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European Energy and Environmental Law and its Ability to Regulate the Specific Challenges of Unconventional Gas Extraction

Leonie Reins

To adapt to newly emerging environmental and energy challenges, European energy and environmental law has undergone many revisions and changes throughout the past 30 years. The successful regulation of all environmental aspects of human activities, and the interaction between environmental and energy priorities, has proven to be challenging. One emerging subject in both such areas of law, which is testimony to this challenge, is the extraction of unconventional gas resources, such as shale gas, which is a possible response to both increasing energy demand in the European Union and dependence on gas imports from third countries such as Russia. The large scale and manipulative nature of hydraulic fracturing techniques elicits a mixed response due to a large realm of unknowns, not only about externalities but also concerning the ability of the technology to deliver. Characterised by uncertainties and promises to address climate change, shale gas extraction raises several technical, ethical and legal issues. Recent media coverage of shale gas has focused on the geo-political impacts, rather than on the regulatory site. Shale gas exploration inherently has to two different angles to it: one of energy exploration, and the associated external policy implications; and one of environmental concerns.This paper will, (a) assess the current regulatory regime in place on the basis of general environmental and energy law criteria and principles included in the Titles XX and XXI of the Treaty of the Functioning of the European Union (TFEU). Further it will (b) analyse other cross cutting issues of energy and environmental law, such as Carbon Capture and Storage (CCS), mining, and the waste material versus waste product approach. The paper is departing from the assumption that the current regulatory framework applicable to shale gas activities does not allow a complete, overall, coherent and integrated regulation of unconventional gas. The applicable Directives largely have been drafted to ensure a specific aim, without regard to cross- cutting issues. Further, an analysis of the current procedure of dealing with cross- cutting energy issues, like the regulation of mining, CCS and the waste material versus waste product approach will be given, since these issues affect also several elements if the environment and are not regulated in an integrative way. The Carbon Capture and Storage strategy envisages the storage of CO² in deep geological formations, deep in the ocean or in mineral carbonates. Within the EU, the storage form applied is mostly the storage of gas in deep geological formations, salines and former oil and gas fields. A specific Directive has been drafted in order to regulate the activity. Further, the mining regulatory framework in the European Union includes another interesting point of comparison. The EU is the only jurisdiction where specific legislation exists in respect of the treatment of mining waste, a result of past experience. The accident in Romania (Baia Mare) in 2000 led the EU to revise its existing legislation, and to the adoption of the Directive 2006/21/EC on the management of waste from extractive industries. Not only does the Directive contain provisions applicable to the generated mining waste, it also contains specific rules to prevent the worsening of water quality. The waste management plan, which operators need to establish, should contain “measures for the prevention of water status deterioration in accordance with Directive 2000/60/EC (WFD)”. The paper will examine whether in the mining sector, according to the established criteria, regulation is integrated and coherent, as well as which parallels can be established with the unconventional gas sector. As a third cross- cutting issue, the Waste Material versus Waste Product approach will be highlighted. EU waste policy has for a long time employed a waste product approach: it regulates waste cars, waste electric and electronic equipment, waste batteries, mining waste, packaging waste, etc. The waste products approach means that one material, e.g. PVC, is regulated differently, depending on the product in which it ends up. This would not seem coherent, and the EU is studying ways to remedy this.



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