Beyond Decarbonisation: Two Challenges for the Twin Energy Transition

1. Introduction: Climate Governance at a Critical Juncture

Elisa Morgera’s 2026 Montesquieu Lecture arrives at a moment of acute political and legal tension. Intensifying climate impacts across the globe, like soaring heatwaves,¹ floods,² and wildfires,³ coexist with visible greenlash policies at national and international levels, while expanding climate litigation strategies trigger far-reaching judicial decisions.⁴ The reformist consensus that linked the Paris Agreement, the Sustainable Development Goals, and gradual climate policy has weakened if not vanished.⁵ Yet moments of sociopolitical dislocation can also open space for ‘great transformations’.⁶ Morgera’s lecture intervenes in precisely that critical juncture.

Its central claim is that climate law must move beyond an emissions-centred paradigm. The ‘carbon tunnel vision’ driving conventional climate policy obscures the ecological, distributive, and cultural harms produced throughout the fossil-fuel life cycle. In its place, Morgera advances a human-rights imperative of ‘defossilisation’ (rather than mere ‘decarbonisation’), grounded in the protection of interconnected life-supporting systems and oriented towards care, solidarity, and self-determination. This commentary asks what that programme entails for energy law and policy, a particularly relevant field as it shapes the fossil-derived infrastructures and transactions responsible for around 75% of the greenhouse-gas emissions driving the exponential levels of global warming.⁷ After examining the significance of Morgera’s intervention from an energy law and policy perspective (Section 2), I explore two challenges that are crucial to Morgera’s transformative aspirations: the challenge of legal re-formalisation (Section 3) and the challenge posed by the twin -digital and green- energy transition (Section 4). The conclusion argues that both mark important new horizons for human-rights-based climate law and action (Section 5).

2. Morgera’s Trans-formative Intervention

Energy systems remain heavily dependent on fossil fuels (coal, oil and gas), which are carbon-intensive ways to power our societies and economies.⁸ At the backdrop of the existential risks posed by the exponential global warming, climate law and policy has responded through two overlapping strategies: changing energy inputs by scaling renewable and other low-carbon sources and electrifying end uses; and changing energy outputs through efficiency, carbon capture and related emissions-management techniques.⁹ Both strategies are necessary to existing net-zero programmes, but their shared focus on carbon performance can leave the deeper organisation of energy systems untouched.

Energy systems are not merely technical assemblages. They comprise the primary resources, infrastructures, technologies, institutions, and actors through which energy is produced, converted, transported, and delivered as electricity, heat, cooling, and mobility. Although historically organised around national sovereignty, energy systems are materially transnational. Energy regularly flows across national borders, and these flows are reliant upon capital, data, and a range of infrastructures -like transmission grids, pipes, and ships- whose control shapes security, dependence, and geopolitical power (as the current weaponization of energy dependencies in the context of the ongoing warfare in Ukraine and Iran vividly reminds).¹⁰

The legal organisation of transnational energy systems is equally composite. International trade and investment law, commercial law, the law of the sea, environmental law, human-rights law, and domestic energy regulation all govern different facets of energy supply chains. Yet this legal plurality is not neutral. The prevailing architecture gives structural priority to energy transactions, investment protection, and market ordering, while environmental and human-rights norms often appear as external constraints that must justify interference with economic activity.¹¹ The result resembles a transnational lex mercatoria of energy: socio-ecological harms are treated as an externality to be eventually internalised, rather than as a constitutive feature of how energy systems and relations are legally organised.¹²

Morgera’s intervention is trans-formative because it contests that hierarchy. Her reading of the recent climate advisory opinions situates the climate system within interconnected life-supporting systems and relates their protection to the conditions for enjoying human rights. Defossilisation, on this account, is not simply the replacement of one fuel with another or the mitigation of the socio-environmental impacts of certain energy endeavours. It is a demand to reorganise the legal purposes and distributive terms of energy systems. The relevant measure of success is no longer only tonnes of carbon avoided, but whether law ceases to render communities, territories, and futures disposable.

This is a strong reconstructive claim. To the extent that law is a formalized system of norms whose function is to structure sociopolitical relations by stabilizing normative or cognitive expectations in societies,¹³ a programme that seeks to replace sacrifice with care must therefore alter not only policy objectives. It must also adapt the legal forms through which energy is owned, financed, priced, permitted, transported, and consumed.¹⁴ At least two difficulties thus follow.

3. The Challenge of Legal Re-formalisation

The first is a problem of institutional translation. Morgera’s lecture is persuasive at the level of international legal interpretation and normative vision. Energy governance, however, operates through detailed and often highly technical regulatory regimes. The trans-formative question is thus how care, solidarity, and self-determination can become part of the ordinary grammar of those regimes, rather than remaining external principles invoked only after harm or some scandal has occurred?

EU energy law illustrates the difficulty. Its acquis encompasses a dense legal and institutional ecosystems, including wide-ranging legislation, multilevel regulators, transmission-system operators, network codes, market coupling schemes, capacity mechanisms, competition and State-aid disciplines, infrastructure planning, and consumer protection.¹⁵ Within that dense architecture, what would it mean to make care a substantive criterion for permitting, tariff design, or network development? How should full life-cycle human-rights impacts shape renewable deployment, public support, and strategic-autonomy policies? And how should accelerated permitting be reconciled with the lecture’s insistence on avoiding new sacrifice zones for biodiversity and communities affected by those large-scale renewable projects, whether inside and outside the EU?

