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

stimulated by the Recommendation which states in Title 15 (on the dissemination of information)
that MS should ensure that:
the operator publicly disseminates information on the chemical substances and volumes of water that
are intended to be used and are finally used for the high-volume hydraulic fracturing of each well.
This information should list the names and Chemical Abstracts Service (CAS) numbers of all
substances and include a safety data sheet, if available, and the substance’s maximum concentration
in the fracturing fluid.
Hitherto the EU institutions are discussed, but what about the Dutch competent authorities?
Although they also have to comply with the EU obligations (of the Aarhus legislation) towards
transparency and participation, they also have to comply with the Dutch principle of transparency
and participation. According to the Code for Good Administration, the administration has to know
what is going on in society and has to show what it does with this knowledge. This is of importance
for shale gas activities in order to receive acceptation. With regard to the currently developing
Structure Vision on Shale Gas, everybody is allowed to submit an opinion (zienswijze). The
Minister of Economic Affairs has to react on all those opinions when finally adopting the structure
vision. This latter is important. In order to gain acceptance, the Minister really has to show and
motivate how it took all the opinions into account. He has to 'show what it does therewith'.
With regard to the transparency principle and the Dutch legislation on shale gas activities, it is also
relevant to note that the formation of the Mining Council (who should advice on the permits
according to the Mining Act) is secret, whereby it is unclear who sits in this Council. It would seem
that an independent council should be transparent and that everybody should be able to find who
sits in there. This is especially remarkable since the Mining Council has an important role in the
licensing process and the granting of licenses for something such as shale gas activities is not
something that should be thought light of.
Moreover, the importance of transparency with regard to shale gas activities is also very relevant
with regard to the drinking water companies. These companies have a duty of care to guarantee
safe and health drinking water. To ensure this and to comply with their duty, they need to know
what is in the flow back water, what chemicals are used, how much water will be left in the ground,
etc. Currently, this is not at all clear.
Finally, the participation and transparency principles breathe the necessity of involvement of the
people. As stated, they are closely related to the principles of democracy and legitimacy.
Especially with such a sensitive topic as shale gas extraction, these principles and thus the
involvement and ideas of the people are really important. Therefore, there should really be listened
to them. When looking at the Dutch approach, this is not happening. Currently, the Structure Vision
on Shale Gas includes a discussion on the usefulness and necessity (nut en noodzaak) of shale
gas exploration in the Netherlands. It could however be argued that such a (public) debate should
happen before the adoption of a structure vision, since this latter already sets out how and where
shale gas extraction should occur in the Netherlands.
6.3 The integration principle
The integration principle requires all Union's policies and activities to integrate environmental
requirements. This means that this also applies to energy policies. It could be questioned whether
the Recommendation of the Commission has integrated the environmental requirements
sufficiently or whether it was more concerned with providing an overarching framework in order to
stipulate the economic effects of shale gas activities.
87