May 24, 2018 - ... in 11 M Law & Policy Ltd and ember States of the Recommendation ...... Studien/pp_in_e_report_03_06.pdf> accessed 15 February 2018, 16, 21. ...... head/mayor/city president (wójt/burmistrz/prezydent miasta) needs to ...
Grant agreement No. 640979
ShaleXenvironmenT Maximizing the EU shale gas potential by minimizing its environmental footprint H2020-LCE-2014-1 Competitive low-carbon energy
D11.1 Regulatory framework on environmental impacts and community acceptance of shale gas WP 11 – Suggestions for Policy Formulation
Due date of deliverable
28/02/2018 (Month 30)
Actual submission date
24/05/2018 (Month 33)
Start date of project
September 1st 2015
Duration
36 months
Lead beneficiary
UCL
Last editor
Jędrzej Górski and Christine Trenorden
Contributors
UCL
Dissemination level
Public (PU)
This Project has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement no. 640979.
Deliverable D11.1
History of the changes Version
Date
Released by
Comments
1.0
22-05-18
Jędrzej Górski and Christine Trenorden
First draft
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Table of contents HISTORY OF THE CHANGES ............................................................................................................................. 2 TABLE OF CONTENTS ...................................................................................................................................... 3 KEY WORD LIST ............................................................................................................................................... 6 DEFINITIONS AND ACRONYMS........................................................................................................................ 6 1.
INTRODUCTION ............................................................................................................................. 8
1.1.
EU’s action on the regulatory environment for the shale gas industry ............................................... 8
1.1.1. 1.1.2. 1.1.3. 1.1.4. 1.1.5. 1.1.6. 1.1.7. 1.2.
Declining market conditions ........................................................................................................... 8 Great expectations.......................................................................................................................... 9 EU’s regulatory approaches to 2014 ............................................................................................... 9 Recommendation of 2014 ............................................................................................................ 13 Implementation of the 2014 Recommendation ........................................................................... 15 Research under Horizon 2020 scheme ......................................................................................... 16 Challenges ahead .......................................................................................................................... 18
The Report ....................................................................................................................................... 18
1.2.1. 1.2.2. 2.
Purpose of the Report................................................................................................................... 18 Structure of the Report ................................................................................................................. 19 BACKGROUND ............................................................................................................................. 20
2.1.
The case for shale gas in the EU ....................................................................................................... 20
2.1.1. 2.1.2. 2.1.3. 2.2.
Shale gas related problems .............................................................................................................. 23
2.2.1. 2.2.2. 2.2.3. 2.3.
Transition to decarbonised economy ........................................................................................... 20 Security of supplies ....................................................................................................................... 21 Shale gas related opportunities in public opinion ........................................................................ 22
Shale gas-specific investment process .......................................................................................... 23 Shale gas-specific environmental risks ......................................................................................... 24 Access to land and infrastructure ................................................................................................. 24
Fracking in the public opinion .......................................................................................................... 26
2.3.1. Shale gas related consultations .................................................................................................... 26 2.3.1.1. Individual responses ................................................................................................................ 26 2.3.1.2. Responses by private organisations ......................................................................................... 27 2.3.1.3. Responses by public authorities .............................................................................................. 27 2.3.2. Eurobarometer ............................................................................................................................. 28 2.3.2.1. Eurobarometer 360 .................................................................................................................. 28 2.3.2.2. Eurobarometer 420 .................................................................................................................. 28 2.3.3. Petitions to the European Parliament .......................................................................................... 29 2.4. 3.
The SLO concept ............................................................................................................................... 31 LEGISLATIVE LEVEL....................................................................................................................... 33
3.1.
Law making in the EU ....................................................................................................................... 33
3.1.1. EU’s shale-related competences................................................................................................... 33 3.1.1.1. EU’s exclusive competence ...................................................................................................... 33 3.1.1.2. EU’s shared and supplementary competence ......................................................................... 34 3.1.1.3. Proportionality and subsidiarity principles .............................................................................. 34 3.1.1.4. Procedural dimension .............................................................................................................. 34 3.1.1.5. No competence areas .............................................................................................................. 35 3.1.2. Public participation in EU lawmaking ........................................................................................... 36 PU
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Deliverable D11.1 3.1.2.1. Public participation under the Treaties.................................................................................... 36 3.1.2.2. Aarhus Convention ................................................................................................................... 37 3.1.2.3. Regulation 1049/2001.............................................................................................................. 39 3.1.2.4. Aarhus Regulation 1367/2006 ................................................................................................. 40 3.1.2.5. Parliament’s rules of procedure............................................................................................... 41 3.1.3. Lobbying........................................................................................................................................ 42 3.1.3.1. Scope of lobbying ..................................................................................................................... 42 3.1.3.2. Lobbying in the Parliament ...................................................................................................... 42 3.1.3.3. Lobbying in the Commission .................................................................................................... 44 3.2.
Law-making in Member States ......................................................................................................... 47
3.2.1. Comparative studies ..................................................................................................................... 47 3.2.2. Poland ........................................................................................................................................... 48 3.2.2.1. Constitution ............................................................................................................................. 48 3.2.2.2. Government Rules of Procedures ............................................................................................ 49 3.2.2.3. Sejm and Senat Rules of Procedures ........................................................................................ 50 3.2.2.4. Lobbying ................................................................................................................................... 50 3.2.2.5. Access to information about legislative works ........................................................................ 51 3.2.2.6. Conducted consultations ......................................................................................................... 51 3.2.3. United Kingdom ............................................................................................................................ 51 3.2.3.1. Participation in the legislative process .................................................................................... 51 3.2.3.2. Lobbying ................................................................................................................................... 52 3.2.3.3. Access to information .............................................................................................................. 53 3.2.3.4. Conducted consultations ......................................................................................................... 54 4.
PLANS AND PROGRAMMES – STRATEGIC ENVIRONMENTAL IMPACT ASSESSMENT (SEIA) .......... 55
4.1.
General ............................................................................................................................................ 55
4.2.
Plans and programmes at the EU level ............................................................................................. 55
4.2.1. 4.2.2. 4.3.
Public participation ....................................................................................................................... 55 Access to justice ............................................................................................................................ 55
Plans and programmes at the Member States’ level/SEA ................................................................. 57
4.3.1. Public participation under the SEA Directive ................................................................................ 57 4.3.2. Public participation under Directive 2003/35 (Public Participation and Access to Justice in Certain Environmental Matters) .................................................................................................................... 59 4.3.3. Access to information and justice ................................................................................................. 60 4.4.
Implementation in member states ................................................................................................... 61
4.4.1. 4.4.2. 4.4.3. 5.
Comparative studies ..................................................................................................................... 61 Implementation in Poland ............................................................................................................ 62 Implementation in the UK ............................................................................................................ 63 PROJECT LEVEL/ ENVIRONMENTAL IMPACT ASSESSMENT (EIA) .................................................. 64
5.1.
General ............................................................................................................................................ 64
5.1.1. 5.1.2. 5.2.
Public participation in EIA ................................................................................................................ 66
5.2.1. 5.2.2. 5.3.
EIA in general ................................................................................................................................ 64 Public opinion ............................................................................................................................... 66
History ........................................................................................................................................... 66 Current EIA Directive .................................................................................................................... 68
Implementation in member states ................................................................................................... 69
5.3.1. Comparative studies ..................................................................................................................... 69 5.3.2. Implementation in Poland ............................................................................................................ 70 5.3.2.1. Mandatory and non-mandatory EIA ........................................................................................ 70 PU
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Deliverable D11.1 5.3.2.2. Public participation .................................................................................................................. 71 5.3.3. Implementation in UK ................................................................................................................... 72 5.3.3.1. Application of EIA to nationally significant infrastructure projects ......................................... 72 5.3.3.2. Public participation in nationally significant infrastructure projects ....................................... 74 5.3.3.3. Implementation in England ...................................................................................................... 75 6.
PUBLIC PARTICIPATION REQUIREMENTS IN OTHER EU LEGISLATION ........................................... 77
6.1.
Relation between SIA and EIA Directives and other acts .................................................................. 77
6.2.
Public participation in Habitats Directive ......................................................................................... 78
6.2.1. 6.2.2. 6.3.
Habitats Directive in general ........................................................................................................ 78 Overlap with the SEA Directive and EIA Directive ........................................................................ 79
Public participation in Birds Directive .............................................................................................. 80
6.3.1. 6.3.2. 6.4.
Birds Directive in general .............................................................................................................. 80 Overlap with the SEA Directive and the EIA Directive .................................................................. 80
Public participation in Water Framework Directive .......................................................................... 81
6.4.1. 6.4.2. 6.5.
Water Framework Directive in General ........................................................................................ 81 Overlap with SEA Directive and the EIA Directive ........................................................................ 82
Public participation in the Industrial Emissions Directive ................................................................. 83
6.5.1. 6.5.2. 6.5.3. 6.6.
Industrial Emissions Directive in General ..................................................................................... 83 Public Participation and access to Information ............................................................................ 84 Access to justice ............................................................................................................................ 85
Other secondary legislation ............................................................................................................. 86
6.6.1. 6.6.2. 7.
Council Directive 98/83 ................................................................................................................ 86 Seveso III Directive ........................................................................................................................ 86 CONCLUSIONS ............................................................................................................................. 88
APPENDIX I
BASIC TECHNICAL TERMS.................................................................................................... 90
1.
DEFINING ‘UNCONVENTIONAL’ ................................................................................................... 90
2.
DEFINING ‘SHALE’ ........................................................................................................................ 91
3.
DEFINING ‘FRACKING’ .................................................................................................................. 92
APPENDIX II
CHRONOLOGY OF EU’S SHALE-RELATED POLICY DOCUMENTS (PRIOR TO 2014) ................. 93
APPENDIX III
EU-PROCURED SHALE STUDIES (SELECTED) ......................................................................... 97
APPENDIX IV
VARIOUS DEFINITIONS OF SLO ......................................................................................... 103
APPENDIX V SELECTED SHALE-GAS-RELATED PETITION SUBMITTED TO THE PARLIAMENT (UNTIL OCTOBER 2017) ......................................................................................................................................... 106 APPENDIX VI
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AUTHORS AND CONTACT INFORMATION ......................................................................... 111
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Key word list EIA; energy law; environmental impact assessment; environmental justice; environmental lobbying; environmental law; EU law; EU energy policy; mining law; shale gas; SEA; SLO; social license to operate; social licensing; spatial planning; public information; public participation; strategic impact assessment; unconventional hydrocarborns, zoning,
Definitions and acronyms Acronyms
Definitions
BGS
British Geologhical Survey
CBM
Coalbed methane
CEO
Corporate Europe Organisation
CTL
Coal to Liquids
DOF
Declaration of Interest
EAGGF
European Agricultural Guidance and Guarantee Fund
EC
European Community
EEA
European Economic Area
EIR
Environmental Information Regulations (UK)
ELO
Economic License to Operate
ESTNUHE
European Science and Technology Network on unconventional hydrocarbon extraction
IEA
International Energy Agency
IGEM
Institution of Gas Engineers & Managers
IMPEL
European Union Network for the Implementation and Enforcement of Environmental Law
IRP
International Resource Panel (United Nations )
EU
European Union
FAO
Food and Agriculture Organization of the United Nations
FoI
Freedom of Information Act (UK)
GTL
Gas-to-Liquids
IUCN
Union for Conservation of Nature and Natural Resources
J&E
Justice and Environment
JRC
Joint Research Centre (European Commission)
LLO
Legal License to Operate
MAPP
Major-Accident Prevention Policy
mD
millidarcy
MP
Polish Monitor, Monitor Polski
NGO
Non-Governmental Organisation
NLGs
Natural Gas Liquids
OJ
Official Journal
ROMP
Reviews of Mineral Planning
SEA
Strategic Environmental Assessment
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SLO
Social License to Operate
UNECE
United Nations Economic Commission for Europe
TEN
Trans-European Networks
TEN-E
Trans-European Networks for energy
TTIP
Transatlantic Trade and Investment Partnership
UFF
Unconventional Fossil Fuels
UNEP
United Nations Environment Programme,
UNESCO
United Nations Educational, Scientific and Cultural Organization
USA
United States of America
USEIA
United States Environmental Information Agency
USGS
United States Geological Survey
WWF
World Wildlife Fund
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1.
Introduction
1.1. EU’s action on the regulatory environment for the shale gas industry1 1)
The chances of the production of hydrocarbons from unconventional deposits2 have been subject to heated debate in the European Union (EU) over the last decade. The prospects for improved energy security in light of diminishing deposits in Europe combined with hope to employ natural gas as the first-choice fuel in a transitional-period toward a decarbonised economy have spoken in favour of policies allowing development of unconventional gas deposits in the EU. However, those prospects have perforce also brought about related environmental concerns, challenging both EU-level and Member-States-level policy makers to tune EU and national regulatory environments so that development of unconventional gas deposits meets broad community acceptance and developers of such deposits obtain a social licence to operate (SLO).3
1.1.1. Declining market conditions 2)
Prima facie, not much remains of the shale gas excitement building over Europe in the early 2010s. The first reality check for Europe’s shale gas prospects came as virtually all major oil companies took a cold shower in Poland after they had invested a great deal of money in prospecting and exploration works in this country. Exxon Mobil left in June 2012 followed by Talisman and Marathon Oil in May 2013.4 Many saw the withdrawal of Chevron in January 2015 as a nail in the coffin of Poland’s shale dream.5
3)
Meanwhile, the prices of hydrocarbons dived sharply. The West Texas Intermediate (WTI) fell from USD107.95 on 20 June 2014 to USD29.44 on 12 February 2016 that is by nearly 73%.6 Estimates of the break-even point for the majority of US shale gas wells ranged from about USD80 to USD45.7 However, costs in the industry were cut sharply as companies were forced to apply more efficient technologies.8 With USD50 per barrel on the horizon in mid2016, many wells were brought back into operation,9 with WTI between USD55 and 60 still necessary for the industry’s true recovery as of March 2017. 10 Nevertheless, low oil prices generally halted new investments in energy projects by the largest companies,11 also
1
Early version of this section 1.1 has been published in Jędrzej Górski, Christine Trenorden ‘EU and regulation of shale industry: where do we stand now? (June 2017) 5 Oil and Gas Law News 20-25. 15 march 2018. 2 On the basic technical terms related to unconventional hydrocarbons, see: Appendix I, point 1. 3 “Public Acceptance is regularly acknowledged as a major constraint to shale gas operations in Europe. A key dimension of this issue relates to the greater sensitivity in Europe Toward activities affecting the environment, health and safety. Several analysts point out that zoning restrictions and tighter regulations on the use of public lands can hinder onshore prospecting for hydrocarbons in much of Europe. In most cases, drilling activities encounter constraints in areas considered out of bounds, such as environmentally protected areas or those in close proximity to building or residential zones.” See Ivan Pearson, Peter Zeniewski, Francesco Gracceva, Pavel Zastera, Christophe McGlade, Steve Sorrell, Jamie Speirs, Gerhard Thonhauser, ‘Unconventional Gas: Potential Energy Markets Impacts in the European Union' European Commission Joint Research Centre Institute for Energy and Transport’ (2012) JRC 70481, EUR 25305 EN, 119. 4 Jędrzej Górski and Sławomir Raszewski, ‘Energy Security or Energy Governance? Legal and Political Aspects of Sustainable Exploration of Shale Gas in Poland’(2014) (3) OGEL 1, at 10, 20. 5 Isabel Ordonez, 'Corporate News: Exxon Ends Drilling For Poland Shale Gas' Wall Street Journal (Jun 19, 2012) B.2. 6 accessed 18 March 2018. 7 'U.S., Canadian shale sectors doomed if oil price drops below USD 45 per barrel' Asia News Monitor (4 Sep 2015 ); Gillian Rich, 'Most Shale Fields To Stay Profitable Despite Oil Slump U.S. Crude Has Fallen 18% But a steeper price drop would hit larger drillers, slow U.S. shale oil boom' Investor's Business Daily (9 Oct2014) A01; G. Rich, 'Top Shale Producers to Report As Oil Price Nears Magic Number' Investor's Business Daily (2 May 2016 ). 8 Erin Ailworth, 'Low Oil Price Ushers in Shale 2.0 - Texas fracker EOG pioneers way to turn profit by extracting crude faster and at less cost' Wall Street Journal (31 Mar 2017) A.1.; Mark P. Mills, 'The Oil Price Swoon Won't Stop the Shale Boom' Wall Street Journal (24 Oct 2014) A.13. 9 Erin Ailworth and Timothy Puko, 'Some Shale Drillers Return to Oil Patch; Devon, Pioneer and other producers boost spending on new wells, as price of crude rises' Wall Street Journal (Online) (21 Aug 2016 ). 10 See n 8. 11 Justin Scheck, 'Crude Oil's Fall Pressures Energy Megaprojects; Oil Industry's Multibillion-Dollar Investments Come Under New Scrutiny' Wall Street Journal (Online) (9 Dec 2014).
