On The Legal Regulation Of The Fuel And Energy Complex Functioning In Extreme Conditions: General Approaches (On The Example Of The Coronavirus Pandemic)

Publication type Article
Status Published
Affiliation: Institute of State and Law of the Russian Academy of Sciences
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 4

The author reviews the issues of legal regulation of public relations in the Fuel and Energy Complex of the Russian Federation during the extreme period of the coronavirus pandemic. The author concluded that neither Russia nor any other foreign country had been ready to face the pandemic, both in terms of an action plan arrangement or legislative and regulatory control. Which, among other things, has had a negative impact on the performance of the Fuel and Energy Complex companies. For a radical solution of the issue, the article suggests and substantiates three options with due account for the fact that it is impossible to rule out potential next waves of the 2020 coronavirus pandemic or other global natural or anthropogenic catastrophes. The study was funded by the Russian Foundation for Basic Research within the frameworks of research project No. 20-011-00270.

Keywordsenergy law, coronavirus pandemic, extreme legal regulation
Publication date05.12.2020
Number of characters28923
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1 No one doubts the fact that the 2020 coronavirus pandemic is a natural catastrophe requiring the state to take prompt and extreme measures in every sphere of social and economic life, including such vital sector as the Fuel and Energy Complex. After all, ensuring energy security of our country is a strategic issue; energy security is part of the national security, while the proper legal regulation for energy security is the cornerstone of energy law order. [1] V.V. Romanova notes that energy security is the key category for energy law, since its proper legal regulation testifies to observing the key principles of energy law. Speaking of legal risks in the sphere of energy security, one means, first of all, the possible occurrence of debatable situations, controversies due to uncertainties in the legal regulation, gaps, conflicts in legal regulation, and the misbalance in the legal status of various participants of public relations. [2]
2 It is evident that Russian energy strategy up to 2035 as approved by the Order of the Government of the Russian Federation dated June 9, 2020, is a reaction to the coronavirus pandemic, which, without doubt, represents a real threat to energy security, including, first of all, a threat to consistent uninterrupted operations of the Fuel and Energy Complex enterprises. The potential extreme impact of the coronavirus pandemic on such sphere as nuclear energy seems even more dangerous (the problematics of legal liability for violations in this field have been analyzed in legal literature, [3] however, such analysis does not cover periods of extreme situations).
3 Article 56 of the Constitution of the Russian Federation provides that in a state of emergency, for ensuring citizens’ safety and protecting the constitutionally established state order, particular limitations may be imposed on rights and freedoms, in accordance with a federal constitutional law, with the scope and timeframes indicated, and that the state of emergency may be declared in the entire territory of the Russian Federation or its particular parts under the circumstances and the procedure as established by a federal constitutional law; at the same time, the said article of the Constitution of the Russian Federation lists the rights and freedoms that cannot be limited.
4 However, with the coronavirus pandemic rapidly growing since March 2020, and covering absolutely all aspects of life in Russia (and in the majority of other countries, but they are not the topic of out article), including numerous facilities of the Fuel and Energy Complex, Federal Constitutional Law (FCL) No. 3-ФКЗ (version dated July 3, 2016) On the state of emergency dated May 30, 2001, has not been utilized. According to Art. 1, Part 1 of the said Law, a state of emergency is defined as a special legal regime for the operation of state and local authorities, business entities (irrespective of their form of incorporation or ownership), their officials, and public associations, which permits, as established by that FCL, particular limitations of the rights and freedoms of Russian citizens, foreign citizens, stateless persons, the rights of organizations and public associations, as well as imposing additional duties on them. According to Article 2 of the said Law, the goals of the state of emergency are eliminating of the circumstances triggering its introduction, ensuring the protection of the rights and freedoms of a person and citizen, as well as the protection of the constitutionally established state order in the Russian Federation. Article 3 of the Law states that the state of emergency may be declared only under the circumstances posing an immediate threat to life and security of citizens or the constitutionally established state order of the Russian Federation, where the elimination of such circumstances is impossible without applying extreme measures. Such circumstances include, but are not limited to: natural and anthropogenic emergencies, emergent environmental situations including epidemics and epizootics occurred due to accidents, hazardous natural phenomena, catastrophes, natural calamities, and other disasters involving (or potentially involving) death of people, damage to health of people or environment, considerable financial losses (or loss of property) and disruption of human living environment and requiring large-scale emergency-and-rescue or other urgent measures. Such state is declared, whether in the entire territory of the Russian Federation or in its particular parts, by a Decree of the President of the Russian Federation with an immediate notification to the Federation Council.
5 But legislative regulation of public relations in Russia in an extreme situation is not limited to the said FCL on the state of emergency (and, if it has not been applied, that means that the legal regime of the state or emergency, curfew time, etc., have not been introduced). However, other acts have been applied.
6 First of all, one should mention (as relevant to our topic) Federal Law No. 68-ФЗ On the Protection of the Population and Territories against Natural and Anthropogenic Emergencies dated December 21, 1994 (as heavily amended). However, one would seriously doubt its fullscope utilization in the then effective version during the coronavirus pandemic, since Article 2 of Federal Law No. 98-ФЗ On Amending Certain Legislative Acts of the Russian Federation on the Prevention and Elimination of Emergency Situations urgently adopted at the onset of the pandemic on April 1, 2020, supplements Part 1, Article 1 of the abovementioned Federal Law dated December 21, 1994 (as amended) as follows: after word “catastrophes” the phrase “the spread of a disease posing a threat to the public” was added. Adding that phrase means, at least, that the federal legislator in adopting and further amending the Federal Law (FL) dated December 21, 1994, have not been perceiving “the spread of a disease posing a threat to the public”, i.e. an epidemic or pandemic, as a natural or anthropogenic “catastrophe”, which shows that the legislator has not eliminated that conceptual (rather than a terminological) gap for more than 25 years.

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