Legal regimes for experimenting with cleaner production – Especially in sustainable energy

The purpose of this article is to determine what legal design opportunities exist to accommodate legally disruptive experiments that are concerned with technological and/or governance innovation towards enhanced sustainability, with a smart energy system focus of application. The legal design approach is used to clarify types of general legal frames (or regimes); frames that create a legal space that provides either exceptional legal permissions and/or legal abilities for experimentation. As results of the analysis in this article bring to light that there are two main types of legal frameworks for experimentation. The first is experimentation by exceptional derogation from existing legal rules in the hope that experimental findings may lead to cleaner practices accommodated by adjusted legal rules. The case of the Dutch regime for experimenting with prosumerism in smart energy grids is used as an example of this type. The second type is that of experimentation by devolution, whereby a distributed variation of approaches to a similar policy challenge is allowed within a broader framework that holds guidelines for relevant epistemic and legal concerns. The case of the EU Renewable energy directive is used as an example. The functioning of both types of experiments is placed in the context of collective action challenges, using the ILTIAD-framework for analysis and design, which combines Ostrom's IAD-framework and Institutional Legal Theory. The main conclusions of this article are that we need to carefully understand the different types of legal regimes for experimentation, especially in relation to normative positions, types of legal abilities and permissions. Further, it becomes clear that guidelines are needed as regards both epistemic values, on the issues of experimental safety and on safeguarding that experimental results are properly evaluated, and legal values, such as on the issue of precaution, legal certainty and legal equality. Finally, the analysis in this article underscores the importance of experimentation (by devolution and/or derogation) as a mechanism of collective action feedbacks towards innovation of law, governance and technology, such as in the area of the energy transition.