conceptual framework.
Against the backdrop of this framework, a brief reflection is provided, in Section 5, on two studies of renewable energy policy practice that were cause to concerns about normative resilience and thus to the analysis presented in the earlier paragraphs—these are illustrations as to the relevance of a normative, legal governance analysis. These studies were also the key incentive to look more closely, as described in Section 6, into the Dutch regime for legally arranged experimentation with CESs. These experiments aim to foster evidence-based choices on the future of energy governance, particularly with regard to the position of CESs—a case by which to demonstrate heuristic relevance of the above framework. Both the examples of Section 5 and the example of Section 6 are intended to illustrate the key elements of legal governance involved in enhancing an energy transition with normative resilience, thereby demonstrating, as will be discussed in Section 7, the heuristic, analytical and design relevance of the legal governance framework presented in Section 4. The article is concluded with key findings relevant to answering the above leading questions.

2. Background—The Energy Trilemma and Institutional Shifts in Mode of Governance

In Europe, the recent and partly still on-going energy transition through a governance shift from energy provision by public enterprises to provision by private corporations, now comes accompanied by initiatives towards another transition: a governance shift towards energy provision by private collectives (e.g., communities). A major driver behind this potential new shift is that the energy market does not seem to live up to the desired sustainability objectives.
From the viewpoint of the energy trilemma—reliable, affordable and sustainable energy services—there are various reasons for this new shift [2,3,4]. Less a concern over affordable access, as the market is generally believed to deliver on this, but certainly a concern over reliability, especially in view of geopolitical concerns, and also over sustainability, given the need for an expedient response to the threats of climate change.
Meanwhile, the transition through a shift from government to market through privatization and liberalization is incomplete, placing energy production and delivery in a hybrid zone of a ‘regulated market’. This is largely due to the public-value aspects of the energy trilemma: concerns over human rights and distributive justice (e.g., access to energy) add a particular dimension to the requirement of energy affordability. One that has given rise to regulatory interventions in the price/demand and supply mechanism, such as the vertical unbundling requirement, regulation of tariffs, duty of supply, and constraints on the power to disconnected consumers from energy delivery.
Another public value concern is that the market should not only deliver static efficiency, leading to lower prices, but also dynamic efficiency, which can enhance reliability and sustainability of energy services. Two public governance types of responses, typical of the current regulated energy market, address this latter concern: (1) retaining public ownership over energy grids; (2) regulating production and supply to secure reliability and sustainability by technical standards [5]. Meanwhile a third response has emerged, suggesting another mode of governance, as ‘Institutional Environment’ to energy actor interactions: (3) ‘Civil networks’. Such networks are about empowering civil society cooperation, and facilitate private community collectives, sharing and prosumerism.
This article is about understanding the normative nature of this third response from a legal governance perspective—not to claim that it is the best response to the challenge of, particularly, sustainability, but to better understand its normative functioning and to support its best possible use.

5. Institutional Alignment—Some Reflections on Practice

Two studies of renewable energy policy practice triggered interest in the legal governance aspects of normative resilience, and reason to embark on the legal governance analysis presented in the afore Section 4, and to the study, presented in the next Section 6, of the Dutch regime for experimentation with community renewable energy services. Both studies are briefly discussed in the below because despite their selection may be somewhat arbitrary, they do no more nor less than paint the picture of the key legal governance issues of normative alignment in the energy transition practice. (Note that the relevant authors gave explicit permission to the use of (quotes from) their papers in this particular article.)

5.1. Community Solar Programs—Expansion or Democratization?

As an introduction to strategies of enhancing CESs, Hoffman and High-Pippert [17] discuss the case of ‘duelling frames’ in the 2013 US-State of Minnesota’s Solar Garden Program. This statutory program was focused on enhancing the deployment of shared solar projects, also known as ‘solar gardens’. A solar garden would involve at least three actors: a developer (to build and own the array), a utility (agreeing to purchase power generated by the array), and subscribers (agreeing to purchase a portion of the output) [17] (p. 4). Solar gardens were not allowed to have a ‘nameplate capacity’ of over one megawatt (MW), and had to be designed to serve the energy use of at least five subscribers, each of which with a maximum share of 40% of the array’s total energy output. Furthermore, these subscribers had to be customers of the utility participating in the project and residents of the county where the solar garden was located. The largest energy provider in the state of Minnesota, ‘Xcel Energy’, was under statutory requirement to create a solar garden program, but other cooperative utilities also participated in the implementation.
The issue that rose over the implementation of this scheme concerned the “framing or defining (of) the underlying meaning of a shared solar program and therefore who should receive the benefits, mainly in the form of the bill credits, associated with a project.” [17] (p. 5) Hoffman and High-Pippert distinguish between two ‘master frames’ in case of shared solar programs. Firstly, that of ‘expansion’, measured by industry and energy indicators (e.g., the number of panels and systems produced and installed, and the amount of solar energy generated and consumed). Secondly, Democratization’, with two ‘subsidiary frames’; that of ‘economic democracy’, which concerns “making solar available to those households previously excluded from the market due to factors such as lack of property (…)”, and that of ‘participatory democracy’, concerned with “engaging individuals in fashioning the nature of the electricity system and as a consequence strengthening their civic lives as citizens” [17] (p. 6) The contrasting orientations of these frames became manifest when it turned out that the overwhelming share of projects facilitated under the program were about establishing so-called ‘chained arrays’: “a number of 1 MW arrays linked together via various engineered elements and a common point of interconnection to a distribution network.” [17] (p. 7) The authors describe how protests rose, as this state of affairs was seen to be “fundamentally contrary to both the law’s intent and the very idea of a solar garden.” [17] (p. 8). Rather than supporting those consumers who have little to no opportunity to access distributed solar generation, objectors felt that the scheme resulted in “utility scale projects by another name, whose primary beneficiaries would be entities with an appetite for large volumes of electricity and the financial wherewithal to support that appetite.” [17] (p. 8). A state of affairs contrary to the purpose to “expand access to solar incentives to groups that had previously been excluded.” [17] (p. 9). Instead of making solar available to “the average person that does not have the space or the proper orientation on their roof” as “lawmakers wanted this program to be for residential and community-based (i.e., churches) customers”, objectors concluded that the scheme had become “a vehicle for the recruitment of corporate or other large-scale subscribers looking to find a hedge against future energy price increases…”, especially through what some called the “multiple megawatt solar arrays”, which should be considered “not ‘community solar’ at all” but rather “utility scale solar” [17] (p. 9). On the other hand, proponents of the existing scheme, mainly (representatives) of lager solar developers, argued that there was a “clear and critical distinction between a solar garden site versus a solar garden project,” and that the statute did not pose limits to the number of projects permissibly situated in close proximity of each other, and that to not allow chained arrays would go against the purpose of the statute to advance the “investment and jobs in solar energy’’. [17] (p. 8).
Following this debate, in 2015 the Minnesota Public Utilities Commission issued a new guidance. Garden sites were henceforth limited to a maximum of 5 MW in the aggregate or, a maximum of “five co-located solar garden projects.” [17] (p. 10). According to the authors, the Commission’s order is “at least implicitly predicated upon the ‘democratization’ frame (…).” [17] (p. 10).

