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Electricity transmission pylons beside the gas-fired power plant, operated by Uniper SE, in Irsching, Germany, on Wednesday, July 7, 2021.
Michaela Handrek-Rehle | Bloomberg | Getty Images

LONDON — The Energy Charter Treaty is not widely known, yet it’s feared the influence of this international agreement could be enough by itself to derail hopes of capping global heating to 1.5 degrees Celsius.

The ECT contains a highly contentious legal mechanism that allows foreign energy companies to sue governments over climate action that could hurt future profits.

These “corporate court” cases, sometimes referred to as investor-state dispute settlements, are highly secretive, take place outside of the national legal system and can often lead to far larger financial awards than companies might otherwise expect.

Five fossil fuel companies are already known to be seeking over $18 billion in compensation from governments over energy policy changes and most of these have been brought via the ECT.

For example, Germany’s RWE and Uniper are suing the Netherlands over coal phase-out plans and the U.K.’s Rockhopper is suing Italy over a ban on offshore drilling.

Not only do countries have to get out of that treaty, they have to torpedo it on the way out.
Julia Steinberger
Ecological economist and professor from the University of Lausanne

A spokesperson for Uniper told CNBC: “The Dutch government has announced its intention to shut down the last coal-fired power plants by 2030 without compensation.

“Uniper is convinced that shutting down our power plant in Maasvlakte after only 15 years of operation would be unlawful without adequate compensation.”

RWE said it “expressly supports the energy transition in The Netherlands. In principle, it also supports the measures to reduce CO2 associated with the law, but believes compensation is necessary.”

Rockhopper did not respond to a request for comment.

The number of these corporate court tribunals is expected to skyrocket in the coming years, a trend that campaigners fear will act as a handbrake on plans to transition away from fossil fuels.

Governments that are prepared to implement measures to tackle the climate crisis, meanwhile, could be hit with enormous fines.

“The Energy Charter Treaty is a real trap for countries,” Yamina Saheb, an energy expert and former ECT Secretariat employee turned whistleblower, told CNBC via telephone.

Saheb quit her role with the Secretariat in June 2019 after concluding it would be impossible to align the ECT with the goals of the landmark Paris Agreement. She said any attempt to reform or modernize the treaty would ultimately be vetoed since many member states are heavily reliant on fossil fuel revenues.

Thick smoke, cloud of water vapour comes out of the cooling towers of the lignite-fired power plant Weisweiler of RWE Power AG in Germany.
Horst Galuschka | picture alliance | Getty Images

“If we withdraw, we can protect ourselves, we can start implementing the climate neutrality targets and we can end the promotion of the expansion of this treaty to other developing countries,” Saheb said.

“I think the only way forward is to kill this treaty,” she added. “Either we kill this treaty, or the treaty will kill us.”

The ECT Secretariat was not immediately available to respond when contacted by CNBC.

The treaty has said its fundamental aim is “to strengthen the rule of law on energy issues by creating a level playing field of rules” that help to mitigate the risks associated with energy-related investment and trade.

Who’s involved and how does it work?

The ECT is a unique multilateral framework that applies to more than 50 countries — mostly in Europe and central Asia — and includes the European Union, the U.K. and Japan among its signatories. It is currently looking to expand to new signatory states, particularly in Africa, Asia and Latin America.

Signed in 1994, the ECT was primarily intended to help protect western companies investing in former Soviet Union countries in the post-Cold War era. It was also designed to help overcome economic divisions by ensuring a flow of western finance in the east through binding investment protection.

It has since been sharply criticized by more than 200 climate leaders and scientists as a “major obstacle” to averting climate catastrophe.

Dozens of people walk through water due to heavy rains causing flooding in Dhaka, Bangladesh on October 7, 2021.
Sumit Ahmed | Eyepix Group | Barcroft Media | Getty Images

“I think the treaty is probably by itself enough to kill 1.5 [degrees Celsius],” Julia Steinberger, ecological economist and professor from the University of Lausanne, told CNBC.

