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Path Dependence in the Legal System – Implications for the Development of Wind Power

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Author(s): Maria Pettersson

Journal: Nordisk Miljörättslig Tidskrift
ISSN 2000-4273

Volume: 2011;
Issue: 2;
Start page: 35;
Date: 2011;
Original page

Keywords: path dependence | wind power

ABSTRACT
Institutional path dependence means that decisions made in the past affect future choices. The core of the formal institutional framework – the legal system – reflects choices already made, while the result of today’s legal application is the basis for future rulings. Since the planning and location of energy installations, such as windmills, typically involves application of legal rules that to various extents are coloured by path dependence, the transformation of the energy system may prove difficult. A more sustainable energy system thus depends e.g. on the design of the institutional framework and whether the law is promoting or counteracting the diffusion of renewable energy technology such as wind power. The aim of this paper has been to analyse the legal implementation of wind power in Sweden on the basis of presumed path dependence. The paper illustrates that the path dependence of the legal regimes affecting wind power development in some instances is significant and that policy implementation therefore may be seriously hampered. The purposes for which expropriation of land is possible in Sweden were for example founded in the early 20th century, a time in which very few thought of producing energy by harnessing wind. Although time has changed, the regulation remains and the rules are – if not hampering – at best neutral vis‐à‐vis wind power development. The resource management provisions under the Environmental Code also show clear signs of institutional path dependence; regardless of repeated criticism from e.g. the Council of Legislation (Swe: Lagrådet) regarding the rules’ applicability the system persists and continues to confuse both legal scholars and practitioners. The municipal planning monopoly and right of veto is another feature of the Swedish institutional framework that produces self‐reinforcing sequences that are hard to breach. And without municipal consent, energy policy, and particularly wind power policy, is very difficult to implement. Although the institutional path dependence suggests a complex and complicated situation, the norms, expectations, traditions, customs etc. that constitute the social structure in which the law is embedded can change, and so can the law. The more recent legal application demonstrates that the law can in fact be applied in favour of wind power development even facing strong preservation interests. This may be a sign of a necessary change happening.
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