Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3
Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3
Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3
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6.4 The precautionary <strong>and</strong> prevention principles<br />
The precautionary <strong>and</strong> prevention principles are in practice almost often invoked together.<br />
Therefore, this paragraph will also address them together, which is especially insightful when<br />
looking at the problems that they might help to redress.<br />
6.4.1 The precautionary principle<br />
There is no official definition of the precautionary principle in <strong>EU</strong> or Dutch legislation. However, all<br />
the explanations of the principle in international, European <strong>and</strong> national legislation include the<br />
same aspects; there should be a lack of full scientific certainty (due to insufficiency,<br />
inconclusiveness or uncertainty) <strong>and</strong> there should be potentially dangerous effects on the<br />
environment, human, animal or plant health that may be inconsistent with the chosen level of<br />
protection. As mentioned in the previous paragraph, the <strong>EU</strong> action or measure in the field of energy<br />
must comply with the environmental requirements which include inter alia the principles mentioned<br />
in Article 191(2) TF<strong>EU</strong> in which the precautionary principle is also enumerated. According to the<br />
Commission two steps need to be followed to assess whether recourse to the principle occurs. It<br />
will now be reviewed whether the current shale gas regulation is in accordance with these two<br />
steps.<br />
First, there should be a potential risk. If risks are only identified by minor groups within the scientific<br />
community, this is already enough. A comprehensive assessment of the risk is not necessary if this<br />
is not possible. If the scientific evaluation of the risk shows that it is not possible to determine the<br />
risk with sufficient certainty, recourse should be sought to the precautionary principle. With regard<br />
to shale gas activities, it can be ascertained that there are many risks <strong>and</strong> uncertainties (see<br />
Chapter 2). This is also confirmed by many studies <strong>and</strong> by the EIA carried out by the Commission.<br />
Currently, a plan-EIA is also carried out by the Dutch government (expected at the beginning of<br />
2015). Some of the uncertainties are also due to the fact that there is not much experience with<br />
hydraulic fracking <strong>and</strong> horizontal drilling on the <strong>EU</strong> territory. Therefore, many of the studies are<br />
based on assumptions. This makes it difficult to determine risks with sufficient certainty. That again<br />
is an indication that recourse should be sought to the precautionary principle.<br />
It should then be assessed what precautionary measures should be taken. Decision-makers should<br />
respond to the scientific evaluation. This should lead to a political decision which should contain a<br />
risk level that is 'acceptable' to the society on which the risk is imposed. Within the Union, the<br />
Commission is the relevant institution (but also the European Parliament <strong>and</strong> the Council can start<br />
actions or initiatives) <strong>and</strong> within the Netherl<strong>and</strong>s, the competent authority is especially the Minister<br />
of Economic Affairs, but also the municipalities <strong>and</strong> provinces when making policies or granting<br />
certain licenses. If a level of risk exceeds the level of risk deemed acceptable for society, a breach<br />
of the precautionary principle must be found. However, the precautionary principle implies a<br />
political decisions which means that courts can only find a breach if there is a manifest error or<br />
misuse of power or manifest crossing of the limits of the powers. With regard to the legislation on<br />
shale gas activities, it could be questioned whether the risk level adopted by the Recommendation<br />
is 'acceptable' to the society on which the risk is imposed. As proven by the broad public<br />
consultation of the Commission <strong>and</strong> by the several moratoria <strong>and</strong> legal bans imposed by MS, the<br />
<strong>EU</strong> civil society is very afraid for shale gas activities on their territory or in their neighbourhood. The<br />
formally non-binding Recommendation does not give much certainty for them or for the<br />
environment. After all, it is still for the MS to decide whether they will actually adopt it. If they had<br />
chosen for another option (e.g. adjusting existing regulation or adopting a new directive), certain<br />
risks could have been regulated under stricter requirements. This would have been more in line<br />
with the precautionary principle <strong>and</strong> more acceptable for the society.<br />
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