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

More documents

Recommendations

Info

Gas is currently in development. In Dutch case law the adoptive licensing approach is always referred to when it comes to the precautionary principle. It is possible that the Minister of Economic Affairs will include such a monitoring plan in the Structure Vision. This is however not without risk, since it is arguable that the CJEU will not accept the accordance of such a monitoring plan with the precautionary principle. It is however a way to take account of the precautionary principle. The next environmental principle that was set out concerned the prevention principle. Although this principle should be distinguished from the precautionary principle, they are almost always invoked at the same time in practice. An important note that has been stated is that the Dutch upcoming regulation (the Draft MSL) seems to be contrary to the prevention principle. While the principle requires competent authorities to be open-minded, the Minister of Economic Affairs has not shown such an open view in the Draft MSL. The proposed zones for possible shale gas extraction are only reviewed against the current Dutch regulation and the Model PMV. However, the prevention principle requires competent authorities to look further than the existing concepts or lists. In this manner, the Minister could have excluded the boring free zones (from shale gas activities) in the Draft MSL. This would have enhanced the protection of the drinking water areas. Moreover, it could have contributed to the public acceptance. The Minister would have shown its willingness to protect the environment and the drinking water areas. Finally, the concept of sustainable development was discussed. Here, special attention was paid to the sustainable impact assessment, which is based on several policy guiding principles. After carrying out this assessment, it was clear that the execution hereof depends on many political aspects. It moreover depends from which perspective this assessment is carried out. Some questions of the assessment were not debatable, such as the fact that shale gas extraction comes with negative consequences for certain policy objectives (e.g. the high level of quality of the environment) and the fact that there is (much) scientific uncertainty about the existence or extent of risks to e.g. public health, safety and the environment. However, the questions concerning the used BAT and the sincere balancing act were less obvious. Here it depends whether this is argued from the perspective of e.g. a NGO or the Minister of Economic Affairs or permit holders. These questions are difficult to answer because there is no priority-rule between environmental, social and economic aspects. However, with regard to shale gas extraction, it is very well arguable, especially when taking into account the serious or even irreparable dangers for drinking water and the environment and the fact that there are not alternatives, but also the issue of public acceptance (which are all policy guiding principles), that there is not a sincere balancing act. Addressing the problems During this thesis, several problems were pointed out; in Chapter 2 several risks and concerns were expressed and in Chapter 4 and Chapter 5 different issues with regard to the (current and upcoming) regulation on shale gas were set out. As already seen in Chapter 6, many of those problems can (at least partly) be resolved by a stricter or more consequent application of the general and environmental principles discussed here. These problems will be shortly iterated here individually, after which it will be shown that the principles will help to address these problems. The main problems are the following: the fragmented nature of shale gas regulation (not only the regulation, but also the competent authorities, the assessment frameworks, the instruments and the protection levels), the lack of public trust and acceptance (due to many risks and uncertainties accompanied with shale gas activities), the problem of conflicting interests (mainly between drinking water and energy supply), the environmental concerns (water quality, air emissions, seismicity), the protection of drinking water and the issue of overriding authorities. Before discussing the different problems, it should be noted that the concept of sustainable development includes many of the discussed principles (which might contribute to the problems) as guiding policy principles (such as the open and democratic society, the involvement of citizens, the policy 98
integrations, the best available knowledge and the precautionary principle). This concept (and its impact assessment) could thus be seen as a confirmation of the considerations hereafter. The first problem concerns the fragmented nature of shale gas regulation. Here come different principles into play: the decentralisation, integration, precautionary and prevention principle. The decentralisation principle would require the lower competent authorities to be involved at an earlier stage, e.g. already when permitting the exploration and extraction licenses according to the Mining Act. Currently, these lower authorities (especially the municipalities) are not involved in the Mining Act. The inclusion of those lower authorities in the Mining Act would enhance coordination and will also speed up the process. Second, the principle of integration requires environmental requirements to be implemented in other fields. This requires the Mining Act to take account of those requirements, which is currently not happening. This could enhance the currently existing different assessment frameworks. Moreover, the environmental principles also contradict with the currently fragmentised nature of the shale gas regulation. Fragmentised regulation could lead to gaps, which can harm the environment. A more centralised, clear legislation could contribute hereto. The environmental principles have in the past already been used as an argument to e.g. adopt shale gas activities in the EIA directive. The second problem which is very important