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No wonder then that the regulation of the shale gas industry in the EU stopped making headlines after the European Commission released a huge temporary regulatory package in March 2014. It does not mean, however, that there have been no shale gas related developments at the EU’s and Member States’ level, at which we briefly look in this report.
1.1.2. Great expectations 5)
As a reminder, Europe’s shale gas potential was brought to public attention with the report on shale gas deposits outside of the US commissioned by the US Energy Information Administration (USEIA) and released in April 2011.13 Europe on the whole was believed to have 2,587 Tcf of risked gas in-place and 624 Tcf of ‘risked technically recoverable’ gas, of which 30.29% was believed to sit in Poland. Had the larger number been accurate, shale deposit would have covered roughly 335 years of cumulative domestic consumption at 2012 levels, likely turning Poland into a gas exporter from a gas importer (now 60-70 per cent dependant on supplies from Russia).14 Second in Europe came France 28.34%, third Norway with 13.07%, fourth Ukraine with 7.17% and fifth Sweden with 6.45%.15 The UK, which has now grown into regional shale gas leader, was then believed to sit on Europe’s 3.48%, which was only slightly more than Russia’s Kaliningrad Oblast’s share of 3%.
6)
Noteworthy, estimates have gradually declined for Poland and have grown for the UK. The updated USEIA study from June 2013 only slightly reduced technically recoverable gas from 187 Tcf to 147 Tcf in the case of Poland and revised this number up from 20 Tcf to 26 Tcf for the UK.16 However, official domestic studies illustrated this trend much more sharply. The co-operation of the Polish Geological Institute with the US Geological Survey (USGS) produced a short factsheet in 2012, estimating Poland’s potentially recoverable deposit at only between 0 and 4,08 Tcf with a mean estimate of 1,34 Tcf.17
7)
Meanwhile, the British Geological Survey (BGS) assessed in 2013 that there were between 822 and 2281 Tcf with a mean estimate of 1329 Tcf, sitting in the Bowland Basin alone.18 Yet, the BGS declined to estimate how much of that could be recoverable.
1.1.3. EU’s regulatory approaches to 2014 8)
The hype over the potential shale gas Eldorado soon engaged the politicians to step up both at the EU and Member State levels. France first dropped out of the shale gas game of its own accord in July 2011 by prohibiting exploration and extraction of hydrocarbons through fracking and by cancelling previously granted permits.19 Bulgaria issued a similar ban along with the cancellation of one permit held by Chevron in January 2012.20
12
Adam Vaughan, 'All out for shale? Only 11 wells are due to be drilled in UK this year: Fracking drive fails to fly even before oil-price drop: PM's claims attacked as 'speculative, optimistic'.' Guardian (19 Jan 2015). 13 Vello Kuuskraa, Scott Stevens, Tyler Van Leeuwen and Keith Moodhe, ‘World Shale Gas Resources: An Initial Assessment of 14 Regions Outside the United States, (April 2011). 14 See n 4 above at 5. 15 Average of ‘risked gas in-place’ and ‘risked technically recoverable’ gas, calculated based on n 13 above, Table 1-3 at 1-5. 16 Vello A. Kuuskraa, Scott H. Stevens and Keith D. Moodhe, 'Technically Recoverable Shale Oil and Shale Gas Resources: An Assessment of 137 Shale Formations in 41 Countries Outside the United States June 2013' (13 June 2013, corrected). 17 USGS, 'Potential for Technically Recoverable Unconventional Gas and Oil Resources in the Polish-Ukrainian Foredeep, Poland' (June 2012) Fact Sheet 2012–3102. 18 I. J. Andrews, 'The Carboniferous Bowland Shale gas study: geology and resource estimation' British Geological Survey (December 2013) at 5. 19 LOI n 2011-835 du 13 juillet 2011 visant à interdire l'exploration et l'exploitation des mines d'hydrocarbures liquides ou gazeux par fracturation hydraulique et à abroger les permis exclusifs de recherches comportant des projets ayant recours à cette technique, official journal no. NOR: DEVX1109929L, consolidated version of 15 July 2011. 20 BBC. 'Bulgaria bans shale gas drilling with 'fracking' method' (19 January 2012)
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Resolutions of the European Parliament echoed a heated political debate on the topic. The Parliament called on the Commission in November 2010 and November 2012 to help Member States assess their unconventional reserves in a belief that an increased share of gas in Europe’s energy mix would reduce emissions by 2050, i.e. in a transitional period towards a decarbonised economy.21 Specifically, the Resolution on the environmental impacts of shale gas and shale oil extraction activities of 21 November 2012 stated that the Parliament: “[n]otes that there is a risk of seismic tremors as demonstrated by shale gas exploration in the north-west of England; supports the recommendations of the UK Government commissioned report that operators be required to meet certain seismic and microseismic standards,”22 “[r]ecalls that the sustainability of shale gas is not yet proven; calls on the Commission and Member States to assess thoroughly greenhouse gas emissions during the entire process of extraction and production to prove its environmental integrity,”23 “[r]ecognises the relatively high water volumes involved in hydraulic fracturing given that water is a particularly sensitive resource in the EU; highlights the need for advanced water provision plans based on local hydrology with consideration for local water resources, the needs of other local water users and capacities for wastewater treatment,”24 “[b]elieves that many of the current controversies over UFF have partly resulted from an initial refusal by the industry to disclose the chemical content of fracturing fluids; maintains that full transparency is required, with a mandatory obligation for all operators to fully disclose the chemical composition and concentration of fracturing fluids and to fully comply with existing EU legislation under the REACH regulation,”25 “[c]onsiders that mutual non-disclosure agreements regarding damage to environmental, human and animal health, such as those which have been in force between landowners in the vicinity of shale gas wells and shale gas operators in the US, would not be in line with EU and Member State obligations under the Aarhus Convention, the Access to Information Directive (2003/4/EC) and the Environmental Liability Directive,”26 “[r]ecognises that drilling activities can worsen living conditions; calls, therefore, for this issue to be taken into account at the time of the necessary authorisation for the sourcing and exploitation of hydrocarbon resources and for all the necessary measures to be taken, in particular by the industry through the implementation of best available techniques, and by the public authorities through the application of strict regulations, to minimise the adverse consequences of such activities,”27 “[c]alls on the industry to engage local communities and discuss shared solutions to minimise the impact of shale gas developments on traffic, road quality, and noise where development activities are being carried out,”28 “[c]alls on Member States to ensure that local authorities are fully informed and involved, particularly when examining requests for sourcing and exploitation permits; calls, in particular, for full access to impact assessments regarding the environment, residents’ health and the local economy,” 29
21
'European Parliament resolution on Towards a new Energy Strategy for Europe 2011-2020 )' (25 November 2010) 2010/2108(INI, P7_TA(2010)0441; ' European Parliament resolution on the environmental impacts of shale gas and shale oil extraction activities' (21 November 2012) 2011/2308(INI), P7_TA(2012)0443; 'European Parliament resolution on industrial, energy and other aspects of shale gas and oil' (21 November 2012) 2011/2309(INI), P7_TA(2012)0444. 22 2011/2308(INI) (n 21), point 25. 23 ibid, point 26. 24 ibid, point 29. 25 ibid, point 41. 26 ibid, point 42. 27 ibid, point 50. 28 ibid, point 51. 29 ibid, point 52.
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Deliverable D11.1 “[b]elieves that public participation should be ensured through adequate public information and through public consultation before each stage of exploitation and exploration; calls for greater transparency with regard to impacts and to chemicals and technologies used, as well as greater transparency of all inspections and control measures in order to ensure public understanding and confidence in the regulation of these activities,” 30 “[r]ecognises that in order to address all issues related to UFF a much better exchange of information among industry, regulators and the public is required,” 31 “[w]elcomes in this regard the 2012 EU budget appropriation for such a public dialogue and encourages the Member States to make use of this funding so as to ensure that citizens living in potential UFF development areas are better informed and can effectively participate in decision-making in their local and national governance structures.”32 “[i]nsists that lessons must be drawn from the USA on the exploitation of shale gas; notes with particular concern that shale gas extraction necessitates very large volumes of water, which may make it difficult to achieve the MDG [Millenium Development Goals] 7 targets concerning access to clean water and food security, especially in poor countries that already face a severe scarcity of water,”33 and “[u]nderlines that land acquisitions for oil and gas mining are a major driver of land grabbing in developing countries, which can pose a significant threat to the world’s indigenous communities, farmers and poor people in terms of access to water, fertile soil and food; notes that, following the 2008 collapse of financial markets, there has been a marked acceleration of global investments in extractive industries from hedge and pension funds, with the effect of encouraging more extraction; underlines, therefore, that all European economic entities should always act in a transparent manner and in close consultation with all appropriate government bodies and local communities on issues of land leases and/or acquisitions.”34 10)
In turn, in the Resolution on industrial, energy and other aspects of shale gas and oil of the same date, the Parliament stated that it: “[i]s well aware that public attitudes to shale gas development vary between Member States, and that negative attitudes might be caused by lack of information or misinformation; calls for improving and better provision of public information on shale gas operations to be provided in a transparent and objective manner, and supports the creation of portals providing access to a wide range of public information on such operations; urges companies considering extraction of shale gas in the EU to provide full information on their activities, to consult with local communities and local authorities prior to drilling, and to publicly disclose all chemicals used by them in hydraulic fracturing, including the concentrations used, following the assessment of the shale formation,”35 “[b]elieves that the best way of ensuring the meaningful and timely engagement of local communities is through mandatory environmental impact assessment, a high level of transparency, and public consultation on proposed shale gas projects, regardless of project duration and scale,”36 “[n]otes that it is particularly important for EU shale gas operators to engage with and build strong relationships with local communities at every stage of their operations, given that the EU has a higher population density than the US and landowners in Europe do not
30
ibid, point 53. ibid, point 54. 32 ibid, point 55. 33 ibid, point 58. 34 ibid, point 59. 35 2011/2309(INI) (n 21), point 36. 36 ibid, point 37. 31
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Deliverable D11.1 own underground resources and so do not benefit directly from extraction as in the US; calls, in this regard, for the establishment of frameworks which are competitive for industry but at the same time allow national and local communities to benefit from shale gas resources; also calls on shale gas companies to establish responsible community practices, ensure that local communities benefit from shale gas development, ensure application of the ‘polluter pays’ principle, and cover the costs of any direct or indirect damage they might cause,”37 “[r]ecognises that there should be an emphasis on a transparent and open dialogue with civil society during both the ex ante and the monitoring phases, based on the scientific evidence available and clearly tackling the issues of gas leaks and the impact of shale gas extraction on groundwaters, the countryside, agriculture and the tourist industry; recalls that the 2012 EU budget includes an appropriation intended to fund pilot projects and other support activities with a view to encouraging such a dialogue; considers that this should be organised in a neutral manner and in close cooperation with the Member States, including national authorities, local communities, the general public, businesses and NGOs,”38 and “[e]mphasises the importance of transparent corporate governance of the oil and gas companies involved in shale gas and oil shale activity.”39 11)
In September 2011 the Parliament also passed a resolution stating that it ‘opposes oil extraction from tar sands and oil shale’.40
12)
However, concerns over EU’s energy security dictated more pragmatic solutions. Member States’ leaders gathered in the European Council had already made a political decision to assess EU’s potential in terms of sustainable extraction of shale gas and oil in February 2011.41 In turn, the European Commission, since 2008, considered shale gas as some panacea to the decline of indigenous production of energy from conventional deposits.42 Despite this, directly after the French ban in July 2011, Member of the European Parliament Jo Leinen from Germany, one of the most influential MPs, proposed an ‘energy quality directive’ that would penalise or even ban fracking at the EU level.43
13)
The Commission’s initial position from January 2012 as to regulation was that ‘unconventional hydrocarbon projects (…), notably shale gas exploration and exploitation activities, are covered by EU’s environmental legislation from the planning until the cessation.’ 44 Nonetheless, the Commission soon issued a guidance note on the application of the Environmental Impact Assessment (EIA) directive,45 and also ordered a number of studies aiming at identifying potential gaps in the existing regulatory environment.
37
ibid, point 38. ibid, point 39. 39 ibid, point 40. 40 P7_TA(2011)0430 (n 21), 39. 41 President of the European Council, 'European Council: Conclusions on Energy' (4 February 2011) PCE 026/11, point 7. 42 'Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Second Strategic Energy Review : an EU energy security and solidarity action plan, COM/2008/0781 final (13 November 2008), point 2.5 at 14; 'Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee AND the Committee of the Regions: Energy 2020 A strategy for competitive, sustainable and secure energy' (10 November 2010) COM/2010/0639 final, at 3; European Commission, Energy roadmap 2050 (Publications Office of the European Union, Luxembourg 2012)at 12. 43 F. Harvey, 'Influential German MEP calls for restrictions on shale gas extraction.' The Guardian (1 July 2011) 30. 44 Janez Potočnik, Member of the European Commission, 'Note for the attention of Mr Matthias Groote, Chair of the ENVI Committee, European Parliament: Transmission note on the EU environmental legal framework applicable to shale gas projects.' (26 Janury 2012) Ares (2012) 91850, annex 2 at 6. 45 European Commission, 'Application of the EIA Directive to projects related to the exploration and exploitation of unconventional hydrocarbon' (5 March 2012) Ares(2011)133939. 38
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1.1.4. Recommendation of 2014 14)
The Commission, acting jointly with the Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions eventually issued a joint complex communication regarding the use of fracking during exploration and production of hydrocarbons in March 2014.46 All bodies agreed that it should remain within the discretion of Member States to decide whether to exploit unconventional deposits, giving due regard to the preservation and improvement of the environment.47 To quote the Communication: “Since the EU environmental legislation was developed at a time when high volume hydraulic fracturing was not used in Europe, certain environmental aspects associated with the exploration and production of fossil fuels involving this practice are not comprehensively addressed in current EU legislation. This in particular concerns issues such as strategic environmental assessment and planning, underground risk assessment, well integrity, integrated and consistent requirements in terms of baseline and operational monitoring, capture of methane emissions and disclosure of fracturing fluid composition on a well by well basis.” 48
15)
Based on the existing legal framework, the Commission in a simultaneous Communication,49 also listed more precise ‘minimum principles’ for fracking that Member States were encouraged to implement in domestic laws. Among other principles, EIAs should be conducted pursuant the Directive 2011/92/EU,50 and permits for exploration and/or exploitation should not be granted without prior strategic environmental impact assessment (SEA) in line with the Directive 2001/42/EC.51 Also, clear rules on minimum distances between fracking operations and groundwater (vertically) as well as flood-prone, seismicprone, water-protection and residential areas (horizontally) should be provided.52 The risk assessment carried out during selection of the exploration and production sites should be based on best available techniques,53 anticipate changing behaviour of the target shale formation,54 and be updated during operations whenever new data is collected.55
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Baseline studies for specific sites should cover56 quality and flow characteristics of surface and ground water,57 water quality at drinking water abstraction points,58 air quality,59 soil condition, presence of methane and other volatile organic compounds in water,60
46
'Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the exploration and production of hydrocarbons (such as shale gas) using high volume hydraulic fracturing in the EU' (17 March 2017) COM(2014) 23 final/2 (COM(2014) 23 final). 47 COM(2014) 23 final/2 (n 46), para. 6. 48 ibid. 49 Commission Recommendation of 22 January 2014 on minimum principles for the exploration and production of hydrocarbons (such as shale gas) using high-volume hydraulic fracturing 2014/70/EU, (2014) OJ L 39, 72 (2014/70/EU). 50 2014/70/EU (n 49), point 3.3; Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (2012) OJ L 26, 1–21. 51 2014/70/EU (n 49), point 3.1; Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (2001) OJ L 197, 30–37. 52 2014/70/EU (n 49), point 3.2. 53 ibid, point 5.3.a. 54 ibid, point 5.3.b. 55 ibid, point 5.3.d. 56 ibid, point 6.2.a. 57 ibid, point 6.2.b. 58 ibid, point 6.2.c. 59 ibid, point 6.2.d. 60 ibid, point 6.2.e.
