No Free Passes: Making Renewable Energy Responsible
By Sam Szoke-Burke and Kaitlin Cordes
October 17, 2016
Clean energy projects cannot be considered “responsible investments” without respecting land rights
The impacts of climate change, which stand to affect all of humanity, create a dire need for innovations in how humans access energy. Obtaining energy from renewable sources can help shift industry and public energy consumption away from the burning of fossil fuels, which is the world’s primary cause of carbon dioxide emissions. However, as the world rushes to invest in clean energy, the potential impacts of these projects on the rights of local individuals and communities need to be properly addressed.
On-shore renewable energy projects require land for their operations; they thus run the risk of causing adverse impacts on land rights similar to those caused by other types of land-based investments. For example, particularly in places with weak or transitioning land governance systems, these impacts might arise from illegal evictions, inadequate compensation for resettlement, and the failure to obtain free, prior, and informed consent of affected people.
While the negative impacts of large-scale hydroelectric dams — from Brazil to Turkey to Cambodia — have received a great deal of media and civil society attention, the adverse effects of other types of renewable energy projects also require careful consideration and targeted action by governments, companies, and financing institutions.
Solar energy, for instance, is a promising source of renewable energy, but requires large amounts of flat land to generate electricity on a utility-scale. This is often the same land that rural communities use for agriculture or the grazing of livestock, thus presenting the potential for conflict, in certain contexts, between the land rights of community members and the land needs of solar energy projects.
Wind energy is the second-largest source of renewable energy, and typically requires a smaller land footprint than other energy sources. Some wind farms can also be set up while allowing for, and even potentially improving, farming on nearby land. Yet even if wind farms are less physically disruptive than alternatives, nearby communities can still have land-related grievances—for example, regarding failures to recognize communal ownership of, and inadequate consultation and compensation regarding, land on which wind turbines are installed.
The potential land rights impacts of geothermal energy generation are significant, although comparatively unexplored. As this renewable energy source is currently under-utilized, relatively few instances of associated community grievances have been reported to date. This could change in the future. As with sub-surface minerals, many governments are likely to claim ownership over geothermal resources—regardless of who has rights to the surface land—based on national laws allocating ownership of subterranean resources to the government. This, along with the accompanying need for land for drilling and related infrastructure, creates the potential for evictions or other disruptions of access to land, with corresponding implications for livelihoods and well being.
Renewable projects may also indirectly affect land rights. The storage of clean energy from these projects may involve increasing reliance on batteries made from lithium-ion and other minerals to level out variable power flows from wind and solar plants. The extraction of those minerals brings additional threats to the land rights of individuals and communities near the mining sites.
Human rights and equity concerns
The potential adverse impacts of renewable energy projects extend beyond threats to land rights. Individuals and communities affected by renewable projects regularly voice complaints regarding failures to obtain their free, prior, and informed consent, and the resulting resettlement can impact on many economic, social and cultural rights. Some projects also negatively affect productive resources on which local people rely: geothermal projects, for example, can exhaust available water resources. Community opposition to renewable projects has also been met with violence—and even assassination—of community organizers. Apart from the direct human rights impacts, some renewable energy projects also raise concerns around equity, by overlooking the energy needs of nearby communities in favor of energy generation for the exclusive use of investors or for sale to other regions or countries. This leads to questions regarding who benefits and who loses from renewable projects, and how benefits can be more equitably shared with the communities asked to bear the highest burdens.
The way forward
Renewables can divert demand for fossil-fuel-based energy, which benefits everyone, including communities reliant on natural resources and populations in low-lying areas. That said, the climate benefits of such projects do not give renewable energy investments a free pass: the responsible implementation of these projects requires that governments, financiers, and energy companies comply with international best practices to ensure that land rights and human rights are respected.
So what practices should renewable projects adhere to?
Certain performance standards for the renewables sector could do more to explicitly address land rights. For example, the Solar Industry Environment & Social Responsibility Commitment contains provisions on human rights and environmental protection, yet fails to mention land at all. A second, Equitable Origin’s EO100 Standard of certification, has detailed provisions on human rights, resettlement, and benefit sharing. EO100 is currently under review and, promisingly, the current consultation draft of the standard has provisions on the need to respect land rights that are legally or “socially” recognized. More generally, and as advocated for by USAID, renewable projects should follow practices outlined by the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests, which set out that businesses have a responsibility to respect “legitimate tenure rights,” including customary tenure rights, even when such rights are not recognized or protected by domestic law.
Clean energy projects should also obtain the free, prior, and informed consent of indigenous, tribal and other communities that stand to be affected by a project. This means ensuring that such communities are sufficiently informed and capacitated, and afforded an opportunity to participate in decision-making — both about whether the project will proceed and, if so, on what terms.
Conducting adequate human rights due diligence and impact assessments (that consider land rights issues) is also essential for avoiding adverse impacts. Such processes should be adapted to local contexts and can also be driven by communities themselves or used as a vehicle for collaboration between community members and other stakeholders.
In line with the Basic Principles and Guidelines on Development-Based Evictions and Displacement and the EO100 Standard, forcible resettlement of local individuals and communities should be avoided. When a government seeks to argue that resettlement is necessary for public purposes, it must incorporate meaningful, rights-compliant consultation and consent processes, which should also feed into any resulting resettlement plan or compensation. This might include benefit sharing, such as providing communities and their members with revenues, social services and infrastructure, or shares in the project; such arrangements should be the result of direct negotiations that are undertaken consistently with the principles of free, prior, and informed consent.
Finally, governments, financiers, and energy companies should implement a range of efforts to resolve disputes and provide access to remedy for those aggrieved, including through establishing, and supporting affected individuals or communities to access, dispute resolution processes, such as local courts and tribunals. These can also include “non-judicial” grievance mechanisms, provided that such mechanisms do not replace domestic courts, but rather provide additional ways to address concerns.
Renewable energy is an important means of minimizing the amount of carbon dioxide we emit. Expanding these energy sources is an integral part of moving towards a low-carbon world. Despite their important climate benefits, however, renewable projects cannot be considered to be “responsible” unless they are implemented consistently with international best practices to ensure the protection of local land rights and other human rights.
Sam Szoke-Burke is a legal researcher for the Columbia Center on Sustainable Investment’s focus areas of land and agriculture, and extractive industries. He also specializes in the intersection of human rights and international investments. Kaitlin Cordes is Head of Land, Agriculture, & Human Rights at the Columbia Center on Sustainable Investment (CCSI).