for shale gas activities is the lack of public trust and acceptance within the EU and the Netherlands. The principles of decentralisation, openness (participation and transparency), integration, precautionary and prevention can be of help here. The lack of transparency and public information is considered as one of the biggest challenges with regard to shale gas. The first principle that could be helpful is the decentralisation principle. If lower authorities (mainly the municipalities) would have more influence (e.g. already in the Mining Act as stated before), citizens would have the feeling that their interests would be more and better involved. This will lead to more acceptance. Currently, many citizens feel that the Minister of Economic Affairs does only take national interests (such as the security of energy supply and energy mix) into account, while not considering the local interests. Second, the principle of openness could contribute to more public acceptance and trust. In accordance with the principle, citizens should be more involved and should be allowed to see what the actual effects are of shale gas activities, what chemicals are put into the ground (or not), etc. Knowing will give some peace of mind. Third, the integration principle requires environmental requirements to be taken into account in all policies. Currently, there is lack of such integration in the Dutch mining regulation. This is shown by the Mining Act but also by the fact that only the Minister of Economic Affairs signs the official documents of the parliament, without coordination with the Minister of Infrastructure and Environment. It could lead to public acceptance if environmental aspects would (more clearly) be taken into account. Currently it seems that economic reasons have the upper hand. Finally, the environmental principles are of relevance. Here, the concept of sustainable development could also be taken into account. Strict application of these principles can work as an assurance for citizens that risks are strictly taken into consideration. Third, the environmental concerns (in general) should be discussed, for which the transparency principle, the integration principle and the environmental principles are relevant. Here another problem – the protection of drinking water – can also be addressed. The same principles could contribute to the resolving hereof. First, in order to contribute to environmental concerns (under which the issue of drinking water) it is necessary that information is available, e.g. on possible earthquakes, the pollution of ground and drinking water, the amount of water used, the emission of greenhouse gas, air pollution, etc. Currently all this information is a bit vague and companies do not publish this information. This is also a concern often heard in the US. This information should be made public in order to deal with those concerns adequately. This is especially relevant for drinking water companies. Those companies need to know what chemicals are used in the fracturing fluid in order to safeguard the drinking water, especially since they are under a duty of care. The necessity of providing safe and healthy drinking water is also apparent from it being a 99
Page 1:
Shale gas extraction: In line with
Page 4 and 5:
Index 1 Introduction p. 7 1.1 Shale
Page 6 and 7:
7 Conclusions and Recommendations p
Page 8 and 9:
to spread in the European Union. It
Page 10 and 11:
2 Context In this chapter some back
Page 12 and 13:
the EU could produce more gas itsel
Page 14 and 15:
minor tremors and community disrupt
Page 16 and 17:
2.3.1.3 Seismicity The risk of seis
Page 18 and 19:
3 Current European legislation on s
Page 20 and 21:
As mentioned, Article 191(2) TFEU s
Page 22 and 23:
the EIA Directive comes into play.
Page 24 and 25:
project might have significant effe
Page 26 and 27:
difficult to assess later on what p
Page 28 and 29:
facilities used to receive such was
Page 30 and 31:
Commission of the compensatory meas
Page 32 and 33:
Operators carrying out any occupati
Page 34 and 35:
On 18 September 2013, a day before
Page 36 and 37:
once, by a maximum of 6 months. A d
Page 38 and 39:
can occur is the infiltration of wa
Page 40 and 41:
location near a sensitive area, suc
Page 42 and 43:
establish an inpassingsplan. This i
Page 44 and 45:
4.6.2 Water As noted in Chapter 2,
Page 46 and 47:
4.7 Extraction permit The procedure
Page 48 and 49: 4.9 Overview problems From the anal
Page 50 and 51: 5 General (environmental) principle
Page 52 and 53: as a ground for invalidation). 211
Page 54 and 55: scale or effects of the proposed ac
Page 56 and 57: orders. Here, unilateral actions by
Page 58 and 59: 5.3 General principle: transparency
Page 60 and 61: emarkable that the CJEU also someti
Page 62 and 63: An important Dutch law which focuss
Page 64 and 65: follows after the subject is raised
Page 66 and 67: alance conflicting policies; the me
Page 68 and 69: prevailing social and political val
Page 70 and 71: It should be kept in mind, accordin
Page 72 and 73: concerning energy projects, in whic
Page 74 and 75: practice this distinction is less v
Page 76 and 77: national legal system, such as the
Page 78 and 79: application for sustainable develop
Page 80 and 81: 6 Application of principles to shal
Page 82 and 83: The second justification concerns t
Page 84 and 85: Finally, it could also be questione
Page 86 and 87: Hence, these principles are really
Page 88 and 89: As set out in Chapter 5, the princi
Page 90 and 91: On the other hand, it should be rea
Page 92 and 93: this zone is made available. Also,
Page 94 and 95: With regard to the second part of t
Page 96 and 97: 7.1 Conclusions Some remarks can be
Page 100 and 101: national interest and an imperative
Page 102 and 103: safeguarding of the drinking water,
Page 104 and 105: • Prechal & De Leeuw (2008) S. Pr
Page 106 and 107: • Q&A on the shale gas initiative
Page 108 and 109: • Case C-117/02 Commission v Port
Page 110: Websites • http://www.eia.gov •
show all

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

Create successful ePaper yourself

Delete template?

Save as template?