Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

national interest and an imperative reason of overriding public interest. Furthermore, the integration
and environmental principles require, as mentioned with regard to the fragmented nature of the
regulation earlier, environmental requirements to be included in the current and upcoming shale
gas regulation and to provide for a centralised regulation in order to overcome (environmental)
gaps. In this manner, the environmental concerns can be tackled at an earlier stage. Moreover, the
environmental principles are of special relevance for the issue of the protection of drinking water. In
the Draft MSL there are several aspects which could be considered adjusting with regard to these
principles. The zone of 1000 metres and the non-exclusion of bore free zones and the areas
appointed by the province are especially relevant in this regard. The precautionary principle comes
particularly into play with the 1000 metres zone, where no scientific evidence is available to
support this choice. There is much (scientific) uncertainty on whether this will exclude the risks of
contamination of the essential drinking and ground water areas. This is especially remarkable,
since it is very difficult to purify those areas, once contaminated. Therefore a strict precautionary
approach should be taken, which is currently missing. Moreover, with regard to the bore free zones
and areas appointed by the provinces, the prevention principle is of special importance. The
Minister motivates the non-exclusion of those areas by stating that this is not possible because the
Model PMV does not provide for this. This line of reasoning is in contrast with the prevention
principle, which requires competent authorities (such as the Minister of Economic Affairs) to be
open-minded. Finally, with all those areas (1000 metres zone, bore free zones and appointed
zones by the province) it is questionable whether it complies with the test of the precautionary
principle that if actions are taken with certain risks (which is certainly the case here with regard to
the drinking water), they must be acceptable to the society on which the risk is imposed. This
acceptability has already come under attack by several members of the Dutch Parliament. It would
be more in line with the environmental principles to exclude all those zones.
Another issue is the problem of overriding authorities. Here, the decentralisation, precautionary
and prevention principle can be helpful. First of all, with regard to the decentralisation principle, it
can be argued that overriding powers should only be invoked when absolutely necessary. The ratio
of the decentralisation principle is that if possible, the lowest authority (closest to the citizens)
should act. Only if necessary should the State use its overriding powers to overrule a competence
which normally belongs to the provinces or municipalities. In the case of shale gas activities, the
point of view of the provinces and municipalities (and their citizens) is really clear: they object.
However, the State still seems very willing to research the possibilities hereof. In view of the ratio
of the decentralisation principle (decision-making as close as possible to citizens, to take due
account of their interests) the current extensive use of the overriding powers seems debatable.
However, with regard to drinking water protection, it would be an encouraging development if the
State would use its overriding powers. Nevertheless, in the current case the overriding powers are
not invoked for drinking water reasons, but for energy supply reasons. This latter reasoning is not
in line with the environmental principles – as already discussed with regard to the issue of the
protection of drinking water earlier – which point to a better environmental protection of the
different (drinking water) zones.
Furthermore, the problem of conflicting interests (especially between drinking water and energy)
should be discussed with regard to the precautionary and prevention principles. This balancing act
is very delicate and political. However, with regard to the environmental principles, the severe risk
of contamination, the fact that there are no alternatives (not now, nor in the future), it is arguable
that the weighing should conclude in the favour of drinking water. Therefore, with reference to the
prior paragraph on overriding authorities, it can be argued that the State should act its overriding
powers in favour of the protection of drinking water instead of for the security of energy supply.
Finally, the combination of the integration principle and the prevention principle could have
importance for the question whether investments in shale gas activities would hinder the
transition to renewable energy. The prevention principle – in conjunction with the principle of
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