In a recent blog, I discussed the numerous dangers of the prospect of exploiting shale gas (fracking) in Europe. Fracking poses serious dangers to the health of the environment and people, including the leakage of potent greenhouse gases, the chemical contamination of soils and water supplies, and the destruction of the ecosystems and biodiversity that are essential to our way of life. In this follow-up post, I’ll be discussing a number of questions relating to what the European Union, and we as European citizens, can do to ensure that shale gas stays in the ground.
What powers does the EU have on this issue?
The European Union is governed using the principle of subsidiarity, which aims to ensure that decisions are taken as closely as possible to the citizen. According to this principle, the Union “does not take action (except in the areas that fall within its exclusive competence), unless it is more effective than action taken at national, regional or local level.”
Whilst some argue that legislation governing shale gas would be more appropriate at a national level, the Commission rightly points out that the impacts of shale gas “can be not only local and regional but also have cross-cutting transboundary environmental implications: impacts to surface and ground waters, as well as to air quality do not respect national borders, so that impacts on one country can give rise to, or worsen pollution problems in other countries.” The need to ensure a coherent approach to these cross-border impacts is the reason the EU institutions are considering acting on shale gas, and acting in accordance with the subsidiarity principle.
There is, however, a further complication. Those who do not want to see strong EU legislation on shale gas extraction often invoke a clause in the Treaty on the Functioning of the European Union (Article 192), which states that, “Such 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.” Some argue that this prevents the EU introducing binding regulations on fracking. But I have also heard this interpretation of the clause contested by environmental groups.
Citizen action to protect people and the environment from fracking will therefore be important at a national level, as well as at the European level. The current lack of stringent EU legislation does not prevent individual Member States taking a stronger stance against fracking. Member States can introduce stronger environmental legislation than is required by EU legislation, and already several countries, including France and Bulgaria have introduced moratoria on fracking. There are, however, a number of other European countries including Poland and the UK that have already carried out a number of shale gas exploration drills and are intent on beginning fracking for shale gas as soon as possible. These countries are reluctant to introduce stronger legislation.
What is the Commission doing?
In January 2012, the Commission published an overview stating that the existing legislation was sufficient and that no further legislation on fracking was required. However, later that year, in November 2012, the Parliament issued two resolutions calling on the Commission to propose more robust regulation on in order to address the environmental concerns regarding fracking. The Commission’s Directorate General (DG) for Environment, working together with DG for Climate Action and DG Energy, is now formulating a framework, expected at the end of 2013, which will aim to identify and manage the risks of shale gas extraction. As part of this process the Commission is undertaking further impact assessments and has conducted a public consultation which received over 22,000 responses (see QCEA’s response here).
What can we expect?
Whilst the Commission repeatedly states that it is too early to pre-empt the outcomes of its impact assessments, possible options for the proposed framework include:
- Do nothing; the existing legislation is deemed sufficient.
- Develop information exchange and guidance on best practices, and encourage voluntary approaches by the industry.
- Clarify through guidelines how this existing legislation will relate to shale gas, but without amending it in any way.
- Amend or revise existing EU legislation that relates to shale gas (such as the Water Framework Directive or the Environmental Impact Assessment Directive, the latter of which is currently under review anyway).
- Develop a comprehensive piece of EU legislation that deals specifically with unconventional fossil fuels.
As the Commission states, “the underlying question is whether the current legal framework is adapted for the use of these more novel practices in Europe, and whether it is fit to manage potential new environmental risks of unconventional fossil fuels projects.”
In the Commission’s public consultation, stakeholders were asked to state to what extent they supported the options listed above. ‘Do nothing’ was the least favoured option, by a significant margin. The majority of organisations that responded favoured ‘introducing a comprehensive and specific piece of EU legislation’. Amongst the responses from individuals, ‘clarifying existing legislation through guidelines’ was the most popular option with ‘specific, comprehensive legislation’ coming a close second. (Of course, there is no reason why measures to clarify existing legislation and introduction of new legislation should be mutually exclusive.)
Despite the views expressed by the public, it is unlikely that the Commission will propose the strongest option – a comprehensive and specific piece of EU legislation that is legally binding – owing to contention about the extent to which this issue falls within the EU’s competences.
Nonetheless, we must continue to speak out against fracking and in favour of strong legislation, in order to ensure that the Commission’s proposal is a strong as it possibly can be. We must not permit lobbying or an inaccurate interpretation of the treaties to weaken legislation that is essential in protecting human and environmental well-being.
What do we want to see?
QCEA advocates a transparent, fair and accurate framework that is not unbalanced by industrial lobbying and that does not prioritise short-term economic gain over environmental and social well-being. Any impact assessment must take into account the full life-cycle of the shale gas wells and the quantity of wells envisaged. The EU has made commitments to renewables, emissions reduction and biodiversity. It is highly unlikely that we will fulfil these commitments if we insist on pursuing shale gas extraction. In response to this, and taking into account the EU’s proportionality principle, QCEA maintains that the only responsible action would be for the EU to legislate for a Union-wide ban on fracking.
It is only through prohibiting fracking that dangers to human health, the stability of our global climate, and the maintenance of our environment, can be prevented.
If the treaties do indeed render an EU-wide ban unworkable, then existing legislation that relates to shale gas (such as the Environmental Impact Assessment Directive and the Strategic Environmental Assessment Directive) must be significantly adapted and rigorously enforced. It must ensure that each proposal for shale gas exploration and drilling is fully assessed, and refused if it fails to meet the highest and most stringent criteria put in place to protect human well-being as well as our air, water, and soil. If it emerges that we cannot introduce more comprehensive, specific and binding legislation at a European level, there is nothing to prevent us doing so at a national level.
‘What can I do?’
If the framework proposal is completed by the Commission at the end of 2013, as is currently timelined, it is likely that the Parliament and Council will not decide on this until after the 2014 European elections (22nd – 25th May 2014). This means that the framework could become an important election issue, and we can let MEPs know that their stance on fracking will be something that we will be considering when we cast our vote.
QCEA will be following the discussions, so follow our blog, twitter, or sign up to QCEA’s action alerts and we’ll let you know when there are opportunities for you to make your views on fracking heard by the EU institutions.
In the meantime, have a look for campaigns that are happening at a national level and consider adding your voice to these. As mentioned above, legislation will be needed at multiple levels.
 European Commission, (2012) Roadmap: environmental assessment framework to enable a safe and secure unconventional hydrocarbon (e.g. shale gas) extraction, p2, http://ec.europa.eu/governance/impact/planned_ia/docs/2013_env_004_unconvential_hydrocarbon_extraction_en.pdf
 EU law states that measures should not go beyond what is proportionate in relation to the objectives to be achieved.