“I know that 1.5 is a very tight target and there are a lot of things that can blow it, but it is because it basically saves fossil fuel industries … from the financial collapse that they should face for their risky — and honestly criminal — investments in a harmful technology.”

Corporate court hearings brought via the ECT take place in private and investors are not obliged to acknowledge the existence of a case, let alone reveal the compensation they are seeking.

The average cost of investor-state dispute settlement cases is estimated at roughly 110 million euros ($123.9 million), according to an analysis of 130 known claims by think tank OpenExp, and the average cost of arbitration and legal fees is thought to be around 4.5 million euros.

International environmental law experts say that even the threat of legal action is thought to be highly effective in chilling domestic climate action — and fossil fuel companies are acutely aware of this.

That’s because governments may struggle to allocate resources to a single issue when accounting for other priorities. The threat of legal action becomes progressively more powerful as the budget of the country involved becomes smaller.

Notably, a ruling in favor of the state does not lead to zero cost for taxpayers because the defendant state must pay for legal and arbitration fees.

“Not only do countries have to get out of that treaty, they have to torpedo it on the way out,” Steinberger said. “And that’s something a unit the size of the European Union could do.”

A spokesperson for the EU was not immediately available to comment when contacted by CNBC.

The EU completed its eighth round of negotiations to modernize the ECT earlier this month, with the ninth round of talks scheduled for Dec. 13.

France, Spain and Luxembourg have all raised the option of withdrawing if the EU’s modernization efforts fail to conform to the Paris accord.

What happens if countries withdraw?

Italy withdrew from the ECT in 2016, but it is currently being sued because of a 20-year “sunset clause” which means it is subject to the treaty through to 2036.

Around 60% of cases based on the treaty are intra-EU, with Spain and Italy thought to be the most sued countries. Saheb said that given most of these cases are within the bloc itself, a coordinated withdrawal would likely kickstart a domino effect, with states such as Switzerland, Norway and Liechtenstein seen as likely to follow suit.

And if the bloc were to withdraw from the treaty collectively, member states could agree to remove the legal effects of the sunset clause themselves.

“That sunset clause is much longer than many sunset clauses in other treaties but is also completely incompatible with the notion that regulations need to evolve with the changing reality of climate change, to the changing demands of safeguarding the environment and human rights,” Nikki Reisch, director of the Climate & Energy Program at the Center for International Environmental Law, told CNBC.

“There’s a really strong case to make that the application or enforcement of that sunset clause is contrary to other principles of international law,” she added.

A view of open freight wagons full of coal under smog during a day that the level of PM2.5 dust concentration amounted to 198 ug/m3 on February 22, 2021 in Czechowice Dziedzice, Poland. The central eastern European country has the EU’s worst air, according to a report published by the European Environment Agency (EEA).
Omar Marques | Getty Images News | Getty Images

The European Court of Justice ruled in early September that EU energy companies could no longer use the treaty to sue EU governments. The verdict significantly limits the scope of future intra-EU cases and has thrown the legitimacy of a number of ongoing multi-billion-euro lawsuits into question.

“We are not out of the woods yet,” Reisch said. The ruling was an important step to blunting an instrument designed to protect fossil fuel investors, she said, but it does not take arbitration cases by investors domiciled outside of the EU off the table.

“We can’t let our ability to confront the greatest crisis that we have ever faced as humankind, arguably, be held hostage to the interests of investors,” Reisch said.

“I think it is just another reminder of the need to eliminate those legal structures and fictions that we’ve created that really do lock us into a bygone era of fossil fuel dependence.”

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Rivian (RIVN) Q1 results – revenue beat, earnings miss, Q4 profit reaffirmed

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Rivian (RIVN) Q1 results – revenue beat, earnings miss, Q4 profit reaffirmed

Rivian has released its Q1 2024 results, slightly beating analyst estimates on revenue, which grew sharply year-over-year, but with wider losses than expected and only slight gross margin improvement as it still hopes to turn some quarterly profit by the end of the year.

Electric truck maker Rivian announced its results after the bell today, capping off a quarter that has seen difficulty for some EV makers.

