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

On the other hand, it should be realised that the precautionary principle is not per se good from all
perspectives. According to Fleming, “[u]nrealisticly high demands on the removal of uncertainty
suffocate the balancing of energy security interests with environmental protection demands, since
a prerequisite for the weighting is a certain amount of leeway in which it can be performed.” 425 He
illustrates this by referring to the precautionary moratorium on natural gas drilling in the Wadden
Sea in 1999. The Dutch government stated that as long as any uncertainties regarding possibly
permanent degradation of the Wadden Sea existed (to a certain extent), no permits would be
issued. Difficulties arose as how much (un)certainty was required and what ‘to a certain extent’
meant. The statement of the government referred to ‘any uncertainties’ which is impossible to
reach in practice. What could be learnt from this experience, according to Fleming, is that
thresholds should not be set too high. Some risks are inevitable, otherwise new technologies could
never be tried out, as Fleming points out. He states that such a high threshold would make the
balancing exercise between energy security and environmental protection impossible. 426 He argues
that if no fear of significant harm exists, the precautionary principle is already sufficiently fulfilled.
This line of reasoning (of Fleming) could in general be followed. However, it could be noted that
this consideration might not be true for every situation. Therefore, it could be argued that the
reasoning of Fleming should take a more casuistic approach. In the case of shale gas exploration,
this line of reasoning could be questioned, especially with regard to the adverse effects for drinking
water for which there are no alternatives available, as elaborated further in paragraph 6.4.3.
On the Dutch level, there is also another development of relevance; the adoptive licensing
approach. The ABRvS seems to not explicitly review measures or decisions against the
precautionary principle itself, but on the basis of this approach. It is very well possible that the
Minister of Economic Affairs will adopt a system in which such a monitoring plan is built-in. It must
be kept in mind that a monitoring system is only acceptable if the margin for which it provides
concerns a remaining manageable residual risk, the monitoring relates specifically to that risk and
there is no alternative to exclude that risk. Moreover, it is still questionable whether the Court of
Justice would accept this line of reasoning. Therefore, such a system would not be preferable.
6.4.2 The prevention principle
The prevention principle should be distinguished from the precautionary principle. While the
precautionary principle can be invoked if there is no scientific certainty, the prevention principle can
only be invoked if the adverse effects for the environment are objectively established. The level of
certainty is thus decisive. With regard to shale gas activities it may be dependent on the certain
risks that are discussed; some risks are more uncertain than others. In practice, the principles are
almost always invoked together. Another important difference between the two (with regard to
shale gas activities) is that the prevention principle applies a definition of an acceptable risk that is
primarily science based, while the precautionary principle considers the social acceptance of the
risk. The social acceptance is an important matter with regard to shale gas activities, in the sense
that there is none (or not much). This produces a high threshold for shale gas regulation.
An important duty required by the prevention principle is that competent authorities may not limit
themselves to certain concepts or list, but should always take a broader view in the interest of
preventing or mitigating environmental degradation. Hence, competent authorities should be openminded.
Here, the current approach of the Dutch government provides for a good example. In the
Draft MSL certain zones are excluded from shale gas extraction, while others are not. The Minister
depends its decision thereon on the currently existing (Dutch) regulation on e.g. the Mining Act, the
Water Act, etc. Therefore, the Minister has decided for example not to exclude boring free zones
from shale gas activities, because they are not in contrast with the Model PMV. This is an example
425
Fleming (2014), p. 26.
426
Fleming (2014), p. 27.
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