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Deliverable D11.1 seismicity,61 land use,62 biodiversity,63 status of infrastructure and buildings,64 plus existing wells and abandoned structures.65 17)
Domestic laws should provide that, for specific projects, operators shall have their watermanagement, transport-management and risk-management plans in place.66 Operators should also ensure well integrity through well design, construction, and integrity tests the results of which should be reviewed by an independent third party.67 Operations should be stopped immediately if there is a loss of well integrity or if pollutants are accidentally discharged into groundwater, which should be immediately reported to the competent authority.68
18)
The use of chemicals in fracking must comply with the Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH).69 In addition, operators should monitor and report the precise composition of the fracturing fluids used for each well,70 the volume of water used for each well, 71 the fluids that emerge at the surface following fracking,72 and air emissions of methane and other gases.73,74
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Member states should extend the application of rules on environmental liability to all fracking-related activities, even if not covered under the Directive 2004/35 on environmental liability.75,76 Operators should be required to provide financial guarantees against environmental damage.77 And finally, surveys comparing the environmental status with the baseline study for the surface and underground area should be carried out after the closure of each installation. 78
20)
Fracking operations should be transparent. Operators should publicise information on chemicals and volumes of water used in the process79 whereas authorities should disseminate consolidated information on existing and planned wells, permits, baseline studies, occurred incidents as well as results of inspections, non-compliance and penalties if any.80
21)
Member states that had chosen to exploit their unconventional deposits were invited to voluntarily comply with these minimum principles and to update the Commission on their implementation on an annual basis from December 2014 onwards.81
61
ibid, point 6.2.f. ibid, point 6.2.g. 63 ibid, point 6.2.h. 64 ibid, point 6.2.i 65 ibid, point 6.2.j. 66 ibid, point 9.2.a, 9.2.b, 9.2.f. 67 ibid, point 9.2.e. 68 ibid, point 9.2.g and 9.2.h. 69 ‘Corrigendum to Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006 )’ (2007) OJ L 136, 3–280. 70 2014/70/EU (n 49), point 11.3.a. 71 ibid, point 11.3.b. 72 ibid, point 11.3.d. 73 ibid, point 11.3.e. 74 ibid, point 11.5. 75 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (2004) OJ L 143, 56–75. 76 2014/70/EU (n 49), point 12.1. 77 ibid, point 12.1; n 75; 2004/35/CE, article 14. 78 ibid, point 14. 79 ibid, point 15.a. 80 ibid, point 15.b. 81 ibid, point 16.1. 62
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1.1.5. Implementation of the 2014 Recommendation 22)
A study on the Recommendation’s implementation prepared in December 2015 (Milieu Ricardo report) demonstrated that high volume fracking had only been carried out in Germany (mostly in the 1980s), Poland and the UK, and low-volume fracking in Lithuania and Hungary.82 Exploration wells without fracking had been carried out in Romania and Denmark whereas permits granted in Austria had allowed for clean fracking (without chemicals) but developers withdrew in 2012 without carrying out any activities.83
23)
Elsewhere either very little happened under neutral policies towards fracking or temporary moratoria on fracking had halted early stage operations at the national or regional level. In Germany, the issuance of new permits for high-volume fracking was suspended by the governments of Nordrhein-Westfalen in 2011 and of Niedersachsen in 2012.84 The Netherlands halted issuance of new permits in 2011 and previously granted onshore permits were also then suspended.85 In 2012, Ireland followed (no previously issued permits), as well as Denmark (previously issued permits unaffected). In the UK, the Scottish government placed a moratorium on fracking in March 2015 and announced in October 2017 that the ban would continue indefinitely, whereas Wales and Northern Ireland have had strong policy presumptions against fracking respectively since February 2015 and September 2015. Netherlands extended its moratorium until 2023 in March 201686 while Germany eventually passed a national ban on fracking of shale deposits in June 2016.87
24)
The last reports submitted by Member States in March 2017 revealed that, apart from the UK, exploration works in recent years were only carried out in Denmark. However, Total and Nordsøfonden decided to relinquish their permit in North Jutland, Denmark in June 2016 because of the low productivity of a well drilled in 2015.
25)
As to regulatory matters, the Milieu Ricardo report found that Member States in principle had not conducted SEAs prior to granting permits (except for Lithuania, Netherlands and the UK) but had duly conducted EIAs for specific projects, securing for the public an early and effective opportunity to be consulted.88 The 2014 Recommendation did not result in influencing domestic laws except for the introduction of mandatory EIAs for exploratory drillings in Portugal and an improvement of monitoring requirements in Lithuania.89
26)
Unsurprisingly, the most comprehensive regulatory reforms for shale gas operations were carried out first in Poland and subsequently in the UK. Amendments to various Polish shalerelated laws covered issues like the relaxation of zoning procedures (giving more autonomy to local councils), introduction of land expropriations to the benefit of private developers of hydrocarbon deposits, and lower shale-specific royalties etc. and as such did not overlap with the Commission’s 2014 Recommendation.90
27)
In turn, a huge portion of the changes made in the UK seemed to implement the 2014 Recommendation but British authorities claimed that the reforms had been initiated prior to
82
MilieuRicardo Energy & Environment Plc, 'Study on the application in 11 M Law & Policy Ltd and ember States of the Recommendation 2014/70/EU on minimum principles for the exploration and production of hydrocarbons (such as shale gas) using high-volume hydraulic fracturing' Publications Office of the European Union (December 2015) 070201/2014/690962/ETU/ENV.F.1 at 7 (Milieu Ricardo report). 83 Milieu Ricardo report (n 82), at 19. 84 ibid, 25. 85 ibid, 29. 86 ibid, 87 'German government agrees to ban fracking after years of dispute' (Guardian, 25 June 2016) accessed 18 march 2018. 88 Milieu Ricardo report (n 82), 9. 89 ibid, at 11. 90 n 4; J. Górski, 'From Ownership by State Treasury to Taxation of Private Business in Times of Austerity: Remodelling Government's Rents from Production of Hydrocarbons in Poland' (2015)(4) OGEL.
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Deliverable D11.1 and were not influenced by the release of the 2014 Recommendation.91 A number of safeguards related to high volume fracking were added to the Petroleum Act of 1998.92 As to changes beyond the scope of the Recommendation, definitely the most significant has been that made under the Infrastructure Act of 2015 whereby ‘deep-level’ petroleum or geothermal-related activities (i.e. 300 meters or more below surface level) does not require landowners’ consent. 93 This new statutory right of petroleum exploration and development licence (PEDL) holders superceded the UK Supreme Court’s decision in Bocardo SA v Star Energy UK Onshore Ltd delivered in 2010, in which landowners were held entitled to claim damages for trespass by the wells underlying their property, regardless of their depth.94
1.1.6. Research under Horizon 2020 scheme 28)
The Commission did not settle for the publication of minimum principles but also decided to allocate massive research grants for understanding, preventing and mitigating environmental impacts and risks of shale gas exploration and exploitation within the framework of EU’s ‘Horizon 2020’ Research and Innovation programme offering nearly EUR 80 billion of funding throughout the 2014-2020 period. To quote the 2014 Recommendation: “It is also necessary to continue increasing our knowledge on unconventional hydrocarbon extraction technologies and practices also in order to further reduce potential health and environmental impacts and risks. In this context, it is also essential that information is open and transparent to the public. To facilitate this process, the Commission will establish a European Science and Technology Network on Unconventional Hydrocarbon Extraction, bringing together practitioners from industry, research, academia as well as civil society. The Network will collect, analyse and review results from exploration projects as well as assess the development of technologies used in unconventional gas and oil projects. Further research in the field on understanding, preventing and mitigating environmental impacts and risks of shale gas exploration and exploitation is also announced in the 2014-2015 work programme of Horizon 2020. The latter also announces a grant aimed at supporting the development and implementation of evidence base for research and innovation policies in the area of unconventional gas and oil.”95
29)
The European Science and Technology Network on Unconventional Hydrocarbon Extraction (ESTNUHE) commenced operations in July 2014, gathering practitioners from industry, research, academia and civil society.”96 Two working groups were created including on 1)
91
Milieu Ricardo report (n 82), at 57. ibid, at 57; ‘An Act to consolidate certain enactments about petroleum, offshore installations and submarine pipelines 1998’ ch. 17 (Petroleum Act 1998). 93 Milieu Ricardo report (n 82) at 57, ‘An Act to make provision for strategic highways companies and the funding of transport services by land; to make provision for the control of invasive non-native species; to make provision about nationally significant infrastructure projects; to make provision about town and country planning; to make provision about the Homes and Communities Agency and Mayoral development corporations; to make provision about the Greater London Authority so far as it exercises functions for the purposes of housing and regeneration; to make provision about Her Majesty’s Land Registry and local land charges; to make provision to enable building regulations to provide for off-site carbon abatement measures; to make provision for giving members of communities the right to buy stakes in local renewable electricity generation facilities; to make provision about maximising economic recovery of petroleum in the United Kingdom; to provide for a levy to be charged on holders of certain energy licences; to enable Her Majesty’s Revenue and Customs to exercise functions in connection with the Extractive Industries Transparency Initiative; to make provision about onshore petroleum and geothermal energy; to make provision about renewable heat incentives; to make provision about the reimbursement of persons who have paid for electricity connections; to make provision to enable the Public Works Loan Commissioners to be abolished; and for connected purposes 2015’ ch.7 (Infrastructure Act 2015), art 43.3. 94 [2010] UKSC 35, [2011] 1 AC 380. On the UK’s regulatory reforms, see generally, Meri-Katriina Pyhäranta, 'Reforms in UK Shale Gas Regulation: Better Prospects for Investors?' (2016) 25(2) Eur Ener Envir L Rev 56. 95 COM(2014) 23 final/2 (n 46). 96 Ulrik von Estorff , Luca Gandossi, Andrei Bocin, Oksana Matselyukh, Grzegorz Pieńkowski, Alwyn Hart, Francois Kalaydjian and Eric Vaughan, 'European Science and Technology Network on Unconventional Hydrocarbon Extraction. Annual Report 2015' European Union (2016) JRC Science for Policy Report LD-AC-16-001-EN-N, 7. 92
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Deliverable D11.1 "Exploration, Demonstration and Production Projects in the EU" (WG1), and 2) "Emerging Technologies for Well Stimulation"(WG2)97 – with the objective of: “[s]tructuring the dialogue among the stakeholders, fostering open information and knowledge sharing,”98 “[p]resenting and discussing research activities and their results, as well as identifying gaps and R&D needs,”99 “[e]xamining knowledge gained from exploration and demonstration projects,” 100 and “[i]dentifying and assessing emerging technologies including their economic, environment and climate impacts.”101 30)
The ESTNUHE was originally established for a period of 3 years (2014-2017). However, after ESTNUHE’s annual conference in February 2016, it was agreed to pause its activities.102 Moreover, four research consortia attracted almost EUR 12 million of funding for shale gasrelated projects, including: ‘Furthering the Knowledge Base For Reducing the Environmental Footprint of Shale Gas Development’ (‘FracRisk’) co-ordinated by University of Edinburgh,103 ‘Measuring, Monitoring, Mitigating, Managing the Environmental Impact of Shale Gas’ (M4ShaleGas) co-ordinated by the Netherlands Organisation for Applied Scientific Research,104 ‘Maximizing the EU shale gas potential by minimizing its environmental footprint’ (ShaleXenvironmenT) co-ordinated by the University College London,105 that this report is a part of, and ‘SHale gas Exploration and Exploitation induced Risks develops best practices for assessing the impacts and mitigating the environmental footprint of shale gas extraction and exploration,’ (SHEER) co-ordinated by AMRA research centre from Naples.106
31)
Despite primarily scientific natures, these projects may also have regulatory implications. For example, the FrackRisk has so far released its first Interim Legislative Review in November 2016, with a preliminary finding that “cutting edge science, such as that being undertaken by FracRisk, is currently not legally integrated into the regulatory process, and that it has a place within regulation as part of both the permitting process (risk assessment) and operational process (risk management).”107 Specifically, this report pointed out a too wide discretion of Member States with regard to the scope of risk assessment. It hinted at introducing mandatory “full quantitative modelling of fluid and gas flow or induced seismic activity within the ‘geosphere’ and the use of such modelling’s results in the risk-assessment process.”108
32)
In turn, the M4ShaleGas and the ShaleXenvironmenT took on the problem of the SLO which can be defined, for example as “an informal agreement that infers ongoing acceptance of an industrial or energy project by a local community and the stakeholders affected by it.”109 The M4ShaleGas comprehensively examined the SLO concept from a social science perspective
97
ibid, 3. ibid, 7. 99 ibid. 100 ibid. 101 ibid. 102 Ibid. 103 accessed 1 May 2018. 104 accessed 1 May 2018. 105 accessed 1 May 2018. 106 accessed 1 May 2018. 107 S. Parry, 'Interim Legislative Review' FrackRisk, United Oil and Gas Engineering (UOGE) (30 November 2016) Contr. No. 636811, D7.2, point 7. 108 ibid. 109 Cindy Gallois, Peta Ashworth, Joan Leach, Kieren Moffat. The Language of Science and Social Licence to Operate. Journal of Language and Social Psychology. J Language Soc Psych (2017) 36(1) 45 at 45. 98
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Deliverable D11.1 (in December 2016) and found that this concept has been particularly well received in the UK where it has been used as a substitute for ‘public acceptance’ not only by the industry but also by local communities.110 33)
The authors of this report, as part of the ShaleXenvironmenT project are working from a legal perspective, toward formulating recommendations for governments to improve policies and regulations with the goal of establishing best practice procedures in shale gas exploration and production (which also embraces the issue of the SLO in shale industry). Various SLO-related problems such as conflicting land uses, land access and expropriations, tort liability of developers, and participation of local communities in the permitting process and royalties are under scrutiny by the authors and the results are scheduled to be the subject of a subsequent report.
1.1.7. Challenges ahead 34)
The EU’s legislative provisions for an efficient and safe regulatory environment for shale gas development are an unfinished work in progress. Paradoxically, the current stagnation in the exploration activities all over Europe might work out well for the future regulation of this industry once more efficient technology (appropriate for Europe’s geological conditions) is developed and/or when prices of hydrocarbons rise again.
35)
The time and public funds spent now by the Commission on a scientific research interwoven with regulatory analyses might contribute to the reduction of the industry’s costs as a result of not only better technology but also of a streamlined investment process which would mitigate potential conflicts between developers, landowners, local communities, nongovernmetal organisations (NGOs) as well as central and local authorities.
36)
The obvious irony of these developments lies in the fact that the largest hopes are now placed on the deposits in the UK and that the above-mentioned research has, to a large extent, been done at British universities. Following Brexit and within a few years from now, the UK might completely throw off the shackles of EU’s environmental legislation, and may look instead at other common-law jurisdictions (particularly Australia and Canada) which share similar land, administrative and judicial-review laws. Obviously, in the foreseeable future British lawmakers are likely to remain path-dependant upon decades of compliance with EU’s environmental legislation and could still largely draw upon results of the ongoing research projects, but in their own way and on a voluntary basis only.
1.2. The Report 1.2.1. Purpose of the Report 37)
The purpose of this report is to analyse the regulatory framework for community acceptance of shale gas in the EU, chiefly through a review of literature, policy documents and legislation, at the level of the EU and selected Member States most relevant for the development of the shale gas industry in the EU, related to public participation, access to information and access to justice, in decisions pertaining to the whole shale gas industry or specific projects. The case for such review stems from the following: “[a]s for many other industrial activities with environmental effects, local populations tend to oppose developments that are too close to their homes (“Not in My Backyard effect”),”111
110
Aleksandra Lis, Claudia Braendle, Torsten Fleischer, Merryn Thomas, Darrick Evensen and Jessanne Mastop, 'M4ShaleGas Prerequisites for a Social Licence to Operate in the (Shale) gas Industries' (December 2016), point 6 at 36. 111 COM(2014) 23 final/2 (n 46), 7
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Deliverable D11.1 “in several Member States, citizens' actions have prevented shale gas exploration projects from going forward,”112 “in several Member States, and even in the ones in which governments support shale gas, public opposition is quite vocal, with local, regional or national actions (marches, public meetings…),”113 “[t]he European Parliament Committee on Petitions (PETI Committee) received more than ten petitions from six Member States, some of which were signed by some 15 000 citizens, most calling for a ban or a moratorium on shale gas and/or the use of hydraulic fracturing, on the basis of health and environmental concerns.”114 38)
For the already disussed reason such as size of the deposits and the scope of completed or planned prospection works (see s 1.1.2) we have selected Poland and the UK as two representative Member States – a particularly interesting comparison seeing that in the course of public consultations organised by the Commission in 2013 (see s 2.3.1) 37.5% of the individual respondents were against any form of fracking in EU,115 with the exception of Poland where 59% of individual respondents supported EU-wide developments of the shale gas industry.116
1.2.2. Structure of the Report 39)
This report commenced by offering a summary of the EU’s works on the regulatory environment for the shale gas industry (s 1.1), and is further divided into following parts (i) ‘Background’ (s 2), (ii), ‘Legislative Level’ (s 3), (iii) ‘Plans and Programmes: SEA’ (s 4), (iv) ‘Project Level: EIA’ (s 5), and (v) ‘Public Participation in other EU Legislation’ (s 6).
