Legal issues on shale gas activities raised in petitions received by the European Parliament Committee on Petitions

Outline Petitions claims A new EU shale gas law The Water Framework Directive The EIA Directive The EU legal framework for public participation and consultation EU ban of shale gas activities Policy framework Conclusions

Petitions claims Lack of EU regulatory initiative on shale gas: No complete and detailed analysis of the EU legal framework No specific EU legislation regulating shale oil and gas mining activities Exemptions under the EU water legislation for water abstraction Impacts of hydraulic fracturing on water according to the WFD 2000/60 including the potential risks from the chemical substances used EIA Directive threshold requiring compulsory environmental impact assessment is inadequate for shale oil and gas industrial activities Shale gas developments goes against the EU energy decarbonisation policy

A new EU shale gas law The lack of EU regulatory initiative on shale gas The European Commission in a process of assessing whether the current EU legal framework is applicable and appropriate. –Two call of tenders to feed-in this assessment + three studies published –One option under scrutiny: a risk management framework for shale gas No comprehensive EU mining framework that takes into account the specificities of shale gas extractions. Only four directives on mining: –Waste mining Directive 2006/21/EC - permits based on BAT –1994/22/EC Directive on authorisations conditions for hydrocarbon production - specificities of shale gas facilities, well construction … –One potential option: the adoption of a new mining legislation regulating the exploration and exploitation of shale oil and gas Additional gaps: EU legislation ruling GHG from shale gas –GHG in EIA, methane under ETS or IED (ELV)

The Water Framework Directive The Water Framework Directive 2000/60/EC (WFD) aims at achieving « good ecological and chemical status » of EU waters by –Prevent deterioration of groundwater from point sources –Criteria for EIA of fracturing on groundwater Derogation for water abstraction authorisation controls if no significant impacts (Art 11(3)(e) WFD) do not apply to shale gas The groundwater Directive 2006/118/EC does not regulate water abstraction authorisations and derogations Legal uncertainty: Article 11(3)(j) of the WFD on authorisations for injections of water containing substances from mining or hydrocarbon production – EC interpretation

The EIA Directive No specific reference to shale gas activities in Annexes to the EIA 2011/92/EU Directive –Annex I point 14 for activities requiring EIA –Annex II(2)(d) and (e)) EIA required by Member States, case by case Current Annex I threshold on gas exploitation is inadequate for shale gas Specific reference to shale gas activities requiring compulsory EIA is necessary: –Legal uncertainty –Potential divergent interpretations of the EIA Directive by Member States –The environmental risks derived from the use of the fracking technology during the extraction of shale gas

The EU legal framework for public participation and consultation Directive 2003/35/EC adopted to comply with Aarhus Convention Public participation requirements in EIA Directive and IED Directive Uncertainty on shale gas projects covered by the scope of the EIA Directive and the IED Directive, Uncertain that public participation requirements would apply to shale gas project permitting procedures in Member States. Need for a clear provisions requiring a public consultation procedure as part of the permitting process for shale gas extraction projects

EU ban of shale gas activities The EU has competence to modify any existing legislation under energy or environmental policy The EU has competence to ensure compliance (Art 17 TEU) Lisbon Treaty: EU does not have competence to ban shale gas production if the legislation adopted as part of the energy policy. Measures affecting Member States choice of energy sources and structure of energy supply (Art. 194(2)) The EU could have competence to ban shale gas production under environmental policy objectives – but it is an energy matter The EU has competence to impose conditions to shale gas exploitation justified under environmental policy objectives Measures significantly affecting Member States choice between different energy sources and structure of energy supply require unanimity voting by the Council (Art. 192(2))

Policy framework Scientific debate on the impact of shale gas activities Political debate: sensitive issue Balancing economic interest and energy security objectives with environmental protection objectives including decarbonisation of energy system and EU target to reduce GHG 80-95% by 2050 Investment decisions in shale gas might affect investments in renewable and its role in the EU energy system

Conclusions There is a need for new clear EU legal provisions conforming an appropriate legal framework to regulate specificities of shale gas and enable sustainable shale gas extraction (environmental protection) The Commission: a risk management framework for shale gas? There is EU competence to modify existing legislation and adopt new rules under environmental objectives (Art 192(1) and (2)). A ban of shale gas production affects Member States energy sovereignty Shale gas: EU energy security objectives and EU objectives for decarbonisation and development of renewable sources of energy