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

this zone is made available. Also, it should be reminded that once ground water or drinking water is
contaminated, it is very difficult to clean this. Moreover, when looking at the interest of drinking
water in combination with the precautionary principle, it is very clear that if certain risks are taken,
this must comply with the condition that this must be acceptable to the society on which the risk is
imposed. Here, this is very questionable. It could be wondered whether it fits better with those
principles to exclude those areas completely and moreover, to also exclude the bore free zones
and all the areas appointed by the province, which are currently (in principle) not excluded by the
Draft MSL. Hence, the Draft MSL does take the drinking water areas into account, but not in a way
that is deemed acceptable to the society and not sufficiently with regard to the 1000 metres zone
and non-exclusion of the bore free zones.
With regard to this problem (concerning the conflicting interests), the problem of overriding
authorities and the dilemma of the balancing of two national interests (already touched upon in
paragraph 6.1.3) come into play. It is a difficult and tricky operation to balance the national interest
of energy security against the national interest of the protection of groundwater and drinking water
resources. What could play a role is the precautionary principle. With regard to the contamination
of ground water it could be stated that it is very difficult (if not impossible) to resolve this. Also, the
risks are not entirely clear. Moreover, with regard to drinking water, it should be mentioned that
there is no alternative, while for the security of energy supply there is. Except for groundwater and
surface water, there is no alternative for drinking water. If precaution and prevention play a role
(and the concept of sustainable development), it is also important to look ahead; what is possible in
20 years? It is possible to switch to renewable energy, but there is nothing to switch to with regard
to drinking water (except for the desalination of the sea, which again would cost a lot of energy).
So there is no alternative in the long- term. It could therefore be argued that the State should act its
overriding powers when it comes to the protection of drinking water, not for the protection of shale
gas extraction.
Finally, as pointed out in Chapter 3, there are problems with regard to the fragmentised nature of
the legislation, which could result in gaps in legislation. This latter could decrease environmental
protection. This is also a great concern of the society (as shown by Chapter 2 and the broad public
consultation). It could be wondered whether the precautionary and prevention principles could
require a more centralised or clear legislation to establish that there are no gaps in the legislation.
This also applies to the fragmentation of assessment frameworks, where it is remarkable that the
Mining Act does not involve environmental requirements. It would not be the first time that the
precautionary and prevention principles are used as an argument to adopt or adjust legislation. The
precautionary principle has for example also been used as an argument (prior to the adoption of
the Recommendation) in order to defer shale gas projects to an EIA. 430
6.5 Concept of sustainable development
As set out in Paragraph 5.8, the sustainable impact assessment – developed by Van Hees – can
offer another way (an extra check) of reviewing whether the current and upcoming shale gas
regulation is line with a certain environmental, sustainable manner of thinking. In this paragraph
this sustainable impact assessment will be carried out.
The first question to answer is whether the decision to extract shale gas has negative
consequences for policy objectives such as the protection of a high level of quality of the
environment and public health and for the protection of fundamental rights. This can be answered
in the affirmative. Shale gas extraction can lead to higher emissions, contamination of groundwater
and drinking water, seismicity, etc. This can all lead to negative consequences for the protection of
the environment and public health.
430
Douma (2014), p. 50.
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