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Section 2 offers a necessary background of this report by discussing (i) the case for the shale gas in the EU (s 2.1), (ii) the spectrum of shale gas related problems (s 2.2), (iii) public views on fracking and the shale gas industry throughout the EU (s 2.3), and (iv) the concept of the SLO (s 2.4). Section 3 discusses problems of public participation, access to information and access to justice in shale gas related law-making at the EU-level (s 3.1) and Member States level (s 3.2).
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Section 4 discusses the same problems in developing environmental plans and programmes (strategic environmental impact assessment process) at the level of EU institutions (s 4.2) and at the level of national authorities responsible for the preparation of such plans and programmes (s 4.3 and s 4.4). Section 5 discusses the same problems in the realisation of specific shale gas related projects (in the course of the environmental impact assessment) including EU legislation (s 5.2) and its implementation in Member States (s 5.3).
42)
Finally, section 6 briefly discusses the same problems in a number of more specific environment related acts including (i) Habitats Directive (s 6.2), (ii) Birds Directive (s 6.3), (iii) Water Framework Directive (s 6.4), (iv) Industrial Emission Directive (s 6.5) and (v) selected other acts (s 6.6).
112
ibid. European Commission, 'Working Document Impact Assessment Accompanying the document ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social C' (22 January 2014) COM(2014) 23 final, SWD(2014) 21 final, point 3.3. 114 ibid. 115 François Cohen, Lidia Wisniewska, Lorcan Lyons and Mudgal.Shailendra, 'Final Report: Analysis and presentation of the results of the public consultation "Unconventional fossil fuels (e.g. shale gas) in Europe"' BIO Intelligence Service (3 October 2013) 141 (Consultations Results), 21. 116 ibid, 22. 113
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2.
Background
2.1. The case for shale gas in the EU 43)
Neither the development of unconventional deposits117 nor the use of hydraulic fractruring/ fracking118 has been new phenomena. As observed by the Institution of Gas Engineers & Managers (IGEM), shale gas was produced from natural seepage in the Appalachian Mountains as early as 1821.119 According to the Milieu Ricardo report, fracking had been used 300 times in over 150 wells in Germany in tight gas120 deposits since 1961 and also three times in the 1980s.121 Nonetheless, while fracking technology has been commonly known in Europe, Boersma and Corey Johnson notice that “[i]t was United States, however, where the combination of thinking and experimentation by small and big producers, encouraged by liberal regulation and active government participation in funding research and development, pushed innovation in hydraulic fracturing.”122 In turn Whitton and others, with regard to shale gas industry in the US, observe that: “In the 1970s, a combination of factors – including industry concerns about declining natural gas production, and federal government concerns about the productivity of domestic energy sources in the wake of the energy crisis – led to a loose coalition of private and public entities that invested in developing the geological knowledge and technological capacity to extract natural gas from unconventional sources.”123
2.1.1. Transition to decarbonised economy 44)
The major reason for the EU’s interest in unconventional hydrocarbons has been EU’s more general enthusiasm about natural gas as a major energy-generation fuel in the transitional period toward decarbonised economy. The basis premise of the Energy Roadmap 2050124 is that 1) “[t]he energy sector produces the lion's share of man-made greenhouse gas emissions,”125 and 2) “[t]herefore, reducing greenhouse gas emissions by 2050 by over 80% will put particular pressure on energy systems.”126 Under the Energy Roadmap 2050, the role of natural gas in reducing greenhouse gas emissions has consisted of the following: “Gas will be critical for the transformation of the energy system. Substitution of coal (and oil) with gas in the short to medium term could help to reduce emissions with existing technologies until at least 2030 or 2035. Although gas demand in the residential sector, for example, might drop by a quarter until 2030 due to several energy efficiency measures in the housing sector, it will stay high in other sectors such as the power sector over a longer period. In the Diversified Supply Technologies scenario for example, gas-fired power generation accounts for roughly 800 TWh in 2050, slightly higher than current levels. With evolving technologies, gas might play an increasing role in the future.” 127
117
For the explanation, see Appendix I, points 1 and 2. For the explanation, see Appendix I, point 3. 119 Institution of Gas Engineers (IGEM), 'Shale Gas: The time is now' (November 2013) accessed 1 May 2018. 120 For the explanation, see Appendix I, points 1 and 2. 121 Milieu Ricardo report (n 82), 25. 122 Tim Boersma and Corey Johnson, 'Twenty Years of US Experience - Lessons Learned for Europe.' in Musialski, Cécile and others (eds), Shale Gas in Europe: A multidisciplinary analysis with a focus on European specificities (Claeys & Casteels, 2013), 10. 123 John Whitton, Kathryn Brasier, Ioan Charnley-Parry, Matthew Cotton 'Shale gas governance in the United Kingdom and the United States: Opportunities for public participation and the implications for social justice' (2017) 26 Energy Research & Social Science 11. 124 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Energy Roadmap 2050 (Brussels, 15 December 2011) COM(2011) 885 final, {SEC(2011) 1565 final}, {SEC(2011) 1566 final}, {SEC(2011) 1569 final}, (Energy Roadmap 2050). 125 Energy Roadmap 2050 (n 124), at 3. 126 ibid. 127 ibid, 11. However, the Energy Roadmap 2050 also notices that: “If Carbon Capture and Storage (CCS) is available and applied at large scale, gas may become a low-carbon technology, but without CCS, the long term role of gas may be limited to a flexible back-up and 118
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Deliverable D11.1 45)
The specific interest of the EU’s policy-makers in natural gas extracted from unconventional resources as a transitional energy-generation fuel has stemmed from the observation that: “Global gas markets are changing, notably through the development of shale gas in North America. With liquefied natural gas (LNG), markets have become increasingly global since transport has become more independent from pipelines. Shale gas and other unconventional gas sources have become potential important new sources of supply in or around Europe.” 128
2.1.2. Security of supplies 46)
The plans to temporarily employ shale gas for decarbonisation purposes have also come in tandem with concerns about security of gas supplies. As noticed in the Energy Roadmap 2050, “[a]s conventional gas production declines, Europe will have to rely on significant gas imports in addition to domestic natural gas production and potential indigenous shale gas exploitation.”129 And as noticed in the 2014 Communication: “today and in the near future, the EU is still facing a number of energy challenges including an increasing import dependency and related risks to security of supply, the completion of the internal energy market and the impact of energy prices on competitiveness,”130 “[t]hese challenges are particularly reflected in natural gas, which currently accounts for one quarter of the EU’s primary energy consumption and could contribute to the reduction of greenhouse gas emissions in the short to medium term, should it replace more carbon intensive fossil fuels,”131 “[h]owever, for the last two decades, the production from conventional reservoirs has steadily declined,”132 “[t]he EU’s natural gas import dependency has risen up to 67% in 2011 and is projected to continue increasing, putting the EU in greater direct competition with global demand for natural gas,”133 “[s]ome Member States rely on a single supplier and often on a single supply route for 80100% of their gas consumption.”134
47)
Thus, although this might seem counter-intuitive at first glance, the European Commission despite declining domestic production looked rather enthusiastically at natural gas because of the successes of the shale gas industry in the US135 combined with the new landscape of global LNG supplies.136 Pretty obviously, not only was the Commission planning to rely on LNG imports from the US but also looked into building domestic shale gas capacity (see s 1.1.6).
balancing capacity where renewable energy supplies are variable. For all fossil fuels, Carbon Capture and Storage will have to be applied from around 2030 onwards in the power sector in order to reach the decarbonisation targets. CCS is also an important option for decarbonisation of several heavy industries and combined with biomass could deliver "carbon negative" values. The future of CCS crucially depends on public acceptance and adequate carbon prices; it needs to be sufficiently demonstrated on a large scale and investment in the technology ensured in this decade, and then deployed from 2020, in order to be feasible for widespread use by 2030.” See ibid. 128 Energy Roadmap 2050 (n 124), 12. 129 ibid. 130 COM(2014) 23 final/2 (n 46), 2. 131 ibid. 132 ibid. 133 ibid. 134 ibid. 135 With regard to the US, for example the 2014 Communication noticed that 1) “[t]echnological progress has enabled access to unconventional fossil that were previously technically too complex or too costly to extract,” (see ibid, 2) “[i]n the US, unconventional gas currently accounts for 60% of the domestic gas production with shale gas featuring the highest growth rates” (see ibid.) 136 See n 128.
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2.1.3. Shale gas related opportunities in public opinion 48)
Even the public, generally reluctant to embrace fracking, bought the ideas related to the potential economic impact of a shale gas boom in Europe (see s 2.3.1). The public consultations organised by the European Commission and processed by the BIO Intelligence Service in 2013 (Consultations Results) have shown that as much as 59% of the individuals surveyed found it positive that the potential success of the EU’s shale gas industry would reduce EU’s dependence on energy imports.137 Unsurprisingly, that score was even higher in the case of surveyed companies (69%).138 For comparison, technological innovation was identified as the most important benefit of developing unconventional fossil fuels in Europe by academic institutions (80%) and industry/trade associations whereas an “increase in private investments” was identified as the most important benefit by NGOs (but by only 16% of those).139
49)
Other advantages of developing unconventional deposits identified by the public included: 1) a reduction of income gap between various European regions, 2) faster economic growth due to investment in local and regional infrastructure, 4) reinforcement of scientific collaboration, 5) an increased use of natural gas as a fuel in transportation, 5) a possibility of diverting technology developed for extraction of unconventional hydrocarbons to extraction of renewable energy like geothermal deposits, 6) an increased likelihood of the discovery of new mineral deposits, and 7) an increased use of nuclear energy.140
50)
Moreover, as the Eurobarometer 420 showed,141 the majority of individual respondents, from selected regions where shale gas projects had been planned or approved, who generally agreed that the projects could be developed in their neighbourhoods (see s 2.3.2.2), also agreed regardless of the region that such projects would contribute to the creation of local jobs, with the highest numbers recorded in South East Romania (89%), North East Romania (89%) and Lancashire (90%) and lowest in Cantabria (62%), Basque Community (61%) and Hovedstäden (50%).142 As far as other pre-defined opportunities are concerned: for ‘a domestic source of energy’ the highest score was recorded in Lubelski (56%), Pomorskie (56%), and Lancashire (60%) whereas the lowest was in South East Romania (34%), North East Romania and Nordjylland (both 31%),143 for ‘revenues for the local community’ the highest score was recorded in Pomorskie (48%), Lubelski (51%), and Lancashire (64%) whereas the lowest was in Castille-Leon (36%), Nordjylland (34%), and Hovedstäden (21%),144 for ‘a source of attraction for other business and services’ the highest score was recorded in North Brabant (41%), Lancashire (43%), and Lubelski (45%) whereas the lowest was in Castille-Leon (18%), Cantabria (18%), and Basque Community (11%),145 for ‘better roads and other infrastructure’ the highest score was recorded in North East Romania (35%), South East Romania (37%), and Lubelski (38%) whereas the lowest was in Nordjylland 16%), Cantabria (15%), and Hovedstäden (5%),146 and
137
Consultations Results (n 115) 28. ibid. 29. 139 ibid. 140 Ibid. 36. 141 TNS Political & Social, 'Attitudes of Citizens towards Shale Gas in Selected European Regions' (conducted at the request of the European Commission, Directorate-General for the Environment, September 2015) Flash Eurobarometer 420 (Eurobarometer 420). 142 Eurobarometer 420 (n 141), 12. 143 ibid. 144 ibid. 145 ibid. 146 ibid. 138
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Deliverable D11.1 for ‘acquisition of skills’, the highest score was recorded in Flevoland, North Brabant (both 18%), and Lancashire (47%) whereas the lowest was in North East Romania (7%), Cantabria (6%), and Hovedstäden (5%).147
2.2. Shale gas related problems 51)
The exploration, regulation, governance of, and gaining public acceptance for shale gas operations in Europe have many dimensions because fracking-specific problems are much more complex than problems normally encountered by developers and policy-makers, dealing with the exploration and/or production of conventional hydrocarbons.148 The scope of shale gas related problems can be best explained by looking at the shale gas specific investment process from a more technical perspective.