Rivian previously announced that deliveries remained flat between Q4 and Q1 at 13,588 units, but were up 71% since the same quarter last year. Rivian says it achieved 5.1% market share in US EVs in Q1, quite a feat for a company that sells only upmarket vehicles, with the R1S being the best-selling EV over $70k

Q1 tends to be a down quarter for vehicle deliveries, so year-over-year numbers are often used – though with EV makers experiencing rapid growth, quarterly numbers can still be useful.

Analysts estimated that Rivian would bring in $1.175 billion in revenue this quarter, with a loss of $1.15 per share.

Rivian’s actual results, announced today, show that it beat the analysts with $1.204 billion in revenue, but had wider losses than expected at -$1.48 per share. Revenue improved by 82% year-over-year. Rivian ended the quarter with $7,858 billion in cash, down from $9,368 billion at the end of Q4 2023.

Gross margin on vehicles improved slightly, with a loss of $38,784 per vehicle as opposed to $43,372 per vehicle in the previous quarter. The gross margin improvement shows progress, but gross margins are still worse than they were in Q2 and Q3 of last year, at -$32k and -$30k respectively.

However, Rivian has just completed a plant shutdown, which started on April 5, and thus isn’t captured in this quarter’s results. The plant reopened on May 1.

This shutdown was focused on retooling to improve margins, and Rivian says it could increase efficiency by 30%. Rivian sees “significant progress” on cost optimization already, and says that it expects slight positive gross profit in Q4 of this year. We’ll expect to hear more about how the shutdown went on the company’s earnings call at 2PM PDT/5PM EDT today.

It’s also the first earnings call since Rivian’s R2/R3 unveiling event. These are Rivian’s two upcoming vehicles, with which it plans to move downmarket and into higher volume spaces. The R2 will start around $45k in the first half of 2026, while the R3 timeline and cost have not yet been announced.

Along with that event, Rivian announced that it would move production forward for the R2, by building it at its existing plant in Normal, IL, rather than a planned future plant in Georgia. This will bring Normal’s production numbers up to 215k units of total capacity per year across all products.

The main reason for this is to reduce capex in the short-term by $2.25 billion, saving the company cash in a time where fundraising is more difficult than it has been in the past. Rivian also recently cut 1% of jobs in service of these cost savings.

As part of today’s release, Rivian also reduced capex guidance for 2024 to $1.2 billion, down from $1.75 billion. It expects to save money in 2025 and 2026 from the decision to move R2 production to Normal, as well.

Otherwise, Rivian reaffirmed its full year 2024 guidance of 57,000 units production and a $2.7 billion loss, though it expects slight gross profit in Q4.

Rivian (RIVN) closed down 0.77% today, after opening high in response to rumors about a partnership with Apple, but giving back the gains throughout the day. RIVN is currently down 2-3% in aftermarket trading as we await the earnings call, where we expect a question (and likely non-answer) about the Apple rumors.

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BYD’s home city in China now has more supercharging plugs than gas pumps

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BYD's home city in China now has more supercharging plugs than gas pumps

Shenzhen, the home of Chinese EV giant BYD, says it’s become the first in China to have more supercharging plugs than gas pumps.

As Electrek reported in April, BYD received direct government subsidies of “at least” $3.7 billion to grow its EV business and undercut the competition with aggressively low pricing. So all those cheap EVs need to be fast-charged, and what better place to expand than BYD’s home city?

In June 2023, Shenzhen unveiled its first fully liquid-cooled supercharging prototype station as part of its “City of Supercharging” plan, in which it set a goal to build as many supercharging stations as gas stations by 2025. And these “superchargers” aren’t just DC fast chargers – they can charge EVs to 80% in just 10 minutes.

Shenzhen had 362 supercharging stations as of April 30, according to the latest data released by the city, but it didn’t say how many gas pumps there are. They’ve been conveniently sited in commercial complexes, bus stops, and industrial parks.

According to data from the Southern Power Grid Shenzhen Power Supply Bureau, Shenzhen’s EV charging volume reached 670 million kilowatt-hours in Q1 2024, an 11% increase year-over-year. So, the city has to plan carefully so as not to overburden the grid as both EVs and superchargers rapidly come online.