5.2. Power Play and Community Energy Policy

Assuming the need for climate change mitigation policy to find alternative ‘institutional arrangements’, MacArthur investigated what initiatives were taken in three jurisdictions, Ontario in Canada, the United Kingdom (UK) and New Zealand. Given expectations surrounding citizen engagement and empowerment in the energy transition, her focus was on initiatives in the shape of ‘community energy policies’ (CEPs): “citizen participation in and deliberation on policy challenges through the mechanism of project ownership and control (…).” [57] (p. 1). MacArthur states that “(...) ‘community energy’ today is moving into the mainstream due to the promise it holds for participatory governance and instrumental utility for sustainable energy goals.” [57] (p. 3). There is significant evidence for the contribution “of increased democratization through local ownership to sustainable energy”. [57] (p. 4). She also points out that there are both instrumental and normative arguments for taking the deliberative and participative turn, with a positive influence on the effectiveness, efficiency and legitimacy of future renewable energy initiatives. [57] (pp. 2–3). “Furthermore, once institutionally established, community energy actors are not passive recipients of electricity policies but, importantly, are sometimes involved in the ‘co-construction of public policy’.” [57] (p. 4).
In her comparative study, based primarily on key government policy documents, MacArthur looked particularly at reasons behind introduction of CEPs and issues of implementation. [57] (p. 2). In all jurisdictions the electricity sector had moved from state owned to a liberalized market. Ontario and the UK clearly demonstrated willingness to foster CES. In both cases legislative arrangements were established to provide funding for CESs and a Feed-in tariff (FIT) scheme for renewable energy. In Ontario there are “Additional incentives and support mechanisms (…) intended to help level the playing field for groups that would otherwise be excluded from developing renewable energy Projects” [57] (p. 6). In the UK there was “A commitment in terms of infrastructure and resources to the community energy sector. (…) The (…) state, in its rhetoric at least, sees local actors as well-placed to help address issues of fuel poverty as well as local economic development.” [57] (p. 7). New Zealand, while on the path of phasing out coal, seemed less focused on fostering renewable energy, and did not have a FIT scheme. There was some discussion about community development, but rather more in the context of indigenous peoples’ rights to natural resources. The fate of CESs was largely in the hands of the energy market. [57] (pp. 7–8).
According to MacArthur, “The question remains as to the degree to which the community (and co-operative) projects are supporting of transforming the mainstream energy systems given the fact that radical values don’t easily fit with mainstream policy regimes.” [57] (p. 9). Particularly striking is her statement that in many cases the designed CES policies “are aimed largely at reducing local opposition to RE projects by adding a degree of participation at the project development stage. Once built, however, pressures can grow for the local group to sell to commercial actors.” [57] (p. 10). It seems as if the desire to reduce local resistance prevails over public education, local capacity building, and energy justice. In conclusion, MacArthur writes that while some regard “Community energy (...) (as) a perfect expression of the transformative power of the Big Society.”, to reconcile “liberalized markets with a need for social solidarity” is not an easy challenge, “as empowerment and liberalized markets are not easy bedfellows. (…) In practice, they rest uneasily within energy systems in these three liberal democracies.” [57] (p. 10), given also that setting-up CES still mainly depends on the workings of the liberalized energy markets, such as when it comes to funding and grid connectivity.

5.3. In Reflection

The Minnesota policy-case may be seen as one demonstrating the need for legislative clarity and fit to purpose, to secure normative resilience of integrity. It seems that initially the legislative purpose was unclear or insufficiently precise; not suggesting a move away from the existing mode of a Regulated energy market. The statutory scheme, while combining facilitation and hierarchical requirements—particularly upon utilities, to purchase electricity from projects under the scheme—did not prohibit an ‘expansion frame’ practice. The position taken by the objectors of the utility-scale implementation, and the 2015 statutory amendment, aligns (more) with the ‘democratization’ frame, which may be understood to favour a shift towards a Civil energy network mode of governance—emphasizing procedural and distributive energy justice [15,16,58]. Whether this mode is one nested within the Regulated market mode or parallel and overlapping is a matter we need not elaborate upon here. What we do notice is that there are tensions in the normative alignment between Constitutional level outcomes (i.e., the relevant statutory rules) and Collective choice level practice (facilitating ‘chained arrays’), with consequences that, at least the objectors would regard as a lack in normative resilience.
The element of ‘framing’, from the Minnesota-case, is also present in MacArthur’s study of CEPs in three jurisdictions. It shows particularly through the ex ante to project-realization attempt to reduce NIMBY-ism [59], and the ex post to project-realization pressures of a private company take-over—amounting to something like ‘institutional capture’. This observation fits concerns about how different interest and value-orientations, of the Competitive market and of Civil networks, can be reconciled. Some of the rhetoric suggests the desire to move towards enhancing ‘democratization’ through Civil networks, sometimes particular to energy justice concerns, sometimes as one out of various avenues to foster a participative/big society. At the same time institutional arrangements often seem geared mostly by the instrumentalist ‘expansion’ frame, with CESs being facilitated merely by supporting and constraining regulatory interventions additional to the Institutional Environment of a Regulated energy market. Clearly this relates to the legal governance question of normative alignment through institutional resilience with a focus on integrity: to what extent do (Constitutional level) institutional settings legally resist the (Collective Choice level) use of certain frames—suggesting democratization through CESs, while expansion within a Regulated market is actually pursued—and how, if sincere, can institutional change towards Civil network CESs be legally brought about?