2.2.1. Shale gas-specific investment process 52)
As explained in the very first study on the existing EU shale gas related regulation released in 2011 (“Phillipe Report”),149 the field-specific investment process generally includes five distinct phases: 1) ‘identification of the gas resource’ (involving geological surveys), 2) ‘early evaluation drilling’ (for example involving collection of samples), 3) ‘pilot project drilling’ (involving drilling some horizontal wells some fracking), 4) ‘pilot production testing’ (involving drilling multiple wells and planning gas transmission infrastructure), and 5) ‘commercial development.’150 In turn, a well-specific investment process, according to the report on shale-related environmental and health risks released in 2013151 includes six stages: 1) ‘site identification and preparation’ (involving preparation of surface for the movement of heavy machinery), 2) ‘well design; drilling; casing; cementing; perforation’, 3) ‘technical hydraulic fracturing,’ 4) ‘well completion and management of wastewater,’ 5) ‘production,’ and 6) ‘decommissioning/abandonment.’ 152
53)
The shale gas-specific investment process thus comes with numerous associated risks as well as technical challenges. The key environmental risks from onshore oil and gas activities were categorised in the report released by the European Union Network for the Implementation and Enforcement of Environmental Law (“IMPEL”) as: contamination of groundwater by 1) inadequate well design or well failure, 2) spills of chemicals or returned fluids at the surface, and 3) mobilisation of solutes and/or methane by high-volume hydraulic fracturing, contamination of surface water and/or soil by above-ground spills, and/or leaks from storage tanks, adverse impacts on water resources through abstraction for high-volume hydraulic fracturing, pollution of the air by 1) fugitive emissions of methane, 2) venting from on-site tanks/equipment, 3) flaring, pollution caused by the inadequate management of wastes, including 1) waste waters, 2) drilling muds and cuttings, 3) gases, and 4) and naturally occurring radioactive material (NORM),
147
ibid. For the technical terms (such as definitions of conventional and unconventional hydrocarbons), see Appendix I. 149 Philippe & Partners, 'Final Report on Unconventional Gas In Europe' (Brussels 8 November 2011) multiple framework service contract for legal assistance TREN/R1/350 - 2008 lot 1, European Commission Energy DG Library (DM28, 0/36) (“Philippe Report”). 150 See Phillipe Report (n149), para. 8. 151 Mark Broomfield, 'Support to the identification of potential risks for the environment and human health arising from hydrocarbons operations involving hydraulic fracturing in Europe' AEA Technology plc (10 August 2012, reissued with minor corrections 11 February 2013) 07.0307/ENV.C.1/2011/604781/ENV.F1, ED57281 - Issue Number 1 7 c 152 2013 AEA Report (n151), 10-11. 148
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Deliverable D11.1 induced seismicity both from conventional and unconventional onshore oil and gas activities.153
2.2.2. Shale gas-specific environmental risks 54)
More specific environmental risks were assessed in separate studies. For example, as far as increased emissions are concerned, according to Millieu’s report on the impact of shale gas on climate released in 2012: 1) “the GHG Emissions per unit of electricity generated from shale gas [will] be around 4% to 8% higher than for electricity generated by conventional pipeline gas from within Europe,” 2) “[t]hese additional emissions arise in the precombustion stage, predominantly in the well completion phase when the fracturing fluid is brought back to the surface together with released methane,” and 3) “[i]f emissions from well completion are mitigated, through flaring or capture, and utilised then this difference is reduced to 1% to 5%.”154 As far as land and water use is concerned, the Joint Research Centre’s (JRC) case study of Poland and Germany released in 2013 assessed that: 1) “[u]nder the Average Impact Scenario, (…). [t]he land taken up for shale gas extraction as a percentage of the total land converted to industrial purposes within the whole country in the period 2006-2028 is 2% in both Poland and Germany,”155 and 2) “[t]he total modelled water use for shale gas development accounted for 0.15% of the total water withdrawals for all sectors in Poland, and 0.10% in Germany for the average impact scenario in 2028.”156
2.2.3. Access to land and infrastructure 55)
Another set of shale-related challenges pertains to the unimpeded access to land for gas exploration and production, midstream-infrastructure for gas transmission, and to markets for gas commercialisation. As far as land access is concerned, the JRC study on the market impact of unconventional gas development in Europe released in 2012 stated that “with farm plots smaller and land ownership more diffuse in Europe, a key regulatory consideration is how to manage multiple landowners and their varying claims and concerns.”157 As far the access to the mid-stream infrastructure and the markets is concerned, the JRC Market Report stated that 1) “[r]eforms to the EU’s Internal gas market are still ongoing [and] [t]here have been encouraging recent developments indicating that EU Market liberalisation is gathering pace.”158 and 2) “[q]uestions thus remain as to whether the EU’s Internal market rules can be practically applied in the context of possible
153
The European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), Mitchell D. Best practice in regulating onshore oil and gas operations (including shale gas). Final Report. March 2016. 154 Daniel Forster and Jonathan Perks, 'Climate impact of potential shale gas production in the EU' AEA Technology plc (30 July 2012) CLIMA.C.1./ETU/2011/0039r, AEA/R/ED57412, iv. The caveat is that such findings pertain to the report’s ‘base case’ which assumes (i) “15% of the emissions from well completion are flared and the remainder are vented,” and (ii) a well productivity of 2 bcf (56.6 million m3), and a transport distance of 100km.” See ibid, 58. 155 ibid. 156 Carlo Lavalle, Claudia Baranzelli, Ine Vandecasteele, Ricardo Barranco, Ines Mari Rivero, Serenella Sala, Pascual Perez Ballesta, Annette Borowiak, Robert Field, Ad de Roo, Peter Burek, Bernd Gawlik and Nathan Pelletier, 'Spatially - resolved Assessment of Land and Water Use Scenarios for Shale Gas Development : Poland and Germany' Publications Of fice of the European (2013) JRC83619, EUR 26085 EN, 13. The average scenario in this assumed in the case of the water use that “35% of the flowback water is recycled, and in the high impact scenario we assume that no water is recycled, and therefore 100% of the water withdrawn is consumed.” (see ibid, 58), whereas in the case of the land use “[t]he High and Low Impact Scenarios are compared to the Average Scenario in terms of number of people living at different distances from the exploitation sites (blue and red line, respectively), in the last allocation year 2028” (see ibid, 58). 157 Ivan Pearson, Peter Zeniewski, Francesco Gracceva, Pavel Zastera, Christophe McGlade, Steve Sorrell, Jamie Speirs and Gerhard Thonhauser, 'Unconventional Gas: Potential Energy Markets Impacts in the European Union' European Commission Joint Research Centre Institute for Energy and Transport (2012) JRC 70481, EUR 25305 EN, viii. However, the caveat here as that the authors of the JRC Merket Report also also referred in this regard to a rather pessimistic Commission’s staff working paper released in June 2011, stating that “a truly single energy market is far from complete.” See Europe Commission, 'Report on progress in creating the internal gas and electricity market' (9 June 2011) Commission Staff Working Document. accessed 1 August 2017, 2. 158 JRC Market Report (n157), viii.
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Deliverable D11.1 unconventional gas development and be clear, non-discriminatory, timely and repeatable across large operations.” 159 56)
Altogether, at the initial stage of conceptual works towards an improved regulatory environment in the EU, the Phillipe Report categorised shale gas related challenges for the purposes of that early analysis into the following: ‘general regulatory environment’ defined by the authors as “the position of the government, other authorities and the public regarding shale gas activities,” 160 ‘core procedures’ which, according to the authors, includes: 1) “[t]he number and role of the competent authorities in the authorisation and core permitting procedures,”161 2) “[t]he core procedures properly speaking (e.g. duration, documents to submit, criteria for granting the authorisation and/or permit, appeal possibilities, public participation),” 162 and 3) “[t]he authorisations and/or permits properly speaking (e.g. duration, content, conditions, stages of prospection/production it covers, sanctions in case of noncompliance),” 163 ‘authorisation and permit characteristics’ including: 1) “[c]ontent of authorisations/permits” 164 2) “[v]alidity duration of authorisations and permits,” 165 3) “[s]anctions in case of non-compliance,” 166 ‘transit to production and post-authorisation and/or post-permits aspects’ which authors further categorised into 1) “[t]ransit to production,”167 2) royalties,168 3) “[c]ontrol once the exploration/production is launched,”169 4) “[t]ermination of exploration/production operations.” 170 ‘environmental and health protection aspects’ including: 1) “general environmental legislation,” 171 2) “environmental liability,” 172 3) water,173 4) “extraction and disposal of mineral resources,” 174 5) “gas emissions in the air,” 175 6) soil protection,176 7) wild life protection,177 (8) noise,178 and 9) “[p]ressure equipments,” 179 ‘legislation with respect to chemicals’ including: 1) “[t]ransport of dangerous goods,” 180 2) “[p]revention of major accidents and limitation of their consequences for man and environment,” 181 and 3) registration, evaluation, authorisation and restriction of chemicals (“REACH”),182 ‘civil law aspects other than property law,’ which according to the authors come down to “[l]egal regime concerning civil liability aspects related to shale gas activities,” 183 further
159
ibid. ix. See Phillipe Report (n149), para 13, 16. 161 Ibid. 162 ibid. 163 ibid. 164 ibid, para 13, section 3.1. 165 Phillipe Report (n149), para 13, section 3.2. 166 ibid, para 13, section 3.3. 167 This, according to the authors, pertains to the post-exploration phase when separate authorisation need to be granted to the developers prior to commencing production a activities. Phillipe Report (n149), para 13, section 4.1. 168 ibid, para 13, section 4.2. 169 ibid, para 13, section 4.3. 170 ibid, para 13, section 4.4. 171 ibid, para 13, section 5.1.1. 172 ibid, para 13, section 5.1.2. 173 ibid, para 13, section 5.2. 174 ibid, para 13, section 5.3. 175 ibid, para 13, section 5.4. 176 ibid, para 13, section 5.5. 177 ibid, para 13, section 5.6. 178 ibid, para 13, section 5.7. 179 ibid, para 13, section 5.8. 180 ibid, para 13, section 6.1. 181 ibid, para 13, section 6.2. 182 ibid, para 13, section 6.3. 183 ibid, para 13, section 7.2. 160
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Deliverable D11.1 subcategorised by the authors into: 1) civil liability, 184 and 2) the compensation of damage,185 ‘other permitting procedures’ identified by the authors.186
2.3. Fracking in the public opinion 57)
In the years of the most heated debate about the prospects for the development of a vibrant fracking industry in the EU, on the one hand, the EU institutions sought the opinion of the general public and various other stakeholders on the issue. On the other hand, individuals interested in the development or regulatory suppression of the shale gas industry in the EU sought to make their voices heard by the EU institutions. The Commission mostly used public consultations and Eurobarometer (see further s 2.3.1 and s 2.3.2) whereas individuals mostly exercised their right to submit petitions to the Parliament (see further s 2.3.3).
2.3.1. Shale gas related consultations 58)
The Commission announced public consultations titled “Unconventional fossil fuels (e.g. shale gas) in Europe” on 20 December 2012 with a time for submitting feedback until 23 March 2013, and with the target group defined as “the oil and gas sector, environmental non-governmental organisations, geological surveys, scientists, experts in the management of industrial risks, national and local authorities and citizens at large.”187 Different sets of questions were addressed to 1) ‘citizens,’ 2) organisations’ and 3) ‘public authorities.’188 Almost twenty three thousand responses were processed and analysed by the BIO Intelligence Service and the results were released in October 2013 (Consultations Results).
2.3.1.1. Individual responses 59)
Over 95% of responses came from citizens, among which over 90% came from Poland, France, Romania, Spain and Germany combined.189 37.5% of the respondents were against the development of unconventional fossil fuels in Europe and 28.9% conditionally in favour of such development (i.e. subject to sufficient safeguards in place) whereas 32.5% were of the view that the unconventional fossil fuels should be developed in Europe regardless of circumstances.190 As far as challenges are concerned, the lack of transparency and public information ranked the highest and was indicated by as much as 63% of the individual respondents.191 At least 63% of individual respondents found all the recommendations, aiming at mitigating risks to environment health and climate, pre-defined in the questionnaire192 very important or important.193 The access to all types of shale gas-related
184
ibid, para 13, section 7.2.1. ibid, para 13, section 7.2.2. 186 ibid, para 13, section 7.2.2. 187 European Commission, ‘Unconventional fossil fuels (e.g. shale gas) in Europe’ (EC.EUROPA.EU, 20 December 2012) accessed 12 October 2017. The call for consultations was justified in the way that: “Exploration and production of natural gas and oil within Europe has in the past been mainly focused on conventional resources. Whilst opportunities for this type of domestic extraction are becoming increasingly limited, technological progress is opening up new possibilities to extract unconventional fossil fuels such as shale gas, tight gas, coal bed methane, tight oil or shale oil, from geological formations which were previously too complex or too expensive to extract. The European Commission aims to ensure that developments of unconventional fossil fuels are carried out with proper health, climate and environmental safeguards in place and under maximum legal clarity and predictability for both citizens and operators, as well as to ensure that the potential economic and energy security benefits of such developments can be reaped. Building on analytical work it has conducted since the end of 2011, the Commission has included in its Work Programme for 2013 the development of an "Environmental, Climate and Energy Assessment Framework to Enable Safe and Secure Unconventional Hydrocarbon Extraction"” See ibid. 188 Consultations Results (n 115). 189 ibid. 13, 16, 190 ibid. 21. 191 ibid. 38. 192 “1. Plan ahead of developments (e.g. expected number of wells; space between wells;distance to residential areas, aquifers, protected areas) 2. Assess the risks of the underground (geological) formation before deciding whether to proceed with drilling and hydraulic 185
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Deliverable D11.1 information identified in the questionnaire194 was found very important or important by at least 74% of all respondents.195
2.3.1.2. Responses by private organisations 60)
Out of 696 responses received from organisations, the majority came from private organisations including 1) companies (33%), 2) environmental and social NGOs (32%), and 3) industry/trade associations (10%), 4) others (11%) 5) academic institutions (2%)196 and 6) intergovernmental organisations (1%).197 Unsurprisingly, the majority of the NGOs were against the development of unconventional fossil fuels in Europe in contrast to companies, industry/trade associations and academic institutions, the majority of which were in favour of such development (subject to strict safeguards) whereas almost 30% of the companies and 24% of the academic institutions expressed the view that unconventional hydrocarbons should be developed regardless of circumstances.198
61)
As far as challenges are concerned,199 that lack of public acceptance was identified as the most significant obstacle to developing unconventional hydrocarbons in Europe by the majority of surveyed organisations including companies (58%), industry/trade associations (66%) and academic institutions (73%).200 For comparison, for surveyed NGOs, almost all suggested challenges were of utmost importance.201 The feedback to proposed recommendations202 was rather homogenous as almost all of the recommendations identified as very important by over 80% of surveyed industry/trade associations and almost 80% of surveyed intergovernmental organisations and NGOs.203
2.3.1.3. Responses by public authorities 62)
Out of 696 surveyed institutions only 11% or 82 were public authorities (including 2% from central authorities and 9% from regional or local authorities204) and as much as 32 of all surveyed public authorities were Polish.205 Central authorities looked more favourably at developing unconventional fossils fuels in Europe than their regional or local counterparts.206 Moreover, the benefits of developing unconventional fossil fuels in Europe were major or
fracturing 3. Characterise operational risks before, during and after operations, including through the use of specific models 4. Make sure the well is properly constructed, isolated and does not leak 5. Monitor the quality of water, air and seismicity aspects before, during and after operations 6. Disclose operational data (e.g. volumes of water used; chemical additives used; waste characteristics; incidents) 7. Minimise the use of fracturing fluids, and substitute hazardous ones with safer alternatives 8. Minimise the use of water 9. Manage fracturing fluids and waste appropriately 10. Control releases to air, including of greenhouse gases such as methane 11. Limit noise 12. Minimise transportation needs 13. Ensure clear and robust liability regimes, including for the post-closure phase 14. Ensure that operators or permit holders have appropriate financial security in place (e.g. to cover possible accidents or post-closure requirements) 15. Provide for inspection of the wells and surveying of operations in the wider area 16. Provide for independent evaluation and verification of the projects 17. Ensure adequate responses in case of emergency.” See ibid. 49-50. 193 ibid, 50. 194 “1. Planned developments (e.g. number of wells and localisation) 2. Information about operators involved in unconventional fossil fuels (e.g. shale gas) activities, their licences and permits 3. Baseline data (e.g. data on water and air quality prior to operations) 4. Operational data (e.g. volumes of water used; chemical additives used) 5. Information on incidents associated with unconventional fossil fuels (e.g. shale gas) exploration and extraction 6. Information on potential risks associated with unconventional fossil fuels (e.g. shale gas) exploration and extraction 7. Information on potential benefits (e.g. employment and tax revenues).” See ibid, 85. 195 ibid, 85. 196 The responses by academic institutions, despite most likely public nature/control/ownership of such institutions, were analysed along with responses by private organisations rather than responses by public authorities. See ibid, 16. 197 ibid, 16. 198 ibid, 23. 199 See n 192. 200 Consultations Results (n 115), 40. 201 ibid. 202 See n 194. 203 Consultations Results (n 115), 40. 204 ibid. 16. 205 ibid. 17. 206 ibid. 24.
