As we reported earlier last week, on 22 January, the Commission adopted two key documents determining the future regulatory framework on shale gas exploration and extraction in the European Union and its Member States. The European institutions, contrary to what has been asked for by many non-governmental organizations and citizen initiatives, did not adopt a legally binding Directive but decided to opt for minimum principles for shale gas activities in form of a non- binding recommendation. A Communication provides background information the broader European policy surrounding the issue, focusing amongst others on the potential of shale gas in the EU (16 trillion cubic meters technically recoverable resources) and the environmental risks and public concerns and the protection of the environment, the climate and public health. Further, a recommendation recognizes the specific challenges the hydraulic fracturing technology poses for the environment and human health. In general, the recommendation is very well drafted and contains principles concerning planning, installation assessment, permits, operational and environmental performance and closure, and public participation and dissemination of information, thus includes guidance for all steps along the value chain. The only pitfall is that has a non-binding character and that it is not drafted as a proposal for a Directive (or Regulation) on the issue.
The Recommendation focusses on risk assessment as one of the key principles. Accordingly, it foresees a risk assessment at the selection stage of the production site and baseline studies before the operation starts covering all elements of the environment. Monitoring of the activities is required at all stages. Also, the definition of ‘high volume hydraulic fracturing’ including injection activities of minimum 1000m3 water per stage or 10000 m3 water for the entire fracturing process into a well is believed to cover all fracturing activities seeking to become commercial undertakings.
The Commission recommends the preparation of a strategic environmental assessment on the planning stage of the undertaking; which is not surprising as this is generally done for large scale projects. Interesting is however the reference to the Environmental Impact Assessment Directive, as the Council, contrary to the Parliament’s voting, just blocked the inclusion of shale gas activities into Annex I of the Directive requiring a mandatory EIA. An EIA for shale gas activities thus remains subject to screening and scoping of the individual Member States. In this regard the recommendation stresses the need to consult the public affected at a very early stage and offer effective participation tools.
Regarding permitting, the document stresses the obvious need to coordinate the permitting process in cases where more than one competent authority and/or operator is evolved or more than one permit is needed for a project phase. This is especially important for shale gas wells, as several elements of the environment are affected but also since regulatory activities have to consider cumulative impacts of an entire drilling site. However, one would have hoped and expected that coordination is usually the case with large scale projects.
A key need and a highlight of the recommendation is the requirement to carry out baseline studies for all elements, inter alia, air, water, soil, seismicity, biodiversity and infrastructure. These baseline studies shall be complemented by the study of the environmental status of the installation and its surrounding during and after high- volume fracturing activities.
Member States have 6 months to integrate and apply these requirements on a national basis and from December 2014 onward inform the Commission of the measures taken. The Commission will monitor the application of these recommendations.
The recommendation does not provide new munition for either proponents or opponents of the activity. It remains to be seen how Member States implement these recommendations in practice and whether such minimum principles are enough to regulate an activity which is associated so many uncertainties and faces public opposition and political debate in nearly all Member States. A strict interpretation of the precautionary principle would certainly ask for “more”; but “more” might come in the future: the Commission certainly buys time with these minimum principles, certainly having the European elections in spring 2014 in mind.