5.4. Three Shift Scenarios

From both studies it seems that as a matter of legal governance of energy transition shifts towards renewable energy, the following three institutional scenarios are relevant when governments within state Constitutional orders seek to foster such transition by legislative interventions.
(1)
The ‘incremental CES-support’ scenario where the intervention is mainly about enhancing the use of renewable energy sources through decentralisation, mainly with an eye on ‘expansion’, without aiming to change the workings of the existing Regulated energy market (Rem)—mostly guided by the mere desire to reduce dependency on large fossil fuel-based utilities. In as much as a separate Institutional Environment of a Civil energy network (Cen) is considered desirable, it is most likely nested as exceptional regime within the Rem.
(2)
The ‘implied CES-support’ scenario where the intervention is mainly about promoting a more general shift towards a ‘big society’, as mentioned by MacArthur, rather than one specific to public energy services or justice. (Note that the term ‘Big Society’ is particularly known as a (UK, Conservative party) political doctrine akin to notions such as of a participatory society and communitarianism [60].) Energy democratisation is seen as a vehicle towards the broader shift, or at best one of the key areas to benefit from and support the broader shift, without necessarily placing energy democratization first. Meanwhile, although the concept of ‘big society’ involves Civil society engagement, it should not be identified with Civil networks, but rather with attempts at trial hybridity (see Section 4.1.3; the centre of the Triangle of Figure 1), in which Civil network actors engage and take their share in societal challenges, alongside actors from the Constitutional order and competitive markets environments. Support for procedural justice (i.e., CESs having a say; ‘participatory democratization’) will probably be more important than substantive/distributive justice (i.e., CESs benefitting; ‘economic democratization’).
(3)
The ‘disruptive CES-support’ scenario where the intervention is mainly about enhancing the use of renewable energy sources through decentralisation, mainly with an eye on ‘democratization’/energy justice, specifically through CES, with the perspective of a shift in governance towards Civil energy networks (Cen)—perhaps parallel to the Regulated market, or overlapping as alternative, but in the latter case not likely as a nested (exceptional) regime, but rather as a complementary or competing frame.
Schematically Table 8 presents the above three scenarios in terms of shifts, following the earlier partial liberalization shift from Public energy hierarchy to Regulated market (depicted by the arrow from Co to Rm).
Table 8. Policy Objective behind Community Energy Engagement (EnGov = energy governance).
The primary interest behind these distinctions is whether transition policies are about shifts in institutional settings or not, and if so, in what direction the shift moves. From a position of normative integrity, it is relevant to know whether a shift is motivated primarily by the desire to further an energy service transition, or rather by a desire to more generally strengthen the workings of a particular Institutional Environment (i.e., ‘expansion’ or ‘democratization’?). This, of course, relates to the analysis (e.g., legal interpretation) and legal design of shifts in legal governance, particularly as regards the normative alignment of legal institutions across governance levels, and whether normative resilience is properly secured.

6. Experimenting with Smart Energy Grids in The Netherlands

The case of the Dutch legislator arranging for legal regimes for CES-experimentation, is interesting because not only does it enable applied technological experimenting with smart grids, it also experiments with a mode of governance of CESs as Civil network actors in the context of the energy transition [4]. In that sense it relates to legislative intervention of the ‘disruptive scenario type 3’, in the above Section 5.4 (Table 8). It begs the question of normative resilience as resistance, also versus ‘institutional capture’, while at the same time, the phenomenon of legislative experimentation is of interest to normative resilience as adaptiveness, regarding legal governance of a possible shift in legal space from one to the other institutional Environment: experimental at first, but possibly permanent in future.

6.1. Experimentation as Adaptive Resilience

The Dutch Electricity Act (EA) [61] prescribes by default that energy services are arranged in accordance with the (EU) Regulated energy market [2,3]. At the same time the EA holds a provision on arrangements for experimentation with CESs—in Article 7a EA; as a form of permanent institutional arrangement for temporary institutional settings in experimental action, parallel (and with positional overlapping) to permanent Regulatory energy market settings. This approach is based upon the Dutch NREAP (National Renewable Energy Action Program) [62], which is based upon the EU directive on renewable energy (RED) [2]. It has been designed particularly to determine, with respect to both technology development and innovation of governance, if CES-projects do indeed hold a promise in respect of sustainability and reliability of energy services. If so, this could lead to adjustments in the law, specifically the EA, to create permanent arrangements for such civil network arrangements. There are specific requirements for experimental projects, both in the EA and a Crown Decree (DSEG) [63] based upon the EA, leading up to a case-by-case decision by the minister of Economic Affairs on whether or not to grant a permit to experiment. The Electricity Act nor the DSEG Crown Decree are specific as to whether the key ambition is expansion of renewable energy or energy democratization, as if this is indeed open to experimentation by derogation. (This is to say, derogation, by the legislated permission to, under specific conditions, make an exception from existing prohibitions (or commands): to temporarily (and locally) increase the legal space.) The Electricity Act does little more than provide of rule of power, to introduce DSEG. (Article 2, Section 1 establishes the legal power to (within EU law) introduce DSEG. Section 2 reads (in as much as relevant here, and in the author’s translation): “Experimentation on the basis of the Crown decree is possible only if it contributes to developments in the area of production, transport and supply of decentralized generation of electricity (…).”) As we shall see, DSEG is particularly specific on putting associations at the centre of CES-experiments, but nonetheless it seems to allow a practice that does not necessarily connect this placing with the democratization frame.
The Dutch experimental set-up fits the image of IAD-collective action situations as discussed in Section 4.2, involving changes at three levels: Constitutional (changing the EA; introducing DSEG), Collective choice (D/TSO-cooperation; establishing CESs; granting licences to experiment) and Operational (establishing smart energy systems)—while assuming support at Metaconstitutional level. (Note that prior public consultation took place on the desirability of setting up this legislative framework for experimentation—also involving 12 pilot projects, preceding DSEG [4].) The mechanism of adaptation is schematised in the below Table 9, showing that the EA allows temporary experimentation (column Y; group-prosumerism in a Civil energy network), alongside the default arrangement (column X; separating producer, supplier and consumer in the Regulated energy market). The table should be read from top to bottom, with the columns X and Y regarding firstly, at Constitutional level the default EA rules (e.g., on licences for generation and supply) and the experimental EA and DSEG rules (concerning experimental licences). Next, Collective choice interactions settings are arranged and finally Operational level interactions and outcomes follow. The latter will, also by comparison, yield experimental information and knowledge, which may be transferred to and evaluated at higher levels to ultimately leading to the decision if setting X should be adjusted to permanently include Y. Whether the latter permanent inclusion is one of one hybrid or two permanently parallel Institutional settings is another matter, that also depends on the results from a series of experiments.
Table 9. Connected parallel action situation levels (including experimentation).
Through this experimental approach it becomes possible to achieve a dynamic form of adaptively resilient alignment across the levels. Experimental information from projects can lead to incremental or perhaps disruptive changes in default arrangements, and perhaps to an institutional shift—if indicated by experimental results. Legislative experimentation can of course be a sensitive issue, especially pertaining to risks and legal equality and certainty, and consequently legal arrangements need to be precise [46]. (Note that we ignore the broader EU context, also following the ‘Clean Energy for All Europeans’ proposals of 30 November 2016. [3]. Also see [64].)