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Deliverable D11.1 significant in the view of 86.6% of Polish public authorities in contrast to much lower numbers in Romania (22.7%), Spain (16.4%), France (13.1%) and Germany (1.5%).207
2.3.2. Eurobarometer 63)
The Commission also conducted public opinion surveys on the development of shale gas deposits through the Eurobarometer, the results of which were processed and analysed by the TNS in two Flash Eurobarometers in 2015, including one on the air quality and pollution (Eurobarometer 360)208 and one specifically devoted to shale gas (Eurobarometer 420).209
2.3.2.1. Eurobarometer 360 64)
In the Eurobarometer 360, the views on shale gas extraction were included among many other issues related to the public perception of the quality and pollution of air.210 With regard to EU’s energy policy, the Eurobarometer 360 found that, in the perspective of the next 30 years, only in the opinion of 9% of surveyed persons, should the EU prioritise the exploration of unconventional fossil fuels compared with as much as 70% supporting the prioritisation of renewables.211 This number was much lower for the 15 old Member States (7%) than for 12 new Member States (17%),212 and especially Poland (32%).213
65)
With regard to individual shale gas-related concerns, the Eurobarometer 360 found that the majority of surveyed persons (74%) expressed the view that they would be worried if shale gas operations were conducted in their neighbourhood while above one third (40%) would be very worried.214 This number was considerably higher for the 15 old Member States (77%) than for 12 new Member States (61%),215 and especially Poland (47%).216
2.3.2.2. Eurobarometer 420 66)
In the Eurobarometer 420, only persons from focus groups living in the 12 regions of Poland (Lubelski and Pomorskie), UK (Lancashire), Spain (Basque Community, Cantabria and CastileLeon), Romania (North East and South East), Denmark (Nordjylland and Hovedstäden) and Netherlands (North Brabant and Flevoland) where shale gas related operations had been permitted or planned, were questioned.217
67)
With regard to how the shale gas industry in Europe should be regulated, having to choose from a few pre-defined options,218 between one fifth and one third of respondents in the majority of regions expressed the view that this should remain within the discretion of
207
ibid. TNS Political & Social, 'Attitudes of Europeans towards air quality' (conducted at the request of the European Commission, DirectorateGeneral for the Environment, January 2013) Flash Eurobarometer 360 (Eurobarometer 360). 209 Eurobarometer 420 (n 141). 210 The other issues pre-identified in the Eurobarometer 360 were: “• the level of knowledge about air quality problems;• the perceived seriousness of air quality problems and perceived changes in thequality of air over the past ten years;• the perceived impact of various sectors and activities on air quality;• the main threats to air quality;• environmentally friendly energy and transport options;• individual and other actions to reduce air quality problems;• recommended measures that the EU should take;• awareness of the review of the Thematic Strategy on Air Pollution;• awareness of and opinions about the current EU legislation related to air quality; the impact of energy production and use on air quality;” See Eurobarometer 360 (n 208), 3. 211 Ibid, 8, 100. 212 Ibid, 100. 213 Ibid, 101. 214 Ibid. 215 Ibid, 105. 216 In contrast other Member States, a whopping 49% of surveyed Polish person expressed the they would not be concerned by shale gas operations carried out in their vicinity. See ibid. 217 Including over 6 thousand phone interview and half a thousand interview in person. See Eurobarometer 420 (n 141), 4. 218 “• The EU should let Member States decide how shale gas exploration and production should be undertaken; • The EU should continue their current approach of providing recommendations but not adopt new legislation; • The EU should go further and adopt new legislation to regulate shale gas exploration and production; • The EU should consider banning hydraulic fracturing (or "fracking").” See Eurobarometer 420 (n 141), 16. 208
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Deliverable D11.1 Member States to decide on the development of shale gas deposits.219 The support for such regulatory autonomy of the Member States was higher than the 20-33% bracket in Lubelski (59%), Pomorskie (58%), South East Romania (40%), North East Romania (33%) and lower in Cantabria (13%) and Basque Community (14%).220 Less than one fifth of persons were of the view that the new shale-related EU legislation would be superfluous and that the EU should continue with its current approach, with the highest results in Nordjylland (16%) and Hovedstäden (19%) and the lowest results in Flevoland and Cantabria (both 8%) and Lubelski (7%).221 68)
Also, one fifth of the respondents were in favour of the adoption of new EU legislation at the EU level with the highest numbers in Cantabria (28%) and Castile-Leon (33%) and the lowest numbers in South East Romania (19%) and Hovedstäden (17%).222 The most varying views among the regions were expressed in relation to a possible EU-wide ban on fracking with the highest support for such ban expressed in Basque Community (43%) and Cantabria (43%) and the lowest in Lubelski (7%) and Pomorskie (6%).223
69)
As far as potential general opportunities stemming from the development of the shale industry in Europe are concerned, between 5% and 37% of the respondents totally agreed with a statement that they, individually, or their regions would benefit from such development, between 20% and 43% tended to agree, between 10% and 31% tended to disagree, and between 5% and 50% totally disagreed.224 The highest combined percentage of “totally agree” and “tend to agree” was recorded in Pomorskie and Lubelski (each 80%) whereas the lowest in Basque Community and Cantabria (each 28%) 225 (see also s 2.1.3).
2.3.3. Petitions to the European Parliament 70)
General concerns about fracking and complaints about specific shale-related operations have also been signalled through petitions to the Parliament (see further, s 3.1.2.1; Appendix V), most of which came from Romania and Spain and were submitted in 2013. In 2013, with regard to planned authorisations in the northern part of the region of Castelló, Spain, the petitioners indicated risks of fracking in the vicinity of protected areas (like under the Habitats Directive226 and the Birds Directive227) and called for a blanket ban on fracking in such areas.228 The petitioner from Lithuania, among other issues, generally with regard to fracking, indicated the risk of increased radiation and water pollution.229 With regard to operating a fracking rig in the vicinity of Łowicz, Poland, the petitioner called for halting those operations for fear of water contamination.230
71)
Also in 2013, with regard to the exploratory authorisations granted to Repsol in the region of Cantabria, Spain, the petitioner claimed that the exploratory works would cause environmental damage in the ‘Montana Oriental’ area and that the authorisation in question had been issued despite the opposition of the large part of local community and without proper public consultations.231 With regard to the isles of Lanzarote and Fuerteventura,
219
ibid, 4. ibid, 17. 221 ibid, 16. 222 ibid, 17. 223 ibid, 17. 224 ibid, 10. 225 ibid,, 10. 226 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] L 206 OJ 7–50 (Habitats Directive). 227 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds [2010] L 20 OJ 7–25 (Birds Directive). Special edition in Croatian: Chapter 15 Volume 032 P. 128 – 146. 228 See Appendix V, point 1. 229 ibid, point 2. 230 ibid, point. 3. 231 ibid, point 4. 220
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Deliverable D11.1 Spain, two separate petitions alleged that the exploratory drillings within 10 kilometres of public beaches had been allowed with a royal decree passed despite massive public protests and without prior consultations in violation of the EIA Directive, 232 the Habitats Directive and the Birds Directive.233 Generally with regard to fracking in the EU, the Irish petitioner argued that, in the light of possible destruction of water reserves with chemicals used for fracking, a moratorium on exploratory works should be passed and public funds spent on the development of the shale gas industry in Europe should instead be diverted to the development of solar or wave energy.234 72)
Still in 2013, with regard to shale gas-related arrangements between the Romanian government and Chevron in relation to operations in the Dobrogea water catchment area, Romania, the petitioner alleged that the government had been prioritising interests of this investor over interests of Romanian citizens and objected to the use of explosives in the vicinity of urban and tourist zones without consents of landholders.235 With regard to the exploratory works near Powidz and Trąbki Wielkie, Poland, the petitioners alleged that those works had been carried out in drinking water protection areas.236 With regard to the antifracking protests in Pungești, Romania, two separate petitions pertained to the alleged use of disproportionate force, such as riot police, removal of protestors’ camp, and prohibiting media from accessing the area of the protests.237
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In 2014, with regard to then negotiated Transatlantic Trade and Investment Partnership (TTIP), the Danish petitioner identified a number of public-health-related issues potentially stemming out of the TTIP agreement, among others including chemicals and fracking, and also generally denounced the lack of transparency in relation to negotiations on the TTIP on the EU’s side.238 With regard to exploratory works carried out in Sibioara, Romania, the petitioner alleged that those works had been located within a distance of 200 metres of homes and that the chemical waste had been dumped on the roadside and lake.239 With regard to planned exploratory works in Netherlands, the German petitioner was concerned about works intended to be carried out within 5 kilometres of the German border and proposed that such distance should be set at least 50 kilometres from Germany’s border.240 With regard to the protection of soil and water in the EU, the Spanish petitioner argued that the EU laws do not sufficiently address the risks stemming from fracking, opencast mining, or the use of cyanide in mining process etc.241
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In 2015, with regard to shale-related legislative developments, two separate petitions again called for the EU-wide ban on fracking.242 With regard to the Mediterranean basin, the Montenegrin petitioner claimed that the Habitats Directive and the EIA Directive had been systematically infringed by the Member States and called for an adoption of stricter legislation which would ban air guns and fracking in the exploration and production of natural gas.243 Finally, with regard to waste disposal, the German petitioner called for a creation of the ‘EU-wide, cross-national cadastre of contaminated sites’.244
232
Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment [2012] L 26 OJ 1–21. 233 See Appendix V, points 5 and 6. 234 ibid, point 7. 235 ibid, point 8. 236 ibid, point 9. 237 ibid, points 10 and 11. 238 ibid, point 12. 239 ibid, point 14. 240 ibid, point 15. 241 ibid, point 17 242 ibid, points 18 and 19. 243 ibid, point 20. 244 ibid, point 21.
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2.4. The SLO concept 75)
The SLO is a multifaceted, multidisciplinary and non-legal concept which has been well explained elsewhere mostly from political-science and sociological perspectives (see Appendix IV for various definition of the SLO): particularly in the report titled ‘Prerequisites for a social licence to operate in the (shale) gas industries’245 released in December 2016 (M4 SLO Report) by the M4ShaleGas research consortium which, like this project, was also financed by the European Commission within the Horizon 2020 scheme.246
76)
From a legal perspective and for the purposes of this report, we propose that the SLO in the shale gas industry or ‘regulatory framework on environmental impacts and community acceptance’ (i.e. the subject of this report) chiefly comes down to the engagement of the persons actually or potentially affected by shale gas-related operations of the developers at the level of: the legislative process with regard to laws affecting shale gas industry (see s 3), the preparation of various plans, programs and/or SEA which cover shale gas projects (see s 4), and specific projects (specific shale gas fields/wells, etc – see s 5).
77)
We also find that the engagement between public bodies at these three levels are chiefly done through: access to information such as on the progress of the legislative process and/or environment-related information, and public participation in the legislative process, preparation of environment-related plans and programmes, the SEA, the EIA.
78)
We believe that such approach to the concept of SLO is fully consistent for example with the recent document of the International Resource Panel Working Group (IRP) of the United Nations Environmental Programme (UNEP) titled ‘Towards a Sustainable Development Licence to Operate for the extractive sector’ which: summarises SLO as attempts “to secure the acceptance of mining activities by local communities and stake-holders, in order to build public trust in their activities and prevent social conflict,”247 and further adds that such attempts “are premised on engagement between mining companies, governments and civil society to ensure that mineral resource extraction contributes to national and local development, and that damaging impacts on host communities and the environment are mitigated or otherwise managed.”248
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Obviously, the threshold expectations set of various stakeholders is rarely confined to the strict compliance with regulations imposed by states/regulators.249 And, in the nonregulation territory, there is not general agreement among the developers as to what those expectations actually are and how to respond to them.250 Moreover, in contrast to the regulatory requirements which remain the same within specific jurisdictions, those expectations differ with regard to specific projects, depending on their geographical
245
See generally, Claudia Brändle, Aleksandra Lis, Torsten Fleischer, Darrick Evensen, Jessanne Mastop, M4ShaleGas - prerequisites for a social licence to operate in the (shale) gas industries (December 2016) D17.2 (M4 SLO Report). 246 M4 SLO Report (n 245), front page. 247 Ben Murray Milligan, Julius Gatune, Christina Bodouroglou, Elias Ayuk, Antonio Pedro, Paul Ekins and Bruno Oberle, 'Towards a Sustainable Development Licence to Operate for the extractive sector' UNEP (September 2017) IRP Consultation Paper, 3. 248 ibid. 249 Neil Gunningham, Robert A. Kagan, Dorothy Thornton. Social License and Environmental Protection: Why Businesses go beyond Compliance. Law and Social Inquiry. (2004) ;29 (2) 307, 308 250 ibid, 309.
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Deliverable D11.1 situation and local economic conditions.251 As Gunningham, Kagan and Thornton observe, the SLO: “implies the existence of independent, unidirectional and unambiguous pressures, whether from regulation, communities, or markets, that impact on corporations with sufficient force that they react to them. Yet we found that these external factors, rather than being independent, often gain their force through mutual interaction. Indeed, we found it more useful to think not only of social pressures, but also of regulatory and economic pressures, as terms or conditions of a multifaceted “license to operate.” In contrast with the image of unidirectional drivers, this concept captures the complexity of the relationship between the regulated enterprise and key stakeholders, and it accords with an important reality we observed: The relationship between the licensors and licensees is interactive, not unidirectional, and many of the license terms are open to interpretation, negotiation, and amendment.”252 80)
The developers might be inclined to meet various stakeholders’ expectations going beyond regulatory requirements for a number of reasons such as 1) a willingness to avoid boycott,253 or 2) a belief that downplaying such expectations would eventually lead to the adoption of stricter regulation.254 However, it is a matter of risk management rather than regulation.255 Therefore, from a legal perspective, we focus on the mentioned elements of the SLO reflecting what Gunningham, Kagan and Thornton called ‘procedural empowerment’, observing that 1) “[t]he regulatory license often extends the reach and impact of the social license, either by directly empowering social licensors, or by giving them access to information, which they can then use to pressure target enterprises,”256 and 2) “[l]aws requiring firm-wide disclosure of environmental information, can also empower local communities, albeit indirectly.”257
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Gunningham, Kagan and Thornton also observed that while procedural empowerment indeed allows various stakeholders to significantly influence the behaviour of developers, there exists a risk that it can be badly designed resulting in capricious or arbitrary demands, by: 1) ‘well-meaning’ disorganised communities incapable of formulating rational demands or formulating their demands in a competent manner, or 2) ‘small extremist elements’ who arguably take advantage of procedural empowerment in order to delay specific projects.258
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In terms of what good design for procedural empowerment means, for example the M4 SLO Report refers to works of Chilvers, according to whom ‘participatory practices’ (which more or less can be equated with procedural empowerment) should: “be representative of all those interested and affected by a decision or action and remove unnecessary barriers to participation (representativeness and inclusivity),”259 “allow all those involved to enter the discourse and put forward their views in interactive deliberation that develops mutual understanding between participants (fair deliberation),”260 “provide sufficient resources (information, expertise, time) for effective participation (access to resources),
251
ibid, 324. ibid, 329. 253 ibid, 334. 254 ibid, 330, 336. 255 ibid, 336. 256 ibid, 329. 257 ibid, 330. 258 ibid, 333, 337-338. 259 M4 SLO Report (n 245), 27; Jason Chilvers, 'Deliberating Competence: Theoretical and Practitioner Perspectives on Effective Participatory Appraisal Practice' (2008) 33(2) Science, Technology, & Human Values 155, 159. 260 ibid. 252
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Deliverable D11.1 “be transparent to all those inside and outside of the process about objectives, boundaries, and how participation relates to decision making (transparency and accountability),”261 “enhance social learning of all those involved, including participants, specialists, decision makers, and wider institutions (learning),262 “be conducted (managed and facilitated) in an independent and unbiased way (independence) ,”263 and “be cost-effective and timely (efficiency).”264
3.
Legislative Level
3.1. Law making in the EU 83)
The multidimensionality of the SLO (see s 2.3) implies that the public acceptance of the shale related activities in the first place needs to be addressed at the legislative level, i.e. through the public participation of individuals and NGOs interested in the shale-related legislativeworks, and through transparency of the legislative process.
3.1.1. EU’s shale-related competences 84)
The wide scope of the shale-related problems (see s 2.2) implies that the competences to regulate and govern shale industry are shared between the EU and Member states. The most general principle in this regard expressed in the Treaty on the European Union (“TEU”)265 is the principle of conferral. It sets forth that the EU may act only within the limits of the competences conferred upon it by the Member States in the primary legislation (i.e. the TEU along with the Treaty on the Functioning of the European Union or “TFEU” 266, collectively referred to as “Treaties”) to attain the objectives set out therein, a contrario implying that competences not conferred upon the EU in the Treaties remain with the Member States.267
3.1.1.1. EU’s exclusive competence 85)
As specified in the TFEU, the competences conferred upon the EU under the Treaties can be either exclusive, shared with the Member States or supplementary. Among the areas in which the EU has the exclusive competence (meaning that only the EU can legislate or adopt binding legal acts whereas Member States are able to do so themselves only if so empowered by the EU or in order to implement EU acts268 ) are: 1) “establishing competition rules necessary for the functioning of the internal market”269 relevant for the access of developer to mid-stream infrastructure and markets, and 2) “marine biological resources under the common fisheries policy”270 which might be relevant for the off-shore production of shale gas271.
