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

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the EIA Directive comes into play. The initial EIA Directive (85/337/EEC) was adopted in 1985, after which it has been amended several times. These amendments to the initial directive have been codified by the EIA Directive (2011/92/EU) on 13 December 2011. This Directive 2011/92/EU has been amended by Directive 2014/52/EU and has entered into force on 15 May 2014. 90 The amendments of 2014 have made the Directive in line with all the developments that has occurred since the EIA Directive originated. This includes inter alia resource efficiency and climate change. These latter are now included in the assessment framework. 91 The Directive of 2014 also requires more simplicity and clarification with regard to e.g. the screening procedure, the EIA reports and the grounds for development consent decisions. These should now be more transparent and understandable. This development can be welcomed, also with regard to shale gas projects. According to the Court of Justice the fundamental objective of the EIA Directive is that "before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a requirement for development consent and an assessment with regard to their effects." 92 This objective should always be taken into account. Several types of public and private projects which are likely to have significant effects on the environment have to be distinguished. First, there are certain types of projects that always have significant effect to the environment. Those projects must, as a rule, be subjected to an EIA. These are the mandatory EIA and are listed in Annex I to the Directive. The second type of projects concerns projects that do not always have such a significant effect. These are listed in Annex II. The projects of this type should be assessed only if the concerning MS finds that the project is likely to have such a significant effect in the current situation (also called the "screening procedure"). 93 Hence, here it depends on the discretion of the MS. MS are allowed to set thresholds on which type of projects are not likely to have such an effect. This makes it easier for them; in this manner they do not have to assess each project on a case-by-case basis. However, when setting these criteria, MS have to take into account the criteria mentioned in Annex III of the Directive. 94 When assessing the likely significant effect of projects, all related associated works and sub-activities intrinsically linked to the implementation and purpose of the project have to be assessed as well. 95 Moreover, account has to be taken of the Directive on the assessment of the effects of certain plans and programmes on the environment (2001/42/EC), or in short: the Strategic Environmental Assessment (SEA) Directive. This Directive applies to public plans and programmes, such as energy. Pursuant to Article 2, “plans and programmes” shall mean plans and programmes (as well as any modifications to them) which are subject to preparation and/or adoption by an authority at national, regional or local level and which are required by legislative, regulatory or administrative provisions. A SEA shall be carried out for all plans and programmes which are prepared for inter alia energy and which set the framework for future development consent of projects listed in the Annexes to the EIA Directive. Also, a SEA shall be carried out for all plans and programmes which have been determined to require an assessment pursuant to the Habitat Directive. For the other plans and programmes, it depends on the discretion of the MS: they shall determine whether these plans are likely to have significant environmental effects. Here, similar to the EIA Directive, the screening procedure applies. 90 http://ec.europa.eu/environment/eia/eia-legalcontext.htm 91 http://ec.europa.eu/environment/eia/review.htm 92 Case C-215/06, Commission v. Ireland [2008] ECR I-4911, paragraph 49. See also Case C287/98 Linster [2004] ECR I723, paragraph 52; and Case C486/04 Commission v. Italy [2006] ECR I11025, paragraph 36. 93 http://ec.europa.eu/environment/eia/eia-legalcontext.htm 94 Case C-255/08, Commission v. The Netherlands [2009] I-00167. 95 Case C-215/06, Commission v. Ireland [2008] ECR I-4911, paragraphs 102-110. See also the Guidance Note on the application of Directive 85/337/EEC to projects related to the exploration and exploitation of unconventional hydrocarbon, Ref.Ares(2011) 1339393, 12 December 2011, p. 2. 22
An important pillar of both the EIA and the SEA Directives, which is also of relevance for shale gas projects, is the contribution to transparency and public involvement in the decision-making process. The (draft) project, plan or programme and the accompanying environmental report shall be made available to the designated authorities and the public. They shall be given an early and effective opportunity within appropriate time frames to express their opinion before the adoption of the project, plan or programme or its submission to the legislative procedure. Relevance for shale gas activities More concrete, what does the EIA Directive mean for shale gas projects? In 2011 the European Commission released the 'Guidance note on the application of Directive 85/337/EEC to projects related to the exploration and exploitation of unconventional hydrocarbon'. 96 Here, the Commission summarizes the main requirements of the EIA Directive which are relevant for shale gas projects. The Recommendation of the Commission, adopted on 22 January 2014, was also accompanied by a Guidance on the application of the EIA Directive. 97 It should be noted that there is also the Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects. 98 It seems clear that the exploration and exploitation of unconventional hydrocarbons - here more specific: shale gas projects - are likely to have a significant effect on the environment, especially with regard to their use of hydraulic fracturing and horizontal drilling. With regard to the mandatory EIA (of Annex I), Article 4 of the EIA Directive in conjunction with Point 14 in Annex I declares that the extraction of petroleum and natural gas for commercial purposes shall be made subject to an assessment where the amount extracted exceeds 500 000 cubic metres/day in the case of gas. The Guidance note recommends the use of the scoping procedure here, which can be helpful for assessing the environmental effects (especially since there is not much knowledge on shale gas projects). This is again suggested by the latter Guidance of the Commission (accompanied by the Recommendation). The threshold of 500 000 cubic metres/day seems quite high. In practice, it will be hard to reach this threshold. 99 This means that shale gas activities will not fall systematically under the mandatory EIA. With regard to the projects listed in Annex II, the screening procedure comes into play. Here, Articles 2(1), 4(2)-(4) and the criteria of Annex III are relevant. The procedure will determine whether projects are likely to have significant effect on the environment. The relevant projects listed in Annex II are under Point 2 sub d ("Deep drillings, in particular geothermal drilling; drilling for the storage of nuclear waste material; drilling for water supplies; with the exception of drillings for investigating the stability of the soil") and sub e ("Surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale"). The Commission notes explicitly in her Guidance of 2014 that shale gas drillings fall under the deep drillings of point 2 sub d of Annex II. 100 The criteria of Annex III have to be used in order to assess whether these projects in the current situation are likely to have significant effects. If that is the case, an EIA is necessary to carry out. In the Guidance note of 2011 the following criteria of Annex III are considered to be of particular importance: "the cumulative effects with other projects, the use of natural resources, the production of waste, the environmental sensitivity of the areas where the projects are located, the magnitude and complexity of the impact, as well as the risk of accidents, having regard in particular to substances or technologies used." Both of the Guidance's also refer to the use of the precautionary and prevention principles in the screening procedure, which would make shale gas projects already subject to an EIA if objective information cannot exclude that the 96 Ref.Ares(2011)1339393, 12 December 2011. 97 Commission Staff Working Document Impact Assessment (2014). 98 European Commission, Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Trans boundary Projects, 16 May 2013. 99 Douma (2014), pp. 49-50. 100 Commission Staff Working Document Impact Assessment (2014), part 4/4, p. 32. 23
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 18 and 19: 3 Current European legislation on s
Page 20 and 21: As mentioned, Article 191(2) TFEU s
Page 24 and 25: project might have significant effe
Page 26 and 27: difficult to assess later on what p
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Page 30 and 31: Commission of the compensatory meas
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Page 36 and 37: once, by a maximum of 6 months. A d
Page 38 and 39: can occur is the infiltration of wa
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Page 42 and 43: establish an inpassingsplan. This i
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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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