Commission Sets Guiding Principles for the Exploration and Production of Hydrocarbons by Hydraulic Facturing (publication in the OJEU)
A Commission Recommendation on minimum principles for the exploration and production of hydrocarbons such as shale gas by high-volume hydraulic fracturing has been published in the Official Journal of the EU (OJEU L 39, 8.2.2014, p.72). It is meant to help Member States who wish to carry out such activities by defining procedures, while ensuring a minimum level of protection for public health, climate and environmental protection.
Background
This Recommendation forms part of the Commission package published on 22 January 2014 which included a Communication on the same topic. It also follows up the different calls made by both the Council (Conclusions of 22.5.2013) and the European Parliament (Resolution of 21.11.2012) to assess the recourse to shale gas in EU countries and set harmonised provisions for the protection of human health and the environment.
The existing EU energy, environmental and safety legislation already covers some of the aspects of hydrocarbons exploration by high-volume hydraulic fracturing, but not entirely, since this legislation has been developed at a time when this technology was not not in use in Europe, as noted in the Recommendation. Some of the aspects which required additional coverage include: strategic planning, underground risk assessment, well integrity, baseline and operational monitoring, capturing methane emissions and disclosure of information on chemicals used on a well by well basis (Recital 8).
Content of the Recommendations
High-volume hydraulic fracturing is defined in Art. 2(a) as the "injection of 1 000 m3 or more of water per fracturing stage or 10 000 m3 or more of water during the entire fracturing process into a well."
The Recommendation defines thereafter a set of recommended rules for exploration and production, with due reference to existing EU legislation when relevant:
- Strategic planning and environmental impact assessment, to be carried out before granting licenses for exploration and/or production (Art. 3)
- Exploration and production permits (Art. 4)
- Selection of exploration and production site (Art. 5)
- Preliminary baseline study before the start of high-volume hydraulic fracturing operations (Art. 6)
- Installation design and construction, with a view of preventing possible surface leaks and spills to soil, water or air (Art. 7)
- Infrastructure of a production area, following an integrated approach (Art. 8)
- Requirements for operators, including the mandatory use of Best Available Techniques for operators along traditonal operational requirements (Art. 9)
- Use of chemical substances and water, with reference to the REACH Regulation (Art. 10)
- Monitoring requirements (Art. 11)
- Environmental liability and financial guarantee (Art. 12)
- Administrative capacity of the national competent authorities (Art. 13)
- Closure obligations (Art. 14)
- Dissemination of information (Art. 15)
- Review process by the Commission (18 months after the publication of this Recommendation), and reporting obligation for the Member States to the Commission
Ending remarks
Interestingly, the Recommendation opens with a new wording of the Member States' sovereignty over their energy mix, which indeed follows the provisions of the Treaty after Lisbon: "Member States have the right to determine the conditions for exploring their energy resources, as long as they respect the need to preserve, protect and improve the quality of the environment." (Recital 1).
The text is a Recommendation, and is therefore non-binding. It reflects the views of the European Institutions known to the public and suggests a line of action in the matter of shale gas exploration by hydraulic fracturing. It does not entail any legal obligation.
The Recommendation builds on the existing environmental and health protection legislation of the EU, inparticular COuncil Directive 89/391/EEC on health and safety of workers and COuncil Directive 92/91/EEC laying down provisions on the mineral extraction through drilling and its associated health ans safety requirements; Directive 94/22/EC, the Water Framework Directive 2000/60/EC, the Strategic Impact Assessment Directive 2001/42/EC, Environmental Liability Directive 2004/35/EC, Mining Waste Directive 2006/21/EC, REACH Regulation (EC) No 1907/2006, for just mentionning of few of them.
Similar rules have been drafted at international level, notably by the International Energy Agency with the so-called "Golden Rules for a Golden Age of Gas" (May 2012).
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