261
ibid. M4 SLO Report (n 245), 28; Chilvers (n 259), 159. 263 ibid. 264 ibid. 265 Treaty on the European Union (consolidated version, 7 June 2016) C 202 OJ 13 (“TUE”). 266 Treaty on the Functioning of the European Union (consolidated version, 7 June 2016) C 202 OJ 47 (“TFUE”). 267 TEU (n 265), art 5.2 (first sentence) 268 TFEU (n 266), art 2.1. 269 ibid, art 3.1.b. 270 ibid, art 3.1.d. 271 The other areas of the EU’s exclusive competence include (i) customs union [see TFEU (n266), art 3.1.a], (ii) (iii) “monetary policy for eurozone members” [ibid, art 3.1.c], and (ii) “common commercial policy” [ibid, art 3.1.e]. 262
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3.1.1.2. EU’s shared and supplementary competence 86)
Among the areas in which the EU has the competence shared with the Member states (meaning that the Member States may only legislate and adopt legally binding acts in those areas to the extent that the EU has not exercised its competence272), are: 1) ‘environment’273 relevant for impact assessment of shale related activities, 2) trans-European networks (“TEN”),274 particularly trans-European energy networks (“TEN-E”)275 relevant for the midstream infrastructure, and 3) ‘energy’.276,277 In turn, among the areas in which the EU has the supplementary competence (meaning that the EU in such areas can carry out actions to support, coordinate or supplement the actions of the Member States, without superseding Member States’ competence in these areas278) is the ‘protection and improvement of human health’279 potentially relevant for health impacts of shale-related activities.280
3.1.1.3. Proportionality and subsidiarity principles 87)
EU’s competences are further confined with the principles of proportionality and subsidiarity. The principle of proportionality applies to all EU legislation and sets forth that the substance and the form of EU legislation must not exceed what is necessary to achieve the objectives of the primary legislation.281 In turn, the principle of subsidiarity applies where the EU has competence shared with the Member States or a supplementary competence (in other words where the EU does not have the exclusive competence to legislate) and sets forth that the EU should legislate in such areas only when the goals of the EU legislative actions cannot be achieved by the Member State and instead could be better achieved by legislating at the EU level.282
3.1.1.4. Procedural dimension 88)
The competence of the EU to legislate has also its procedural dimension, and the wide scope of the shale gas-related regulatory challenges implies that various shale gas-related legislative decisions made at the EU level need to be taken separately, by various majorities, and according to various procedural provisions. Moreover, depending on the field of potential shale gas-related regulation, the EU may adopt significantly differing legal measures such as binding regulations,283 directives,284 decisions,285 and non-binding
272
TFEU (n266), art 2.2. ibid, art 4.2.e. 274 ibid, art 4.2.h. 275 See The Group of Personal Representatives of the Heads of State, 'Trans-European networks. Report to the European Council.', (1995) Office for Official Publications of the European Communities ISBN 92-826-8995-6, 15,45-48; Progress Consulting S.r.l and Living Prospects Ltd., 'Local and regional impact of the Trans- European Energy Networks TEN-E with a focus on the forthcoming Energy Infrastructure package' European Union (2011) ISBN: 978-92-895-0692-2, DOI: 10.2863/76389; Progress Consulting S.r.l and Living Prospects Ltd., 'Local and regional impact of the Trans- European Energy Networks TEN-E with a focus on the forthcoming Energy Infrastructure package' European Union (2011) ISBN: 978-92-895-0692-2, DOI: 10.2863/76389. See also 'Trans - European Networks: A guide to the European Union ’s TENs Policy , with hyperlinks to sources of information within European Sources Online a nd on external websites' Cardiff Univeristy European Documentation Centre (2013) Information Guide accessed 10 August 2017. 276 TFEU (n266), art 4.2.i. 277 The other areas of the EU’s exclusive competence include (i) internal market [see TFEU (n266), art 4.2.a], (ii) social policy, for the aspects defined in this Treaty [ibid, art 4.2.b], (iii) economic, social and territorial cohesion [ibid, art 4.2.c], (iv) agriculture and fisheries, excluding the conservation of marine biological resources [ibid, art 4.2.d], (v) ‘consumer protection’ [ibid, art 4.2.f], (vi) ‘transport’ [ibid, art 4.2.g], (vii) ‘area of freedom, security and justice’ [ibid, art 4.2.j], and (viii) ‘common safety concerns in public health matters’ [ibid, art 4.2.k]. 278 TFEU (n266), art 2.5. 279 ibid, art 6.a. 280 The other areas of the EU’s supplementary competence include (i) industry [see TFEU (n266), art 6.b], (ii) culture [ibid, art 6.c], (iii) tourism [ibid, art 6.d], (iv) education, vocational training, youth and sport [ibid, art 6.e], (iv) civil protection [ibid, art 6.f], (v) administrative cooperation [ibid, art 6.g]. 281 TEU (n265), art 5.4. 282 ibid, art 5.2. 283 “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.” See TFEU (n266), art 288, second para. 273
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Deliverable D11.1 recommendations and opinions.286 The ordinary legislative procedure287 in principle applies to the TENs,288 environment,289 and energy.290 However, since the adoption of the Treaty of Lisbon,291 the TFEU has expressly confined the EU legislative competence in the field of energy and environment by requiring unanimity of the Member States when adopting “measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply,”292 i.e. in essence measures significantly affecting energy mixes of particular Member States. Another deviation from the ordinary legislative procedure is, for example, that the legislative measures in the field of competition (relevant for mid-stream gas infrastructure) need to be laid down by the Council293 rather than the Commission.
3.1.1.5. No competence areas 89)
The overview of the EU’s shale-related legislative competence reveals that there are crucial shale-related areas which have been completely left to the regulatory discretion of the Member States. For example, the EU does not have competence to regulate taxation of extractive industries such as through determining the amount of exploration/production authorisation fees, levels of royalties or rates of extractive-industry-specific income tax.294 Moreover, the TFEU expressly excludes the area of ‘property ownership’ from the scope of the EU’s legislative competence, implying that the Member States are free to regulate and govern matters such as the ownership of deposits, the distribution of royalties or the expropriation for landholders for the purposes of exploration/production operation without any interference by the EU lawmaker.295
284
“A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.” See ibid, art 288, third para. 285 “A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.” See ibid, art 288, fourth para. 286 “Recommendations and opinions shall have no binding force.” See ibid, TFEU (n266), art 288, fifth para. 287 The ordinary legislative procedure starts with the proposal submitted by the Commission to the Council and Parliament (TFEU (n266), art 294.2). A measure can be adopted in the first reading if the Council accept the Parliament’s position taken in the first reading (ibid, art 294.3-6). Otherwise (i.e. when the Council does not accepts Parliament’s position taken in the first reading and instead submits its own position or does not take any action) the parliament in the second reading approve the measure, reject it, or propose further amendments (ibid, art 294.7). In the case of amendments proposed by the parliament in the second reading, the Council can accept or reject such amendments acting by a qualified majority or unanimously in the case of Parliament’s amendments with a negative opinion issued by the Commission (ibid, art 294.8-9). In the case the parliament’s amendments proposed in the second reading are rejected, the conciliation committee composed of an equal number of the representative of the Parliament and the Council can reach an agreement as to the those amendments (yet the Council the Parliament need to confirm the agreement reached by the conciliation committee in the third reading) or otherwise the measure in question is deemed not adopted (ibid, art 294.11-14). See also European Parliament, 'Rules of Procedure' (January 2017) 8th parliamentary term 2014-2019, chap 3, rule 57-78. 288 “[G]uidelines or other measures” can be adopted in the field of the TENs. See TFEU (n266), art 171, first para. 289 Any measure like a regulation, directive or decision can be passed in the field of environment. See TFEU (n266),, art 192.1. By way of exception other procedures apply to the adoption of legislative measures relevant for the environment in the case of (i) ‘provisions primarily of a fiscal nature,” (ibid, art 192.2.a) (ii) “measures affecting: — town and country planning, — quantitative management of water resources or affecting, directly or indirectly, the availability of those resources, — land use, with the exception of waste management,” (ibid, art 192.2.b), and (iii) measures significantly affecting a Member State's choice between different energy energy sources and the general structure of its energy supply (ibid, art 192.2.c) However, Member States gathered in the Council can unanimously agree that such legislative actions on matters be adopted in line with ordinary legislative procedure (ibid, art 192.2 in fine). 290 Any measure like a regulation, directive or decision can be passed in the field of energy. See TFEU (n266), art 194.2 first para. However, “[s]uch measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c).” See ibid, art 194.2 second para. See also n289 for the content of TFUE art 192.2.c. 291 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (signed 13 December 2007, published 17 December 2007) OJ C 306, 1 (Lisbon Treaty). 292 See TFEU (n266), art 192.2.c and art 194.2 second para; Lisbon Treaty, art 147. See also n289. 293 The Council only needs to consult the Parliament. See TFEU (n266), art 103.1. But see (nError! Bookmark not defined.). 294 The competence of the EU with regard to fiscal matters is confined to “turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition.” See TFEU (n266), art 113. 295 “The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership.” See TFEU (n266), art 113. See also n289.
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3.1.2. Public participation in EU lawmaking 90)
The public participation and securing the SLO at the EU’s legislative level has been regulated with: 1) legislation generally addressing access to public information in the EU’s institutions, and 2) environment-specific legislation. The most general framework for the public participation in the legislative works of the EU has been provided in the primary legislation. The TEU provides for the concept of openness meaning that “decisions are taken as openly as possible and as closely as possible to the citizen,”296 whereas more specific provisions related to transparency have been provided in the TFEU. In addition, the Charter of Fundamental Rights of the European Union provides that “any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.”297
3.1.2.1. Public participation under the Treaties 91)
The TFEU, with regard to the transparency of legislative process rather generally mandates that 1) “[i]n order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies shall conduct their work as openly as possible,”298 2) “[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union's institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined … ”299 and 3) “[t]he European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures.” 300 The TFEU also leaves a lot of transparency-related discretion to the EU institutions by stipulating that the “[g]eneral principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.” 301
92)
It is also worth mentioning that, although the Commission in principle has a monopoly over legislative initiative in the EU302, there also exists a popular/citizens’ legislative initiative whereby at least one million of the EU citizens representing a significant number of Member States could ask the Commission to initiate, within its powers, a legislative process.303 The premise of this right is that citizens may believe “that a legal act of the Union is required for the purpose of implementing the Treaties,” 304 Thus EU citizens could potentially come up with a shale-related legislative initiative, particularly based on EU’s competences related to environment protection, in order to improve the SLO of the shale industry at the highest possible EU-wide level, in line with the actual expectations of the public.
93)
At the level of secondary legislation, the Regulation 211/2011 further specifies that the “significant number of Member States” means that, in at least a quarter of Member States, the number of citizens supporting an initiative must exceed the number of those Member States’ representatives to the Parliament multiplied by 750.305 Once the formal conditions
296
TEU (n265), art 1, 2nd para. Charter of Fundamental Rights of the European Union OFFICIAL JOURNAL of the European Union [2016] C 202 OJ 389. 298 TFEU (n266), art 15.1. 299 ibid, art 15.3, first para. 300 ibid, art 15.3, last para. 301 ibid, art 15.3, 2nd para. 302 „Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.” See TFEU (n266), article 17.2. 303 TEU (n265), art 11. See also, TFEU (n266) art 24. 304 TEU (n265), art 11. See also, Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative [2011] L 65 OJ 1–22 (Regulation 211/2011), art 2.1. 305 Regulation 211/2011 (n 304), art 2.1, 7.2. 297
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Deliverable D11.1 are met and the initiative is submitted to the Commission, the Commission shall 1) publish the initiative,306 2) receive the organisers of the initiative and discuss it with them,307 and 3) organise a public hearing at the Parliament during which the organisers shall be given a chance to present the initiative.308 Within three months of the initiative’s submission, the Commission shall issue a communication stating, along with a rationale, whether it intends to take the proposed legislative action or not,309 meaning that popular legislative initiative is not binding upon the Commission. 94)
Another instrument allowing direct interactions between individual and EU’s legislative bodies regulated directly in the Treaties is the right of petition to the European Parliament in a matter that affects the petitioner directly.310 Under Parliament’s rules of procedure,311 it is within the discretion of the committee competent for the subject matter of the petition to handle it either through: 1) a discussion in the committee and decide whether to invite petitioners to participate on the committee’s meeting or not, or 2) a written procedure.312 As a result of the petition, the committee may 1) take no action, 2) file a motion for a petition-related Parliament resolution,313 3) prepare a report on the “the application or interpretation of Union law or proposed changes to existing law.” 314 As discussed elsewhere in this report, a number of shale-related petitions have been filed in the recent years (see s 2.3.1, see also Appendix V).
95)
Finally, the activities of the European Ombudsman can contribute to improving shale gasrelated SLO at the level of EU law-making. Under the TFEU, such activities include 1) receiving, examining and reporting on complaints from EU’s citizens and residents including both natural and legal persons with regard to “instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role,”315 2) conducting enquiries on the Ombudsman’s own initiative or on the basis of received complaints,316 and 3) where maladministration is established, refer the case along with a report to the Parliament and the EU’s institution concerned.317 Until late 2017, the European Ombudsman carried out just one shale-relevant proceeding which was in relation to the alleged overrepresentation of shale-industry lobbyists in the ESTNUHE318 (see further, s 3.1.3).
3.1.2.2. Aarhus Convention 96)
EU’s environment-specific legislation on the access to environment-related public information largely comes down to implementing the provisions of the so-called Aarhus Convention319 prepared by the United Nations Economic Commission for Europe (UNECE)
306
ibid. art 10.1.a. ibid. art 10.1.b. 308 ibid. art 11. 309 ibid. art 10.1.c. 310 “Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to address, individually or in association with other citizens or persons, a petition to the European Parliament on a matter which comes within the Union's fields of activity and which affects him, her or it directly.” See TFEU (n266), art 227. 311 Rules of Procedure of the European Parliament (8th parliamentary term, January 2017) accessed 11 October 2017 (Rules of Procedure). 312 Rules of Procedure (n311), rule 216.2. 313 ibid. 314 ibid, rule 216.3. 315 TFEU (n266), art 228.1 1st para. See also, EC, Euratom, ‘Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties’ [1994] L 113 15-18 amended with [2002] L 92 OJ 13; (2008) L 189 OJ 25. 316 Ibid, art 228.1 2nd para. 317 Ibid. 318 See ESTNUHE Report (n 102). 319 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (done at Aarhus, Denmark, on 25 June 1998) (Aarhus Convention). 307
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Deliverable D11.1 and opened for signatures in June 1998. It is worth mentioning at this stage,320 that the Aarhus Convention, recalling transparency-related provisions among others of the Rio Declaration on Environment and Development321 and the European Charter on Environment and Health,322 is based on the premises that: to be able to assert the right to live in a healthy environment and observe the duty to protect and improve the environment, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, 323 and in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, [and] give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns.324 97)
The Aarhus Convention has as its objective coverage the panoply of publicly available environment-related information and as its subjective coverage the public authorities obliged to provide such information. As to subjective coverage, public authorities are defined broadly and include: “[g]overnment at national, regional and other level,” 325 “[n]atural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment,” 326 “[a]ny other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of (…)” governments or persons performing public administrative functions,”327 and “regional economic integration organizations constituted by sovereign States members of the Economic Commission for Europe to which their member States have transferred competence over matters governed by this Convention.” 328
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The Aarhus Convention is somewhat self-contradictory with regard to access to the environment-related information produced in the course of legislative process. On the one hand, article 8 mandates that each party to the Aarhus Convention shall “strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment,” 329 and to this end must: 1) fix time-frames sufficient for effective participation,330 2) publicise draft
320
Apart from the access and participation in environment-related legislative process, the primary focus of the Aarhus Convention to secure access to information and participation on decision-making process as to executive instruments such strategic environmental plans (see further, section 4.1) and individual administrative decisions (see further, section 5) made at the level of EU member states 321 “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” See UNCTAD, ‘Rio declaration on Environment and development’ (Rio de Janeiro, 3-14 June 1992) Report of the UNCTAD A/CONF.151/26 (Vol. I) Annex I (Rio Declaration), principle 10. 322 “Every individual is entitled to: • an environment conducive to the highest attainable level of health and wellbeing; • information and consultation on the state of the environment, and on plans, decisions and activities likely to affect both the environment and health; • participation in the decision-making process.” See WHO ‘European Charter on Environment and Health’ (Frankfurt-am-Main, 7- 8 December 1989), art 1. 323 Aarhus Convention (n 319), preamble. 324 ibid. 325 Ibid, art 1.2.a. 326 ibid. art 1.2.b. 327 ibid. art 1.2.c. 328 ibid. arts 1.2.c and 17. 329 ibid. art 8. 330 ibid. art 8.a.
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On the other hand, however, under the Aarhus Convention, the definition of public authorities “does not include bodies or institutions acting in a judicial or legislative capacity.”334 Nonetheless, the EU has elected to impose transparency standards delineated by the Aarhus Convention also on legislative bodies, leaving only judicial bodies out of the Aarhus Convention’s application (see s 3.1.2.4).