6.2. Experimenting on a Shift?

As said, the governance shift that the Dutch are experimenting with resembles a ‘disruptive support’ type 3 legislative intervention scenario (as in Section 5.4/Table 8). Though as yet experimental and so without prejudice to the conclusions following a future evaluation, there are requirements in the experimental regime that clearly take distance from a competitive market perspective. What clearly sets the experimental regime apart from the existing regulated market regime is that the latter builds upon the principle of vertical unbundling (to avoid natural monopolies) and does not allow one and the same organization to be involved in electricity generation and/or transportation and/or storage and/or supply. The experiment does, however, allow such combinations, through group-prosumerism by collective generation and peer-to-peer supply [4], albeit under certain conditions.
To wit, if we compare the default and the experimental regimes under the EA and DSEG, several elements stand out. This becomes clear firstly when we consider technical functionality: grid operation, and electricity generation and supply.
Under the Regulated market grid operation is separated from transactions concerning generation and supply (by energy companies), while under the experimental regime (following Article 2 DSEG, exempting from Article 16 EA), a combination of grid-management and market functions (e.g., generation, transport, generation and (peer-to-peer) supply) is allowed. Following earlier liberalization, electricity generation became a matter for the Regulated market, where electricity ‘producers’ (described in Article 1(g) EA) do not need an EA-license to produce electricity, while government may start a public procurement procedure towards increasing existing production capacity (see Article 9a ff. EA). The experimental regime does in itself not change the legal space for electricity generation; relevant CES-associations do of course need to act as organisational entity. (i.e., other than natural persons as prosumers, who produce for their own use and can supply their surplus tot their own energy company (see Article 95c, Section 2 EA).) Finally, as regards electricity supply, this is again a matter for the Regulated market regime, where electricity ‘suppliers’ (described in Article 1(f) EA) do, according to Article 95a Section 1 jo Article 95d EA, require a license, issued by the minister for Economic Affairs (and handled by the Consumer and Competition Authority—ACM, acting as the National Energy Regulatory/Supervisory Authority). (Following a general prohibition, except when licensed: “It is prohibited to, without license, supply electricity to customers that have a grid connection with a transmission capacity of at most 3 × 80 A.” (author translation)) Licensing, not uncommon to Regulated markets, concerns requirements, such as on reliability, fair tariffs, a policy to avoid customers being shut-off in case of default (Article 95b EA). Within the experimental regime, the electricity generated by a CES-association can be sold only to members and legal persons under the association’s control (Article 7, Section 2 1., sub f. DSEG)—following the stipulation (in Article 13 DSEG) that upon receiving a license to experiment an association is ipso jure granted the general supply-license. This strongly suggests that the experiments are intended as a ‘disruptive support’ type 3 legislative intervention scenario, suggestive also of an energy democratization ambition. (Stronger wording than ‘suggests’ seems inappropriate as this constraint may be seen only as a necessity in the (early stages of) experimentation.)
Furthermore, we find, specific to the nature of the key experimental project organisation, that the experimental exemptions apply only to ‘associations’ (Article 3 DSEG: ‘verenigingen’). According to Article 1 DSEG this is to say: a co-operative (i.e., an association acting upon the physical needs of its members—e.g., energy service), (As defined in Article 2:53, Section 1 Dutch Civil Law Code: “A cooperative is an association established by notary act. According to its articles of association its objective shall be to secure certain physical needs of its members, upon contracts, other than as insurance, between members and the company that the association manages or has managed on their behalf.” (author translation)) or an association of owners as named in Article 5:124, Section 1 Dutch Civil Law Code as having legal personality. Effectively, DSEG allows legal persons as pure associations and hybrid cooperations (see Section 3.3.2). Article 7 DSEG holds further requirements to these associations as grounds for refusal of an experimental license. Aside from technical, organisational, expertise and financial requirements to safeguard technical and economical feasibility, reliability, safety, consumer protection and due environmental care, the most significant elements are:
  • section 1. (f)—supply of electricity to a customer who is not a member of the association is allowed only if it concerns a legal person under full control of the association.
  • section 1. (i)—no other person than the association, aside from a legal person that is under full control of the association, is generating the renewable electricity.
  • section 1. (j)—no T/DSO or (legal) person who is (in)directly producer or supplier of electricity (larger than produced by the association) shall have any say in the management of the association.
  • section 1. (k)—the general assembly of members of the association is in no way excluded from control over the set-up, progress or cost distribution of the project.
  • section 1. (l)—members of the association should be able to bear the costs of the project in the short and in the long run.
  • section 1. (q)—no less than 80% of the customers shall be private consumers.
Clearly these are elements also suggestive of an energy democratization ambition, as only (the, at least 80% private, members of) the association are allowed to produce and consume and (have/) has to be in significant control. This, however, is not to say that there may be strong (contractual) involvement (operational and perhaps beyond) by third parties, such as DSOs, and energy companies, brokers and aggregators. Perhaps in practice such involvement would indeed challenges a normative integrity/resilience understanding that assumes primacy of the energy democratization frame.

