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

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3 Current European legislation on shale gas In this chapter and the following chapter, the legislation on shale gas will be set out. First, the EU legislation will be reviewed, since this is relevant to keep in mind when discussing the Dutch legislation on shale gas (Chapter 4). This thesis only concentrates on the environmental aspects of EU legislation that could be of relevance for shale gas activities. Moreover, due to the length and scope of this thesis, only the most important and relevant legislation will be reviewed. 75 Before setting out the latest developments on EU legislation regarding shale gas, the legal base from the Lisbon Treaty regarding energy policy will be elaborated, after which the following EU legislation will be discussed: the Environmental Impact Assessment Directive, the Water Framework Directive (with daughter directives), the REACH Regulation, the Mining Waste Directive, the Habitat and Bird Directives, the Hydrocarbons Directive and finally some comments on the Seveso III Directive and the Environmental Liability Directive. This chapter will be concluded with some remarks on the problems that pop up with the current EU legislation. 3.1 The Lisbon Treaty Since the coming into force of the Treaty of Lisbon, there is a whole title (Title XXI) dedicated to “energy”. This is inserted in Part Three of the Treaty on the Functioning of the European Union ('TFEU'), entitled ‘Union policies and internal actions’. Another title (Title XX) is dedicated to the "environment". In addition, the subject of the environment has since the Lisbon Treaty moved from outside the scope of EU law into one of the shared competences. 76 In Title XX of the TFEU (concerning the environment), Article 191 declares: 1. Union policy on the environment shall contribute to pursuit of the following objectives: - preserving, protecting and improving the quality of the environment, - protecting human health, - prudent and rational utilisation of natural resources, - promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. 2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union. 3. In preparing its policy on the environment, the Union shall take account of: - available scientific and technical data, - environmental conditions in the various regions of the Union, 75 Inter alia the following legislation will not be discussed: Regulation (EC) n° 528/2012 concerning the making available on the market and use of biocidal products and Directive 98/8/EC concerning the placing of biocidal products on the market; Directive 96/82/EC on the control of major-accident hazards involving dangerous substances; Directive 2010/75/EC on industrial emissions (integrated pollution prevention and control); Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading; Directive 2002/49/EC relating to the assessment and management of environmental noise; Council Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances; Council Directive 96/29/Euratom laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation; Directive 2000/14/EC on the approximation of the laws of the Member States relating to the noise emission in the environment by equipment for use outdoors; Directive 2003/4/EC on public access to environmental information; Council Directive 92/91/EEC concerning the minimum requirements for improving the safety and health protection of workers in the mineral- extracting industries through drilling; Council Directive 91/271/EEC concerning urban waste-water treatment; Directive 2008/98/EC on waste; and Regulation (EC) n° 1013/2006 on shipments of waste. 76 Article 4, paragraph 2, sub e, TFEU. 18
- the potential benefits and costs of action or lack of action, - the economic and social development of the Union as a whole and the balanced development of its regions. (…) The principles mentioned in paragraph 2 will be further elaborated in Chapter 5. Pursuant to Article 193, Member States are allowed to maintain or introduce more stringent protective measures. Such measures must be compatible with the Treaties and shall be notified to the Commission. Title XXI of the TFEU concerns energy. Article 194 TFEU alone constitutes this title, which states the following: 1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to: a) ensure the functioning of the energy market; b) ensure security of energy supply in the Union; c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and d) promote the interconnection of energy networks. 2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions. 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, without prejudice to Article 192(2)(c). 3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature. This article has provided for an express legal basis for the EU to establish Union policy on energy. If necessary to achieve the objectives mentioned in paragraph 1, EU acts shall be established. This provision will apply to all acts adopted by the EU in the energy sector which are intended to allow the implementation of those objectives. However, this applies without prejudice to the application of other provisions of the Treaties, such as the more specific provisions on energy. An example of this is Article 122 TFEU on which measures can be taken if severe difficulties arise in supply, notably in the area of energy. Another example is Article 170 TFEU on which the Union shall contribute to the establishment and development of trans-European networks in the area of inter alia energy infrastructures. Also other competences that the Union has under other Treaty provisions may apply, “even if the measures at issue also pursue one of the objectives of the energy policy stated in Article 194(1).” 77 In a case between the European Parliament and the Council, the Court of Justice had to determine whether the legal basis for an EU act, having the aim of the collection of information in the energy sector, was Article 337 or Article 194(2) TFEU. 78 To answer this question, the Court stated that [It] must be examined whether that act, as regards its aim and content, may be considered necessary to achieve the objectives specifically assigned to the European Union policy on energy by Article 194(1) TFEU. If so, since the collection of information may be treated in the same way as a component of that policy, the European Union act which adopts it must be based on Article 194(2) TFEU. A European Union act cannot therefore come under Article 337 TFEU solely because it adopts a system of collection of information (see, by analogy, Commission v Council, paragraph 22). 79 77 Case C-490/10, European Parliament v. Council of the European Union, not yet published, paragraph 67. 78 Case C-490/10, European Parliament v. Council of the European Union, not yet published. 79 Case C-490/10, European Parliament v. Council of the European Union, not yet published, paragraph 68. 19
Page 1: Shale gas extraction: In line with
Page 4 and 5: Index 1 Introduction p. 7 1.1 Shale
Page 6 and 7: 7 Conclusions and Recommendations p
Page 8 and 9: to spread in the European Union. It
Page 10 and 11: 2 Context In this chapter some back
Page 12 and 13: the EU could produce more gas itsel
Page 14 and 15: minor tremors and community disrupt
Page 16 and 17: 2.3.1.3 Seismicity The risk of seis
Page 20 and 21: As mentioned, Article 191(2) TFEU s
Page 22 and 23: the EIA Directive comes into play.
Page 24 and 25: project might have significant effe
Page 26 and 27: difficult to assess later on what p
Page 28 and 29: facilities used to receive such was
Page 30 and 31: Commission of the compensatory meas
Page 32 and 33: Operators carrying out any occupati
Page 34 and 35: On 18 September 2013, a day before
Page 36 and 37: once, by a maximum of 6 months. A d
Page 38 and 39: can occur is the infiltration of wa
Page 40 and 41: location near a sensitive area, suc
Page 42 and 43: establish an inpassingsplan. This i
Page 44 and 45: 4.6.2 Water As noted in Chapter 2,
Page 46 and 47: 4.7 Extraction permit The procedure
Page 48 and 49: 4.9 Overview problems From the anal
Page 50 and 51: 5 General (environmental) principle
Page 52 and 53: as a ground for invalidation). 211
Page 54 and 55: scale or effects of the proposed ac
Page 56 and 57: orders. Here, unilateral actions by
Page 58 and 59: 5.3 General principle: transparency
Page 60 and 61: emarkable that the CJEU also someti
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Page 66 and 67: alance conflicting policies; the me
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prevailing social and political val
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It should be kept in mind, accordin
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concerning energy projects, in whic
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practice this distinction is less v
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national legal system, such as the
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application for sustainable develop
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6 Application of principles to shal
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The second justification concerns t
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Finally, it could also be questione
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Hence, these principles are really
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As set out in Chapter 5, the princi
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On the other hand, it should be rea
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this zone is made available. Also,
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With regard to the second part of t
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7.1 Conclusions Some remarks can be
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Gas is currently in development. In
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national interest and an imperative
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safeguarding of the drinking water,
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• Prechal & De Leeuw (2008) S. Pr
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• Q&A on the shale gas initiative
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• Case C-117/02 Commission v Port
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Websites • http://www.eia.gov •
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