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

The second question to be considered is whether the best available knowledge has been used to
prevent possible negative consequences resulting from the decision and/or whether there are
alternatives. This question has yet to be answered with regard to shale gas extraction. According to
the Recommendation, the risk assessment (on the selection of the exploration and production site)
should be based on the BAT and MS should ensure that operators use the BAT. In the Draft MSL
of the Dutch Minister of Economic Affairs, no clear reference has (yet) been made to the BAT.
Moreover, according to Van Hees, this discussion can be held from two different perspectives.
From the point of view of e.g. the NGOs, it could be argued that there are many (cleaner)
alternatives for shale gas extraction, especially the use of renewable energy resources. However, it
could also be argued, by e.g. the permit holders and the Minister of Economic Affairs, that (shale)
gas is the cleanest fossil fuel. Therefore, it could be stated that the best available knowledge was
used. Moreover, it is not economically and technically viable to solely use renewable energy,
because it is not possible for a country to only use renewable energy, since many of those
resources are dependent on the amount of e.g. wind or sun. Therefore, some other energy
resources have to be used as well. It can be argued (as done by the Dutch Minister of Economic
Affairs) that gas-fired power plants are ideal to use in combination with renewable energy, because
they can easily be adjusted or turned off and therefore can be used flexible to support the changing
demand patterns of solar and wind energy. 431 It could also be questioned, from the perspective of
the permit holders, whether there actually are alternatives available for them. After all, Cuadrilla
B.V. in the Netherlands is specialized in shale gas extraction, not in renewable energy and the
building of a wind mill. For Cuadrilla B.V., no alternative is available. This question could thus be
argued both ways. 432
Then, it should be questioned whether there is scientific uncertainty about the existence or extent
of risks to public health, safety or the environment stemming from the decision and if so, whether
measures have been taken to prevent the occurrence of those risks. This question has already
been answered with regard to shale gas in paragraph 6.4.1.
Next, it should be assessed, if negative consequences stemming from the preferred option
continue to exist, whether the decision is based on a sincere balancing act conducted between the
positive economic effects of the decision and its negative (e.g. environmental) effects and whether
the costs of these negative effects are borne by those who are responsible for causing them. This
question is not easy to answer because it includes a political decision. Simply stated: which one of
the three P's gets the most weight? The economic effects of shale gas production (security of
energy supply, important source of energy, economically important, ensuring cheap energy mix) or
the environmental effects (the protection of the environment, drinking water, etc.). In order to
balance these policy objectives, it should be known how much weight they both have. This
discussion is already held above and is difficult to conduct since there is no clear priority-rule
available. However, as stated by the integration principle, at least both objectives have to be taken
into consideration and some kind of balance has to be made. 433 This balancing act is political in
nature. As stated earlier, it could be argued that the protection of drinking water should be given
more weight; there is no alternative for this, while there are alternatives to secure the energy of
supply. But again, this is an opinion which the government could set aside. Moreover, to argue in a
different direction, when looking at the current political developments, it can also be argued that the
economic effects (instead of the environmental effects) ensure the concept of sustainable
development in this case. After all, if Russia shuts down the gas tap and the entire EU has to (in
the worst case scenario) stoke wood, which again could lead to deforestation, this is also not in
accordance with the concept of sustainable development.
431
Kamerstukken II 2012/13, 28 982, nr. 132, p. 2.
432
Van Hees (2014), p. 74.
433
Van Hees (2014), p. 67.
93