6.3. Towards an Institutional Shift?

Within this same special issue, Lammers and Diestelmeier [4] have written about their empirical study and legal analysis of the Dutch experimental regime on decentralized sustainable energy. Their research aims at learning lessons from the experimentally acquired results as regards the modes of governance following the DSEG Crown Decree and whether these are implemented, and how, in nine projects undertaken on the basis of experimental permits granted under DSEG. Their findings are grounded by data from publicly available project applications, official acceptance letters, project websites and news items about projects in progress.
Lammers and Diestelmeier’s main comment upon their findings is that the experimental regime is too restrictive as it does not allow experimentation with a broader array of governance modes. They find that the focus on associations is too narrow and that this leads to excluding the experimental involvement of other/emerging new actors in the CES context. This comment follows from their finding that in five out of nine of the current experimental projects an external stakeholder is actually in the lead: project developers, a solar PV company, a research centre and a real estate company—having become members of the association. Also, the conventional stakeholders, such as DSOs, energy companies, brokers and aggregators still play a major partnering role. In practice consumers are hardly active and mostly limit their involvement to voting at periodical members’ meetings. Lammers and Diestelmeier regret that the experimental regime does not regulate for new actors, such as the abovementioned, but also actors involved in larger scale aggregation to manage flexibility of grid users, and of operators of storage facilities. They find that, in their opinion unfortunately, the experimental regime does not address the first and last of the three main barriers to active consumer involvement as listed by Verbong et al. [65]: a. no room for selling electricity by CES; b. lack of dynamic tariffs, and c. proportionally high transmission grid utilization costs). Lammers and Diestelmeier [4] comment that in the current experimental projects, active consumer involvement is insufficiently incentivized. Further, they find that the experimental regime is lacking in financial incentives to upscale experimental projects.
This is not the place to argue about methodological issues involved in setting the proper focus in establishing an experimental setting; not too broad nor to narrow to yield reliable and representative information. Certainly though, the findings of and comments by Lammers and Diestelmeier are most relevant , given how they relate to the functional design and to the normative integrity of the institutional environment available to experiments—also with a view on a future permanent regime for CESs. Their claim seems to be that to operate effectively and efficiently, or indeed to be more conducive and resilient, a broader spectrum of relations needs to be conceptualized and regulated. One could indeed argue that a permanent Institutional Environment for CESs, with a proper balance between public service dimensions, providing the functional complexity to deliver on conduciveness and resilience, requires a more sophisticated and incentivizing regulatory setting, particularly of consequential rules, than are present in the current experimental regime. This point does, however, beg the question what such a broader setting, particularly regarding the role of a variety of new actors, some of which of a commercial nature, would mean in terms of positional unions between the existing Regulated energy market and a future Civil energy network, and how this should affect the preceding experimental set-up. One could equally argue that at this stage of the game, one should be careful to not open the spectrum of actor relations too widely, and avoid underdeveloping CEs self-regulatory capacity and/or giving in to modes that basically amount to institutional capture. Would it not be preferable to focus experimentation on the ‘democratization’ frame rather than on ‘expansion’—with a prospect of a disruptive type 3 shift scenario? Retaining normative resilience of the experimental regime in terms of the normative integrity of the democratization frame could be (better) secured by proper prohibitive and commanding mechanisms of resistance, alongside (more effective) mechanisms of conduciveness, such as expert and financial support. Still, it has to be said that the findings of Lammers and Diestelmeier indicate that institutional capture may already be going on and is perhaps unavoidable. If this is indeed the case, then it is fair to suggest that already in the experimental stage a more elaborate regulatory framework should be in place, accepting that this allows for a broader range of experimental variety, thus aiming rather for adaptive resilience within the Regulated energy market, following scenario 1. (Note that the distinction between experimentation by derogation and by devolution [46] should not be taken to suggest that derogation as under EA/DSEG does not allow for experimental variation (as does experimenting by devolution).)
What is also clear from the above is that Lammers and Diestelmeier’s criticism goes out to the actors at Constitutional level. These actors should, within their legislative action situation rearrange the Institutional Environment for experimentation, particularly in the DSEG, but perhaps also in the EA. Criticism does not go out to the actors in action situations at the Collective choice level (e.g., through institutional capture) and Operational level (e.g., consumer inactivity). Indeed, the authors’ position is that, whilst technology offers a promise to make CESs deliver on the energy transition, there is a legislative disconnect that needs to be addressed, and once addressed properly we may see, through alignment across levels, that the new technology will deliver on its promise. Again, a question that, with all of this, can and should be asked, is if the suggested broadening is one that fosters ‘expansion’ of renewable energy service rather than that of ‘democratization’, and, as regards legal design, how this is effectuated in terms of the normative integrity of related legal institutions across governance levels.

7. Final Discussion—(Experimental) Normative Alignment

The Dutch experiment clearly suggests that the legislative regime is tailored to be resilient against the risk of institutional capture (see Section 5.3 and the immediately above). This follows from its design of both the CES key functions (operations, generation and supply) and the key characteristics of the CES entities, and prescribed legal position, conditional to being eligible to be granted a permit. Thus the experimental regime requires normative alignment between the CES-organization and the experimental Institutional Environment. Whether this also has any predictive relevance to any possible future and permanent Institutional Environment accommodating CESs remains to be seen. Clearly though, the experimental setting’s narrow ‘legal framing’ does show for a specificity of normative integrity, opening-up the possibility for findings that may lead to a ‘disruptive support’ type 3 legislative intervention scenario (as in Section 5.4/Table 8). In such case the legislator, at IAD-Constitutional level, will still have to consider the balance between public energy service dimensions in the choice between one regime of an Institutional Environment encompassing a Regulated energy market (Rem) and a Civil energy network (Cen), which does leave the option for a no. 1 scenario (i.e., adaptions of Rem, perhaps exceptional nesting of Cen within Rem)—while it does not rule out a hybrid scenario 2. More in general, legislative experimentation makes sense because evaluation of findings, considering the need for an improved, more sustainable balance of public service dimensions, will touch upon very many legal specificities. The Dutch experimental regime displays but a few of those. Having said this, we should acknowledge that legal design of Institutional Environments is probably a matter of remediableness: when, at any particular point in time, no feasible superior mode can be determined and implemented, the existing or suggested feasible mode is optimal. [66] (p. 59).
Legal specificities will also determine the requirements of normative alignment and will consequently determine normative resilience. While it is tempting to analytically flesh-out specificities that a permanent Civil energy network environment could bring, particularly on the aspect of (procedural and substantive/distributive) energy justice and (economic/participatory) democratization [15,16,41,58], this is not possible here. The varieties in consequential rules, both in terms of requirements on CES-actor typology, as particular types of legal institutions, and of consequential rules of the Civil energy network concerning lawful interactions between CESs, and between CESs and other public energy service actors (e.g., DSOs, energy regulators, companies, brokers and aggregators, and CES members and other consumers) are simply enormous, certainly if we are open to hybrid outcomes.
As regards legal personality (see Section 4.3.2) we could at most suggest an ideal type approach to normative alignment with Institutional Environments. The distinction made between corporations, associations and foundations, will only take us so far, if only because it is applicable both in private or public law variations. Adding characteristic mechanisms of ‘Mission’ (i.e., task or objective), ‘Control’ (i.e., agents determining course of action) and ‘Response’ (i.e., to exogenous incentives) may allow greater analytical and design sophistication, albeit in ideal type terms [67]. Mission, as underlying raison d’etre, may be differentiated into ‘public task’, ‘private profit’ and ‘community service’. Control over actions may lie with some ‘public authority’, ‘investors’ or ‘professionals’. Response may substantively depend on external incentives of ‘public good’, ‘competitive advantage’ and ‘members/the community’. Together these mechanisms can be used in consequential rules to the instantiation of a Civil energy network, to ensure resilience on ‘energy democratization/justice’—or indeed, in an ‘energy expansion frame’, within an instantiated Regulated energy market—through a tailored legal specification commanded for CESs as admissible legal persons, following the demands of normative alignment. Table 10 offers an overview of the overall ideal type categorisation.
Table 10. Ideal type point of departure in normative alignment between legal persons and Institutional environments.
Again it should be understood that the table is not to suggest an inherent link between types of legal persons and types of Institutional Environments. As said, different legal forms may be tailored in such a (pure or hybrid) way that ultimately, while perhaps causing serious organizational transaction costs, different forms can fulfil similar functions. In terms of normative resilience versus institutional capture, the key questions is whether, as with the expansion frame, involvement of commercial actors controlling a CES-association creates an undesirable hybrid, at least in misalignment with a Civil energy network Institutional Environment. Again, it should be emphasized that normative resilience, upon normative alignment across governance levels, is very much in the details, so that the above only provides an analytical point of departure in assessing or designing such alignment.