These are not mere issues of (monist/dualist) international legal implementation. If we follow Morgera in acknowledging that the problem is not only how to urgently move towards net-zero energy systems but the sacrificial mode of governance immanent in this ‘carbon tunnel vision’, this first challenge is thus to identify the points within energy law and policy where that sacrificial mode is encoded and how it can be juridically displaced. In other words, translating Morgera’s renewed account of international human rights law into the daily operations of energy law and governance requires its re-formalization: thoroughly revising the requirements, procedures, and institutional mandates through which energy relations acquire legal form in function of this transformative climate vision. Recent work on the translation of human-rights norms into complex regulatory regimes shows why this cannot be achieved by simple hierarchical imposition or doctrinal transplantation.¹⁶ Given that there is no sociopolitical trans-formation without its correlated legal institutionalization, this is, I think, an essential condition of possibility for Morgera’s provocative argument to become genuinely trans-formative. Without such institutionalisation, ‘care’ risks remaining an inspirational vocabulary rather than a governing principle.¹⁷

4. The Challenge of the Twin Energy Transition

The second challenge arises from the accelerating digitalisation of energy systems. The green and digital transitions are often presented as parallel policy programs, but the idea of a twin transition captures their interdependence. Within energy systems, smart grids, automated demand response, digital twins, data spaces, and artificial intelligence can improve forecasting, integrate distributed resources, and enhance system flexibility. At the same time, digital infrastructures have their own energy, water, mineral, and land requirements, as well as consequences for labour, biodiversity, and development.¹⁸ This tension is particularly salient in the European Union, which has made digitalisation and AI central to energy security and meeting its climate commitments.¹⁹

Morgera’s critique of the prevailing ‘carbon tunnel vision’ should therefore be extended to digital solutionism. Digital technologies are not neutral tools added to an otherwise unchanged energy system. They are socio-technical architectures that redistribute visibility, knowledge, and control. Smart meters and predictive demand response may improve efficiency, but they can also intensify household surveillance, enable opaque profiling, and expose consumers to automated decisions they cannot meaningfully contest. Data-driven flexibility markets may create value, yet allocate it asymmetrically between households, aggregators, utilities, and platform providers. These risks are especially acute for low-income households, tenants, and digitally excluded users, whose capacity to refuse data extraction or respond to dynamic energy prices is constrained.²⁰ Nor is the distributive issue confined to consumers. Control of energy data can shift authority from public regulators and network operators towards technology vendors, cloud providers, and powerful intermediaries. That concentration may narrow public capacity to inspect systems, change suppliers, or determine the purposes for which collectively generated data are used. Digitalisation thus raises questions of infrastructural power, not merely privacy.²¹

As a UN Special Rapporteur for Climate Change, Morgera has a 2026 call for input on climate-related technologies that provides a timely opening to address these questions, as it expressly includes AI and seeks a full life-cycle assessment of regulation, testing, deployment, participation, and remedy of these technologies.²² From the perspective of the twin energy transition, at least two considerations deserve emphasis. First, human-rights due diligence must reach the design of digital energy infrastructures. Data access, interoperability, algorithmic accountability, cybersecurity, non-discrimination, and effective contestation should be treated as constitutive conditions of legitimate deployment, not corrective safeguards. Digital infrastructures regulate by configuring what actors can know and do: their codes, standards, and ownership arrangements are therefore part of the purposive ordering of the energy transition to meet climate imperatives.²³

Second, a full life-cycle approach must confront digitalisation’s material footprint. AI-enabled grids, sensors, semiconductors, data centres, and cloud platforms depend on minerals, water, land, energy-intensive processing, and global supply chains. Their end-of-life waste is similarly displaced across borders. A transition assessed only at the point of use may therefore appear clean while reproducing extraction and exposure elsewhere.²⁴ The apparent oxymoron of defossilised sacrifice zones generated by digital technologies informing the configuration and operation of green energy systems captures this danger. A human-rights approach must accordingly compare technological pathways rather than evaluate each technology in isolation. It should ask whether lower-impact alternatives exist, whether demand can be reduced, whether affected communities participate in defining acceptable uses, and whether benefits, ownership, and remedial mechanisms are fairly allocated. These are not objections to technological innovation. They are conditions for distinguishing trans-formation from a reproduction of ‘sacrifice zones’ through the affordances provided by digital technologies in those very same defossilised energy systems envisioned by Morgera.

5. Conclusion: New Horizons for Human-Rights-Based Climate Change

Morgera’s lecture compellingly argues that climate law and policy should aim not only at decarbonisation, but at reorganising economies around care. For energy systems, this entails more than accelerating the energy transition through technological innovation.²⁵ It requires identifying where sacrifice is embedded in the legal architecture of energy systems and re-formalising the mandates, procedures, and distributive criteria through which those systems are governed. For the twin energy transition, it also requires treating digitalisation as an object of human-rights governance, attentive both to algorithmic power and to material extraction. The resulting horizon is demanding but precise: a transition is trans-formative only if it changes not merely the carbon intensity of energy systems, but also the legal terms on which societal benefits, risks, and capabilities within these systems are organised.