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As to objective coverage, the Aarhus Convention defines environmental information as “any information in written, visual, aural, electronic or any other material” 335 concerning: “a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making; (c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above;” 336
3.1.2.3. Regulation 1049/2001 101)
At the level of secondary legislation, general transparency-related principles expressed in the TEU and TFEU have been implemented in the Regulation 1049/2001337 whereas provisions of the Aarhus Convention (with regard to the EU institutions) have been implemented in the Regulation 1367/2006 also known as the Aarhus Regulation.338
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The Regulation 1049/2001 gives a right to access public information (i.e. ‘documents’339) to EU citizens and residents only,340 and its subjective coverage is limited to the Parliament, the Council and the Commission collectively referred to as ‘institutions’.341 The exceptions from the obligation to provide such information include the need to protect: public-interest-related confidential information including information related to 1) public security, 2) defence and military matters, 3) international relations, and 4) the financial, monetary or economic policy of the Community or a Member State,342
331
ibid. art 8.b. ibid. art 8.c. 333 ibid. art 8 in fine. 334 ibid. art 1.2 in fine. 335 ibid. art 1.3 in initio. 336 Ibid, art 1.3. 337 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] L 145 OJ 43–48 (Regulation 1049/2001). 338 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] L 264 13–19 (Aarhus Regulation). 339 Defined as “any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility.” See Regulation 1049/2001 (n 337) art 3.1. 340 ibid. art 2.1. 341 ibid. art 1. 342 ibid. art 4.a. 332
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Deliverable D11.1 the “privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data,” 343 the “commercial interests of a natural or legal person, including intellectual property,” 344 the confidentiality of court and administrative procedures, including information related to 1) “court proceedings and legal advice,” 345 and 2) “the purpose of inspections, investigations and audits” 346.347 103)
The institutions should also deny access to information, “unless there is an overriding public interest in disclosure,” in the case of documents pertaining to 1) “matter[s] where the decision has not been taken by the institution”348 and 2) “opinions for internal use as part of deliberations and preliminary consultations within the institution concerned” 349 – in both cases if the disclosure “would seriously undermine the institution's decision-making process.”350 A Member State can request an institution to maintain confidentiality of documents that originated from that Member State,351 whereas other third parties352 shall be consulted before disclosure of their documents to determine whether an exception applies, “unless it is clear that the document shall or shall not be disclosed.” 353 Analogically, Member States in possession of documents produced by the institutions, and asked to disclose them, shall first consult the institutions unless it is clear that the document shall or shall not be disclosed.354 The documents could only be kept confidential as long as their protection is justified, yet for not more than 30 years unless covered by the exceptions related to privacy, commercial interests and ‘sensitive documents.’355
3.1.2.4. Aarhus Regulation 1367/2006 104)
The Aarhus Regulation largely draws upon the framework provided in the Regulation 1049/2001.356 However, its objective coverage is fully aligned with the objective coverage of the Aarhus Convention.357 The relationship between the two regulations can be best described in the following way: the Aarhus Regulation draws upon Regulation 1049/2001 yet enables a broader access to environment-related information and decision-making process as required by the Aarhus Convention.
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Unlike under the Regulation 1049/2001, the Aarhus Regulation’s beneficiaries are not confined to EU’s citizens or residents but rather include any natural or legal person interested in gaining access to environmental information.358 Likewise, the scope of possible restrictions of the access to information is in principle narrower under the Aarhus Regulation than under the Regulation 1049/2001. Specifically, in the case of information relating to ‘commercial interests’359 or ‘investigations and audits,’360 an “overriding public interest”361 in
343
ibid. art 4.b. ibid. art 4.2 1st tiret. 345 ibid. art 4.2 2nd tiret. 346 ibid. art 4.2 3rd tiret. 347 However, the access to information related to commercial interests or legal proceedings (ns 344, 345, 346) shall only be denied “unless there is an overriding public interest in disclosure.” See ibid. art 4.2 in fine. 348 ibid. art 4.3. 349 ibid. 350 ibid. 351 ibid. art 4.5. 352 Defined as “any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and third countries.” See ibid. art 3.b. 353 ibid. art 4.4. 354 ibid. art 4.5. 355 ibid. art 4.7. 356 “Regulation (EC) No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.” See Aarhus Regulation (n 338), art 3.1. 357 ibid, preamble para 8. 358 ibid. 359 See n 345. 344
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Deliverable D11.1 the disclosure of such documents “shall be deemed to exist where the information requested relates to emissions into the environment.” 362 Moreover, in the case of other types of potentially restricted information “the grounds for refusal shall be interpreted in a restrictive way.”363 There is, however, one exception as, in addition to reasons justifying the refusal of information under the Regulation 1049/2001, the Aarhus Regulation also allows such refusal when “disclosure of the information would adversely affect the protection of the environment to which the information relates, such as the breeding sites of rare species.”364 106)
As far as the Aarhus Regulation’s subjective coverage is concerned, for consistency with the Aarhus Convention (see s 3.1.2.2), the Aarhus Regulation covers not only ‘institutions’ covered by the Regulation 1049/2001 (i.e. Commission, Council and Parliament) but rather any ‘community institution or body’ defined as “any public institution, body, office or agency established by, or on the basis of, the Treaty except when acting in a judicial or legislative capacity.”365 However, the role of the institutions covered by the Regulation 1049/2001 largely comes down to legislative functions. For consistency reasons, the Aarhus Regulations still partly applies to these institutions (also when acting in legislative capacity).366
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The Aarhus Regulation covers three main areas of access and participation, namely: 1) ‘access to environmental information’ which draws upon the procedural framework of the Regulation 1049/2001 modified as discussed in the previous paragraph,’367 2) ‘public participation concerning plans and programmes relating to the environment,’368 3) ‘internal review and access to justice.’369 Only the Aarhus Regulation’s provisions related to the first area apply to the EU institutions or bodies acting in their legislative capacities whereas provisions related to other two areas apply to the EU institutions or bodies acting in their executive capacities.
3.1.2.5. Parliament’s rules of procedure 108)
Finally, the participation of the public in the EU-level legislative process is also secured through provisions on transparency included in the Parliament’s rules of procedure. Foremost, meetings of Parliament’s committees, i.e. where actual legislative works are carried out, shall in principle be open to the public.370 Moreover, the rules of procedure reaffirm that the Parliament shall provide access to its documents as mandated by the TFEU (see s 3.1.2.1) 371 and as specified in the Regulation 1049/2001 (see s 3.1.2.3).372
360
See n 346. See n 347. 362 Aarhus Regulation (n 338), art 6.1. 363 ibid. 364 ibid. art 6.2. 365 ibid, art 2.c. 366 “The Aarhus Convention defines public authorities in a broad way, the basic concept being that wherever public authority is exercised, there should be rights for individuals and their organisations. It is therefore necessary that the Community institutions and bodies covered by this Regulation be defined in the same broad and functional way. Under the Aarhus Convention, Community institutions and bodies can be excluded from the scope of application of the Convention when acting in a judicial or legislative capacity. However, for reasons of consistency with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, the provisions on access to environmental information should apply to Community institutions and bodies acting in a legislative capacity.” See ibid. art 6.2. 367 Ibid, title II. 368 Ibid, title III. 369 Ibid, title IV. 370 Rules of Procedure (n311), rule 115.3. However, a given committee may 1) “decide to divide that agenda into items open to the public and items closed to the public,” or 2) if a meeting is held in camera, (…) make documents from the meeting available for public access.” See ibid. 371 See ibid. rule 116.1. 372 ibid. 361
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An overview of the instruments of public participation in the EU legislative process would not be complete without addressing the basics of how lobbying activities are regulated in the EU institutions. As at mid-2017, the Corporate Europe Observatory (CEO) estimated that about 25,000 lobbyists worked in the vicinity of the EU institutions and that about EUR 1.5b is spent on lobbying in the EU institutions annually.373 Thus it is crucial how: 1) the interests of organisations representing the general public, landholders, environmentalists etc. on the one hand and the shale industry on the other hand are balanced, and 2) lobbying carried out by paid professionals is differentiated from the political activism of the general public.374
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Matters related to energy and extractive industries seem to be particularly vulnerable to lobbying as the Corporate Europe Observatory (CEO), in the 4th edition of its periodical report on lobbying in Brussels released in September 2011375 (i.e. when the shale rush in Europe was about to gain momentum) classified the carbon lobby376 including major oil companies,377 as one of three major interest groups in Brussels next to the financial lobby and the food and biotech lobby.378 Based on the data retrieved from the EU transparency register,379 Transparency International also reported that, as at December 2015, among the top 20 companies with largest declared annual lobbying budget: 1) first came ExxonMobil with EUR 4,750,000, 2) third came Shell with EUR 4,500,000 3) eleventh came British Petroleum (BP) with EUR 2,750,000 and 4) fourteenth came Total with EUR 2,500,000.380
3.1.3.2. Lobbying in the Parliament 111)
In order to address the issues of lobbying, in the first place donations to EU-level politicians and political parties as well as the participation by the representatives of various stakeholders in the EU legislative process are regulated. As far as the donations are concerned, the Regulation 2004/2003381 that applied until the end of financial year 2017 required the EU-level political parties382 to release: 1) public statements on their revenue,
373
Corporate Europe Observatory, 'Lobby Planer Brussels: The Corporate Europe Observatory guide to the murky world of EU lobbying' (June 2017) (Lobby Planet Brussels 2017), 4. 374 Lobby Planet Brussels 2017 (n 373), 4. 375 Corporate Europe Observatory, 'Lobby Planet: Brussels The EU quarter' (4th edn September 2011), 41 (Lobby Planet Brussels 2011). See also generally, Rachel Tansey, Helen Burley, Antoine Simon, Natacha Cingotti, Samuel Fleet and Paul de Clerc, 'Fracking Brussels: A who's who of the shale gas lobby' Friend of the Earth Europe (July 2014) accessed 25 October 2017. 376 “Industry lobbying has been shown to have played a significant role in weakening and undermining the effectiveness of EU’s climate policies. This has resulted in an EU climate policy which relies on a combination of weak CO2 reduction measures, carbon trading and other dangerous pseudo-solutions such as agrofuels to tackle growing emissions – a raft of measures which have allowed large corporations to continue emitting and profiting from a new market.” Lobby Planet Brussels 2011 (n 375), 41. 377 Eg BP, Shell. See ibid. 41. 378 ibid. 2. 379 The lobbying register was introduced in 2008 by the Commission and evolved in 2011 into a joint register of the Commission and Parliament, and as for late 2017 still was not mandatory. See Lobby Planet Brussels 2011 (n 375), 9; Lobby Planet Brussels 2017 (n 373), 17, 19. 380 Daniel Freund, '7,000 and counting Lobby meetings of the European Commission' Transparency International (1 December 2015), 7. 381 Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their Funding [2004] L 297 OJ 1 as amended by Regulation (EC) No 1524/2007 of the European Parliament and of the Council of 18 December 2007 [2007] L 343 OJ 5 (Regulation 2004/2003). 382 Defined as “an association of citizens:- which pursues political objectives, and -which is either recognised by, or established in accordance with, the legal order of at least one Member State.” See Regulation 2004/2003 (n 381), art 2.1.. To be considers as political party at the EU-level, a political shall further: 1)“have legal personality in the Member State in which its seat is located“ (see ibid, art 3.1.a), 2) “be represented, in at least one quarter of Member States, by Members of the European Parliament or in the national Parliaments or regional Parliaments or in the regional assemblies, or it must have received, in at least one quarter of the Member States, at least three per cent of the votes cast in each of those Member States at the most recent European Parliament elections” (see ibid, art 3.1.b), 3) “observe, in particular in its programme and in its activities, the principles on which the European Union is founded, namely the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law” (see ibid, art 3.1.c), and 4) “it must have participated in elections to the European Parliament, or have expressed the intention to do so” (see ibid, art 3.1.d).
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The new Regulation 1141/2014389 replacing the Regulation 2004/2003 and applicable since January 2018,390 increased: 1) the limit of allowed annual donations by a single donor from EUR 12,000 to EUR 18,000,391 and 2) the amount of minor donations which do not need to be publicised from EUR 500 to EUR 1500 subject to the exception that donations in excess of EUR 1500 but below EUR 3000 shall be publicised only upon the donors’ consent.392 In addition, the Regulation 1141/2014 also extended the ban on donations from third countries from public authorities only, to also cover “any private entities based in a third country or from individuals from a third country who are not entitled to vote in elections to the European Parliament.” 393
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Despite such regulation against foreign (non-EU) interferences being in place, it has been an open secret that - while the pro-fracking lobby has mostly worked in the vicinity of the European Commission (see s 3.1.3.3) – foreign groups of interest still could seamlessly lobby against fracking in the vicinity of the Parliament.394 Allegations about Russian interference with the European debate on the development of unconventional hydrocarbons were expressed by Europe’s highest profile politicians.395 Nonetheless such allegations cut no ice in terms of tightening rules on donations to the European parties despite the existence of more general allegations about political links between some mostly-euro-sceptical parties in a number of Member States and the Russian government which had been expressed by proEU and/or pro-transatlantic media outlets for many years now.396
383
Regulation 2004/2003 (n 381) art 7.1.a. Ibid, art 7.1.b. 385 Ibid, art 7.2.a. 386 Ibid, art 7.2.c. 387 Except for contributions from 1) national-level political parties and 2) national-level political foundations which are members of EUlevel political foundations. See ibid, arts 7.2.d, 7.3, 7.4. 388 Ibid, art 7.2.e. 389 Regulation (EU, EURATOM) No 1141/2014 of the European Parliament and of the Council of 22 October 2014 on the statute and funding of European political parties and European political foundations [2014] L 317 OJ 1 (Regulation 1141/2014). 390 Regulation 1141/2014 (n 389), arts 40, 41. 391 ibid. art 20.1. 392 ibid. art 20.2. 393 ibid. art 20.4.d. 394 See generally, J. Selleslaghs, O. Øye and J. Selleslaghs, ‘Lobbying Shale Gas in Europe’ (May 2012) 17 accessed 1 May 2018, 9-12; Keith C. Smith, ‘Unconvetional Gas abd Europe Security:Politics and Foreign Policy of Fracking in Europe’ Center for Strategic and International Studies Europe Program (2012) 14 accessed 1 May 2018. 395 For example, in 2014 Anders Fogh Rasmussen (then NATO’s secretary-general), in the context of fracking stated that “[he had ] met allies who can report that Russia, as part of their sophisticated information and disinformation operations, engaged actively with so-called non-governmental organisations - environmental organisations working against shale gas - to maintain European dependence on imported Russian gas.” See Fiona Harvey, 'Russia 'secretly working with environmentalists to oppose fracking' (Guardian,20 June 2014) accessed 25 October 2017. See also, Ben Webster, ‘Russian agents secretly working to undermine fracking, says Nato chief’ (Times, 19 June 2014) accessed 25 October 2017; James Edgar, ‘Russia in secret plot against fracking, Nato chief says’ (Telegraph, 19 June 2014) accessed 25 October 2017. 396 See generally, Andrew Rettman 'Dirty Russian money buying influence in EU, MEPs warn' Euobserver (13 December 2016) accessed 25 October 2017; Alina Polyakova, 'The Russian Plot against Europe' (Atlantic Council, 17 November 2016) accessed 25 October 2017; Péter Krekó, Marie Macaulay, Csaba Molnár, Lóránt Győri, 'Europe’s New Pro-Putin Coalition: the Parties of ‘No’' (The Institute of Modern Russia, 3 August 2015 ). accessed 25 October 2017; Antonis Klapsis, 'An Unholly Alliance: The European Far Right and Putin’s Russia' Wilfried Martens Centre for European 384
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3.1.3.3. Lobbying in the Commission 114)
As far as the regulation of lobbying in the vicinity of the Commission is concerned, the Decision C(2016) 3301397 regulates the activities of ‘experts groups’ established “by the Commission or its departments for the purpose of providing them with advice and expertise (…)”398 and involved in activities such as: 1) “the preparation of legislative proposals and policy initiatives,”399 2) “the preparation of delegated acts,” 400 3) “the implementation of Union legislation, programmes and policies, as well as coordination and cooperation with Member States and stakeholders in that regard,”401 and 4) “the early preparation of implementing acts, before submission to the committee in accordance with Regulation (EU) N°182/2011[402].”403 The experts groups can either be formal404 or informal, 405 and professional lobbyists as well as lobbying organisations can only be appointed as members of such groups if they are listed in the transparency register406 whereas individuals who claim to act “in their personal capacity, […] independently and in the public interest”407 shall instead submit declarations of interests (DOIs) to the relevant departments of the Commission.408
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The highest profile controversy with regard to the participation of lobbyist representing the shale industry in the works of the EU institutions pertained to the composition of the ESTNUHE409. The Guardian reported in March 2015 the representatives of the Friends of the Earth Europe organisation left the ESTNUHE claiming that there had existed an alleged conflict of interest in the case of persons managing this body.410 Specifically, Friends of the Earth Europe supported by the CEO alleged that:
Studies (2015)