The city of 12.5 million people has been an electrification leader for some time; in 2017, it completely electrified its bus fleet with more than 16,000 electric buses, and its taxis became electrified in 2019.

China leads the world in renewables and EV growth, but it’s also the No 1 emitter of harmful greenhouse gases.

Read more: In 2023, investment in clean energy manufacturing shot up 70% from 2022


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Despite Elon Musk’s foolishness, auto industry shouldn’t give up on NACS

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Despite Elon Musk's foolishness, auto industry shouldn't give up on NACS

Tesla CEO Elon Musk is causing chaos in the EV industry by firing Tesla’s entire charging team, which may lead some automakers to reconsider their plans to adopt the NACS plug. But NACS is just a better standard, and the industry should move forward on it, even if Tesla waffles with its commitment.

Last week, Tesla abruptly fired its entire Supercharging team, leading to an immediate pullback in Supercharger installation plans. The explanation we’ve heard for these firings is that CEO Elon Musk was unhappy with EV Charging lead Rebecca Tinucci for not firing enough people, and retaliated by suddenly firing her and her entire team.

The firing was so ill-considered that the company has even had to send out an email blast to suppliers and contractors, seemingly confused about which companies it’s even working with on site development.

The abrupt firing has caused a lot of chaos and reconsideration in the EV industry, with some automakers reportedly having meetings about whether to proceed with the planned NACS transition or pull back on their plans.

Currently, EVs from Ford and Rivian can charge on Tesla’s Supercharger network through adapters, but other automakers can’t yet. Tesla planned to roll out support to more brands this spring (GM, Volvo, Polestar), with more coming later. Virtually every brand has announced they will adopt NACS in the next couple years.

But this Supercharger rollout to other automakers will likely be slowed down, as the Supercharger team was the group responsible for onboarding other automakers, and for advancing the whole idea of NACS in the first place.

As a result there have been questions swirling about whether this could spell doom for NACS, potentially being an end to the standard as everyone switches back to CCS.

Is NACS going to die? It shouldn’t, here’s why

First, I don’t think NACS is going to die. Tesla will still use it, and is still the biggest EV brand in North America. While firing the whole team is a petty and incomprehensible move, I expect that the company will eventually come to its senses and hire some people back into that department, and continue to develop and install its charging system, though this will still be a huge setback.

The thing is – NACS is overall just a better standard than CCS. That’s why, when SAE certified the standard, we wrote that “it’ll fix every charging problem at once” (maybe not quite every problem, but close). The cable and connector are easier to use, its 277V support is better for commercial installations, its provision for carry-along cables is better for public infrastructure (especially street parking) and more interoperable with international receptacles.

Also, NACS is now out of Tesla’s hands. The SAE certification for NACS, which it calls J3400, is already finished. So it’s a real standard, and it’s a standard that Tesla no longer has control over. Other companies can make NACS ports and NACS chargers and all the technical information needed is out there and open for use. It’s only Supercharger network compatibility that is in Tesla’s hands (and if they want NEVI funds, they’re going to have to allow other brands to charge at their chargers).

And now that the whole industry already decided to convert to NACS (which is a tough thing to get everyone to agree on), it also puts to bed the format war that we might have had between Superchargers and CCS.

It would be one thing to convert from one standard to another and leave everyone out in the cold, but the industry has already started planning this conversion, and adapters are available. There will be a transition period where CCS and NACS chargers both remain available, so most people shouldn’t have trouble finding a charge.

But it does make sense to collapse down to one standard, and it makes sense to collapse down to the better one.

And so, rumors that manufacturers are considering reversing their NACS transition plans will hopefully not come true. Manufacturers should continue forward in transitioning and getting NACS ports on their vehicles as soon as possible, third parties should focus primarily on installing NACS chargers to pick up the slack left by Tesla’s pullback (with some CCS during the transitionary period), and Tesla should rehire a division to ensure that the transition goes smoothly (you already had one and firing them was stupid).

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