8. Conclusions

In the context of the energy transition, this article is about the legal governance of balancing the desire for (experimenting towards) making institutional changes, with the need for institutional stability and certainty. Our focus was on normative alignment, particularly of legal institutions (e.g., forms of legal personality and types of legal relations), across governance levels, featuring normative resilience, with different frames (i.e., democratization and expansion) underlying normative integrity. Given new technological possibilities, such as in smart energy systems, the key challenge in legal governance of the energy transition is to, at various levels of governance, establish institutional settings that allow collective actions of energy service to lead to a proper (design of a) balance between public energy service dimensions.
Our leading question was: ‘What institutional legal consequences, as constraints and opportunities for lawful behaviour, follow from a shift in legal governance towards facilitating resilient community energy services?’ To provide a legal governance approach to answering this question we applied a conceptual framework which combined Williamson’s levels of social analyses, with an elaboration on pure and hybrid Institutional Environments, the IAD-framework, again with levels, but with a focus on collective action situations, and Institutional Legal Theory, particularly to explain the concept of legal space and of legal institutions. This analytical basis allowed us to look at institutional shifts from the perspective of normative alignment and the need to underpin institutional conduciveness and normative resilience. All of which against the backdrop of the quest for the proper balance of public energy service dimensions, both from individualist and collective concerns, and particularly as regards effects on improving the balance in the energy trilemma—fostering sustainability through CESs. We witnessed the duelling frames of energy ‘democratization’ and ‘expansion’, and difficulties of reconciling market efficiency and network solidarity in two policy-studies on the energy transition and the role of CESs. This led us to distinguish three scenarios for transition by legislative interventions (of incremental, implied, and disruptive support), and consider these while analysing a Dutch legislative regime for CES experimentation. While this regime offered an example of how experimentation can be a vehicle for collective action towards adaptive normative resilience, it also became clear that its settings seemed somewhat problematic in practice. While on the one hand the experimental setting seemed rather restrictive to successfully establish and operate CESs, the question remained whether experimentation should be more focused on ‘democratization’, with a view on gathering experimental information to decide on a shift towards establishing a Community energy network (in scenario 3). Alternatively, experimentation could focus on ‘expansion’, with a ditto view on adapting the current Regulated energy market (in scenario 1)—or some in-between hybrid (scenario 2). The answer to this question requires a thorough and detailed analysis and design of legal tailoring, against the backdrop of a proper understanding of the requirements of normative alignment of legal institutions across governance levels—such as was demonstrated with the analytical frame of an ideal type fit between legal persons characteristics and types of Institutional Environments.
Clearly the issue of the energy transition is riddled with frames, institutional fragmentation (parallelism, overlaps and nesting), and with legal details, altogether begging the need for proper institutional orchestration. Such orchestration, probably but not necessarily with legislators in the lead, will also require proper legal analysis and design. Underlying patterns, such as of legal institutions are relevant firstly because of their analytical value. The suggested legal governance approach allows comparative descriptive-legal study, rising above the mere doctrinal level. Further, it provides links to social science analysis, as per ‘ILTIAD’ (Section 4.3.3/Table 7) and towards legal design on the basis of legal institutions with their distinct sets of constitutive, institutive, consequential and terminative rules. The approach also relates to the normative integrity that is inherent to legal institutions, as their regimes come with legal powers allowing certain actors in any given instantiation of that institutional type to tailor its regime and set a path for the legal evolution of that instantiation [54] (pp. 369–370). In that respect, the challenge of normative resilience also lies in designing absorptive/resistant institutional settings, meanwhile allowing for self-regulation within instantiations of legal institutions, such as in Institutional Environments for CES (experimentation) and for the workings of CES as legal persons, and if necessary disruptive shifts.
A final answer to our leading question cannot be given at this point. Clearly legal governance matters because of how legal constraints and opportunities are enshrined in the legal space characteristic to Institutional Environments, with relevance to multi-level collective action situations involved in the positioning of CESs in the energy transition context. Further study is necessary to understand relations between modes of governance both at Constitutional and Collective choice levels, also with respect to the design of institutional hybridity and parallelism, and of normative resilience. Legal design needs to reconcile or choose between the duelling frames of ‘democratization’ and ‘expansion’ and avoid a vagueness of normative integrity that would ultimately pose a threat to properly and resiliently balancing public service dimensions. To our topic of the energy transition, the latter matters especially as regards handling the energy trilemma, and strengthening sustainability with a clear perspective on ‘expansion ‘versus ‘democratization’. Clearly the relationship between the energy trilemma and energy justice needs to be examined more closely from a legal governance perspective [68]. To determine the full potential of CESs in the context of the energy transition requires that further research is done that links empirical and legal governance studies concerning the design and functioning of Institutional Environments (as legal institutions), especially as regards the legal space of Civil energy networks, their requirements to normative alignment, and their normative resilience.

Supplementary Materials

The following are available online at www.mdpi.com/2071-1050/9/7/1273/s1.

Acknowledgments

The author would like to thank the organizers of this Special Issue, especially for their efforts in hosting several sessions at the European Consortium for Political Research (ECPR) 6th Standing Group on Regulatory Governance Biennial Conference, Tilburg University, The Netherlands, 6–8 July 2016.

Conflicts of Interest

The author declares no conflict of interest.

References

  1. European Commission. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—Smart Grids: From Innovation to Deployment. (Esp. Par. 1. First Section). COM/2011/0202 Final. Available online: https://publications.europa.eu/en/publication-detail/-/publication/7b217e8a-11ad-4a99-9dd6-d51f4ed1758e/language-en (accessed on 15 July 2017).
  2. European Parliament; Council of the European Union. Eur-lex, Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the Promotion of the Use of Energy from Renewable Sources and Amending and Subsequently Repealing Directives 2001/77/EC and 2003/30/EC (Text with EEA Relevance). Off. J. Eur. Union 2009, L140, 16–62. [Google Scholar]
  3. European Commission. Clean Energy for All Europeans’ Proposals of 30 November 2016, COM (2016) 860 Final. Available online: http://eur-lex.europa.eu/resource.html?uri=cellar:fa6ea15b-b7b0-11e6-9e3c-01aa75ed71a1.0001.02/DOC_1&format=PDF (accessed on 30 April 2017).
  4. Lammers, I.; Diestelmeier, L. Experimenting with Law and Governance for Decentralized Electricity Systems: Adjusting Regulation to Reality? Sustainability 2017, 9, 212. [Google Scholar] [CrossRef]
  5. Arentsen, M.J.; Künneke, R.W. Economic organisation and liberalization of the energy industry. Energy Policy 1996, 24, 541–552. [Google Scholar] [CrossRef]
  6. Hart, H.L.A. The Concept of Law, 3rd ed.; Oxford University Press: Oxford, UK, 2012. [Google Scholar]
  7. Lindahl, L. Position and Change—A Study in Law and Logic; Synthese Library, Volume 112; Springer: Dordrecht, The Netherlands, 1977. [Google Scholar]
  8. Ruiter, D.W.P. Legal institutions as systems of legal norms. In Governance in Modern Society. Effects, Change and Formation of Government Institutions; van Heffen, O., Kickert, W., Thomassen, J., Eds.; Kluwer Academic Publishers: Dordrecht, The Netherlands, 2000; pp. 349–366. [Google Scholar]
  9. Ruiter, D.W.P. Legal Institutions; Kluwer Academic Publishers: Dordrecht, The Netherlands, 2001. [Google Scholar]
  10. Lammers, I.; Heldeweg, M.A. Smart design rules for smart grids: Analyzing local smart grid development through an empirico-legal lens. Energy Sustain. Soc. 2016, 15. [Google Scholar] [CrossRef]
  11. Hohfeld, W.N. Fundamental Legal Conceptions as Applied to Juridical Reasoning; Yale University Press: Westport, CT, USA, 1964. [Google Scholar]
  12. Folke, C. Resilience: The emergence of a perspective for social-ecological systems analyses. Glob. Environ. Chang. 2006, 16, 253–267. [Google Scholar] [CrossRef]
  13. Brownsword, R. Rights, Regulation and the Technological Revolution; Oxford University Press: Oxford, UK, 2008. [Google Scholar]
  14. Butenko, A.S. Dealing with Regulatory Disconnection in Dutch Energy Law. Eur. J. Risk Regul. 2016, 4, 701–716. [Google Scholar] [CrossRef]
  15. Goedkoop, F.; Devine-Wright, P. Partnership or placation? The role of trust and justice in the shared ownership of renewable energy projects. Energy Res. Soc. Sci. 2016, 17, 135–146. [Google Scholar] [CrossRef]
  16. Sovacool, B.K.; Burke, M.; Baker, L.; Kotikalapudi, C.K.; Wlokas, H. New frontiers and conceptual frameworks for energy justice. Energy Policy 2017, 105, 677–691. [Google Scholar] [CrossRef]
  17. Hoffman, S.M.; High-Pippert, A. Community Solar Programs and the Democratization of the Energy System. In Proceedings of the European Consortium for Political Research, Montreal, QC, Canada, 26–29 August 2015; Available online: https://ecpr.eu/Filestore/PaperProposal/8ac09b8b-ed6e-4798-b1ed-6975c7172230.pdf (accessed on 18 July 2017).
  18. Bower, J.L.; Christensen, C.M. Disruptive Technologies: Catching the Wave’. Harv. Bus. Rev. 1995, 73, 43–53. [Google Scholar]
  19. Commons, J.R. Institutional Economics; University of Wisconsin Press: Madison, WI, USA, 1934. [Google Scholar]
  20. Williamson, O.E. The Economic Institutions of Capitalism; Free Press: New York, NY, USA, 1985. [Google Scholar]
  21. Bressers, J.T.A.; Boer, C.L.; Lordkipanidze, M.; Özerol, G.; Vinke-de Kruijf, J.; Farusho, C.; Lajeunesse, C.; Larrue, C.; Ramos, M.-H.; Kampa, E.; et al. Water Governance for Drought Resilience. Water Governance Assessment Tool: With an Elaboration for Drought Resilience; INTERREG IVb DROP Project: Almelo, The Netherlands, 2013; Available online: http://doc.utwente.nl/86879/1/Governance-Assessment-Tool-DROP-final-for-online.pdf (accessed on 29 April 2017).
  22. Black, J. Critical reflections on regulation. Aust. J. Legal Philos. 2002, 27, 1–35. [Google Scholar]
  23. Reis, H.T.; Andrew Collins, W.; Berscheid, E. The Relationship Context of Human Behavior and Development. Psychol. Bull. 2000, 126, 844–872. [Google Scholar] [CrossRef] [PubMed]
  24. Williamson, O.E. The new institutional economics: Taking stock, looking ahead. J. Econ. Lit. 2000, 38, 595–613. [Google Scholar] [CrossRef]
  25. Scholten, D.; Künneke, R. Towards the Comprehensive Design of Energy Infrastructures. Sustainability 2016, 8, 1291. [Google Scholar] [CrossRef]
  26. Scott, R. Institutions and Organizations; Sage: Thousand Oaks, CA, USA, 1995. [Google Scholar]
  27. Crawford, S.E.S.; Ostrom, E. A grammar of Institutions. Am. Political Sci. Rev. 1995, 89, 582–600. [Google Scholar] [CrossRef]
  28. Van Genugten, M.L. The Art of Alignment. Transaction Cost Economics and the Provision of Public Services at the Local Level; University of Twente: Enschede, The Netherlands, 2008; Available online: http://doc.utwente.nl/58769/1/thesis_van_Genugten.pdf (accessed on 5 January 2017).
  29. Clark, M.S.; Judson, M. Interpersonal attraction in exchange and communal relationships. J. Personal. Soc. Psychol. 1979, 37, 12–24. [Google Scholar] [CrossRef]
  30. Fiske, A.P. Structures of Social Life: The Four Elementary Forms of Human Relations; Free Press: New York, NY, USA, 1993. [Google Scholar]
  31. Dahl, R.A. Dilemmas of Pluralist Democracy: Autonomy vs. Control; Yale University Press: New Haven, CT, USA, 1982. [Google Scholar]
  32. Powell, W.W. Neither Market nor Hierarchy: Network Forms of Organization. Res. Organ. Behav. 1990, 12, 295–336. [Google Scholar]
  33. Thompson, G.; Francis, J.; Levačić, R.; Mitchell, J. (Eds.) Markets, Hierarchies and Networks. The Coordination of Social Life; Sage: London, UK, 1991. [Google Scholar]
  34. Rhodes, R.A.W. Understanding Governance; Open University Press: Buckingham, Buckinghamshire, UK, 1997. [Google Scholar]
  35. Rhodes, R.A.W. Understanding Governance: Ten Years on. Organ. Stud. 2007, 28, 1243–1264. [Google Scholar] [CrossRef]
  36. Ostrom, E. Understanding Institutional Diversity; Princeton University Press: Princeton, NJ, USA; Oxford, UK, 2005. [Google Scholar]
  37. Lieberherr, E. Legitimate, Effective and Efficient Water Governance? A Comparative Analysis of Cases in Germany, England and Switserland. In Proceedings of the ECPR General Conference, Reykjavik, Iceland, 25–27 August 2011; Available online: https://ecpr.eu/Events/PaperDetails.aspx?PaperID=8913&EventID=1 (accessed on 29 April 2017).
  38. Lieberherr, E. Andreas Klinke and Matthias Finger. Towards Legitimate Water Governance. Public Manag. Rev. 2012, 14, 923–946. [Google Scholar] [CrossRef]
  39. Scharpf, F.W. Governing in Europe. Effective and Democratic? Oxford University Press: Oxford, UK, 1999. [Google Scholar]
  40. Buchanan, A.; Keohane, R.O. The Legitimacy of Global Governance Institutions. Ethics Int. Aff. 2006, 20, 405–437. [Google Scholar] [CrossRef]
  41. Beisheim, M.; Dingwerth, K. Procedural Legitimacy and Private Transnational Governance. Are the Good Ones Doing Better? In SFB 700 Working Paper Series, No. 14; German Research Foundation (DFG): Berlin, Germany, 2008. [Google Scholar]
  42. Gerber, D.J. Ordoliberalism: A New Intellectual Framework for Competition Law. In Law and Competition in the Twentieth-Century Europe: Protecting Prometheus, Chapter VII; Gerber, D.J., Ed.; Oxford University Press: Oxford, UK, 2001. [Google Scholar]
  43. Fung, A.; Wright, E.O. Deepening Democracy: Innovations in Empowered Participatory Governance. Politics Soc. 2001, 29, 5–42. [Google Scholar] [CrossRef]
  44. Abbott, K.W.; Snidal, D. Strengthening international regulation through transnational new governance: Overcoming the orchestration deficit. Vanderbilt J. Trans. Law 2009, 42, 501–578. [Google Scholar]
  45. Sabel, C.F.; Zeitlin, J. Learning from Difference: The New Achitecture of Experimentalist Governance in the EU. Eur. Law J. 2008, 14, 271–327. [Google Scholar] [CrossRef]
  46. Heldeweg, M.A. Legal Regimes for Experimenting with Cleaner Production—Especially in Sustainable Energy. J. Clean. Prod. 2016. [Google Scholar] [CrossRef]
  47. Künneke, R.; Finger, M. The Governance of Infrastructures as Common Pool Resources. In Proceedings of the 4th Workshop on the Workshop (WOW4), Bloomington, IN, USA, 2–7 June 2009; Available online: http://www.indiana.edu/~wow4/papers/kunneke_finger_wow4.pdf (accessed on 29 April 2017).
  48. Polski, M.; Ostrom, E. An Institutional Framework for Policy Analysis and Design. In Proceedings of the Workshop in Political Theory and Policy Analysis, Bloomington, IN, USA, 1999; Available online: https://pdfs.semanticscholar.org/ec83/18779f3f04c6a88cb59cdb338d4d8cde3b85.pdf (accessed on 26 April 2017).
  49. Von Wright, G.H. Norm and Action: A Logical Enquiry; Routledge: London, UK, 1963. [Google Scholar]
  50. Butenko, A.; Larouche, P. Regulation for innovativeness or regulation of innovation? Law Innov. Technol. 2015, 7, 52–82. [Google Scholar] [CrossRef]
  51. Sociaal Economische Raad (SER). The Agreement on Energy for Sustainable Growth. A Policy in Practice (‘Energie-Akkoord’). Available online: http://www.energieakkoordser.nl/~/media/files/energieakkoord/publiciteit/agreement-on-energy-policy-in-practice.ashx (accessed on 29 April 2017).
  52. MacCormick, N.; Weinberger, O. An Institutional Theory of Law. New Approaches to Legal Positivism; Kluwer Academic Publishers: Dordrecht, The Netherlands, 1986. [Google Scholar]
  53. Ruiter, D.W.P. Institutional Legal Facts: Legal Powers and Their Effects; Kluwer Academic Publishers: Dordrecht, The Netherlands, 1993. [Google Scholar]
  54. Ruiter, D.W.P. A Basic Classification of Legal Institutions. Ratio Juris 1997, 10, 357–371. [Google Scholar] [CrossRef]
  55. Ruiter, D.W.P. Types of Institutions as Types of Regulated behaviour. Res Publica 2004, 10, 207–231. [Google Scholar] [CrossRef]
  56. Hindriks, F. Constitutive Rules, Language, and Ontology. Erkenntnis 2009, 71, 253–275. [Google Scholar] [CrossRef]
  57. MacArthur, J. Power Play: Transformation and co-optation in Community Energy Policy. In Proceedings of the ECPR General Conference European Consortium for Political Research, Montreal, QC, Canada, 26–29 August 2015. [Google Scholar]
  58. Simcock, N. Procedural justice and the implementation of community wind energy projects: A case study from South Yorkshire, UK. Land Use Policy 2016, 59, 467–477. [Google Scholar] [CrossRef]
  59. Devine-Wright, P. Explaining “NIMBY” Objections to a Power Line. The Role of Personal, Place Attachment and Project-Related Factors. Environ. Behav. 2012, 39, 1–21. [Google Scholar]
  60. Ishkanian, A.; Szreter, S. (Eds.) The Big Society Debate: A New Agenda for Social Policy? Edward Elgar: Cheltenham, UK; Northampton, MA, USA, 2012. [Google Scholar]
  61. Electricity Act (EA). Wet van 2 Juli 1998, Houdende Regels Met Betrekking Tot de Productie, Het Transport en de Levering van Elektriciteit (Elektriciteitswet 1998). Available online: http://wetten.overheid.nl/BWBR0009755/2016-07-01 (accessed on 30 April 2017).
  62. Dutch National Renewable Energy Action Program (NREAP). 2010. Available online: http://ec.europa.eu/energy/en/topics/renewable-energy/nationalaction-plans (accessed on 30 April 2016).
  63. Crown Decree (2015) on Experiments in Decentralized Sustainable Electricity Generation; Besluit Experimenten Decentrale Elektriciteitsopwekking, OJ 2015, 99 (Entry into Force: 1 April 2015). Available online: http://wetten.overheid.nl/BWBR0036385/2015-04-01 (accessed on 30 April 2017).
  64. Heldeweg, M.A. Experimental Legislation concerning technological and governance innovation & governance innovation—An analytical approach. Theory Pract. Legis. 2015, 3, 169–193. [Google Scholar]
  65. Verbong, G.P.J.; Beemsterboer, S.; Sengers, F. Smart grids or smart users? Involving users in developing a low carbon electricity economy. Energy Policy 2013, 52, 117–125. [Google Scholar] [CrossRef]
  66. Williamson, O.E. Transaction Cost Economics. In Handbook of New Institutional Economics; Menard, C., Shirley, M.M., Eds.; Springer: New York, NY, USA, 2005; pp. 41–65. [Google Scholar]
  67. De Ridder, J. Over bastaards en kruisbestuiving. Naar een taxonomie van organisatorische hybriditeit. Bestuurswetenschappen 2010, 4, 69–85. [Google Scholar]
  68. Heffron, R.J.; Darren, M.; Benjamin, S. Resolving society’s energy trilemma through the Energy Justice Metric. Energy Policy 2015, 87, 168–176. [Google Scholar] [CrossRef]

Article Metrics

Citations

Article Access Statistics

Journal Statistics
Multiple requests from the same IP address are counted as one view.
Download PDF
Predicting Energy Consumption and CO2 Emissions of Excavators in Earthwork Operations: An Artificial Neural Network Model
Previous
Spatial Variations and Determinants of Per Capita Household CO2 Emissions (PHCEs) in China
Next