Leonie Reins, Regulating Shale Gas: The Challenge of Coherent Environmental and Energy Regulation

Leonie Reins, Regulating Shale Gas: The Challenge of Coherent Environmental and Energy Regulation Shale gas has become a factor in the quest for energy sufficiency and security by many developed as well as developing countries. The USA has taken the lead in the exploitation of shale gas for local consumption and ultimately export. Shale gas is gas that is obtained from the deep crevices of sedimentary rock compositions of the earth by fracturing the rock to release the largely methane gas. The gas is forced out by the injection of water mixed with chemicals that keep the fractured rock formations open to allow for maximum extraction. This process of extracting gas is recorded to have engendered significant environmental consequences. For example, earth tremors in Blackpool in the UK and Oklahoma in the USA have been attributed to hydraulic fracturing. This has in turn generated anxieties in various countries resulting in differing attitudes of governments and people in Europe, Australia and the USA to fracking for shale gas. The book—Regulating Shale Gas— by Leonie Reins, deals with the contested positions regarding shale gas and seeks the way forward for its regulation. She situates the fracture in the front of the European Union (EU), as far as fracking is concerned, in the overall framework of science and technology regulation. The book consists of four chapters: Chapter 1 introduces the book, explaining the technology and the process for shale gas production, positing that shale gas production is not without significant environmental impacts. The important part of this chapter is the author’s introduction of the issues regarding the proper legal authority for the regulation of shale gas by the EU’s institutions, particularly the Commission. She poses the following questions ‘how does the provision on the member states’ right to determine their energy mix play out in practice?’, ‘How can environmental protection and security of supply be simultaneously guaranteed?’ ‘Is coherent regulation at all possible?’ and she concludes the chapter by outlining the methodology to answer those questions and sets out the roadmap for the rest of the book. Chapter 2 embarks on the search for the legal basis for the regulation of shale gas at the EU level and the consequences of that on the common EU policy on energy. The issue, according to Dr Reins, is the legal relationship between Title XX on the environment and the Title XXI on energy. Are they compatible and if not which title is superior and why? Prior to the Lisbon Treaty of 2009, environmental issues were dealt with under Article 130r–130t of 1986. However, due to the national sensitivities to energy, there was no clear distinct authority for energy regulation under the constitutive documents. Energy was dealt with in the same way as other internal market issues. It was the Lisbon Treaty that introduced the energy chapter for the first time in 2009. Article 194 Treaty on the Functioning of the European Union (TFEU) gives the EU competence to ensure the ‘functioning of the energy market, security of supply, the promotion of energy efficiency and the development of new and renewable forms of energy’. Interestingly the article also refers to the need to ‘preserve and improve the environment’. This helps to synchronize energy policy and regulation to that of the environment. Shale gas exploitation in the EU offers the first test to these synchronized competences. The problem, according to the author is that ‘from today’s point of view it seems possible that Member States, driven by the possibility to gain energy independence, will rely on their competence to determine their energy mix and pursue their own policy independent of pre-existing roadmaps and strategies’ (p 84). Whether the regulation is at the EU level or Member State level, the need for a practical model that will effectively regulate shale gas remains. At the moment there is no regulatory framework for shale gas in Europe. What exists is a non-binding set of recommendations outlining baseline principles. Chapter 3 takes up that challenge of examining the regulatory options. Here the author analyses the regulation of nanotechnology and carbon capture and storage (CCS) and draws lessons for the future regulation of shale gas. This is done using the precautionary and prevention principles in environmental discourse. To apply the precautionary principle, potentially adverse effects must be identified, followed by scientific evaluation of the data available and an evaluation of the extent of the scientific uncertainty (p 105). In contrast, the prevention principle is applied when the likelihood of risk can be quantified. All the same, they both have cost-benefit analyses at their core. Dr Reins applied these to the regulation of nanotechnology and carbon capture and storage in comparison to shale gas and concluded that whereas nanotechnology was completely new technology, shale gas and carbon capture use or adapt existing technology. Nanotechnology regulation was based on precautionary principle, CCS on prevention, but shale gas is not as yet defined or certain. There is a call to move from precaution based on environmental worries and scepticism, to prevention. Finally, the regulation is made complex by high public awareness about shale gas in contrast to low awareness about CCS, and to some extent, nanotechnology. The use of nanotechnology and CCS regulation as comparators for shale gas regulation is helpful, but it appears the author spent disproportionate time and effort in this comparison with overwhelming emphasis on nanotechnology. The comparison with the American incremental approach to shale regulation is largely overshadowed and somehow lost in the discussion. It would have been helpful to have a whole chapter devoted to the American experience. Chapter 3 as whole is not as lucid because the author has packed too much into it resulting in an imbalance in the work. Chapter 4 is a summary of the previous three chapters and concludes the book. The discussion of all aspects of a subject as important as shale gas is well-nigh impossible in one book. There are engineering or science aspects, the business case for it, national security, environmental and social aspects, are all now emerging. This is rendered more complicated by the ever changing structures and regulatory landscape in Europe. Dr Leonie Reins is, therefore, a trailblazer in the field, putting together a baseline study that will serve as the impetus for future work in the field. I will recommend the book to researchers and students of energy and environmental law. © The Author(s) 2017. Published by Oxford University Press on behalf of the AIPN. All rights reserved. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Energy Law and Business Oxford University Press

Leonie Reins, Regulating Shale Gas: The Challenge of Coherent Environmental and Energy Regulation

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Publisher
Oxford University Press
Copyright
© The Author(s) 2017. Published by Oxford University Press on behalf of the AIPN. All rights reserved.
ISSN
1754-9957
eISSN
1754-9965
D.O.I.
10.1093/jwelb/jwx036
Publisher site
See Article on Publisher Site

Abstract

Shale gas has become a factor in the quest for energy sufficiency and security by many developed as well as developing countries. The USA has taken the lead in the exploitation of shale gas for local consumption and ultimately export. Shale gas is gas that is obtained from the deep crevices of sedimentary rock compositions of the earth by fracturing the rock to release the largely methane gas. The gas is forced out by the injection of water mixed with chemicals that keep the fractured rock formations open to allow for maximum extraction. This process of extracting gas is recorded to have engendered significant environmental consequences. For example, earth tremors in Blackpool in the UK and Oklahoma in the USA have been attributed to hydraulic fracturing. This has in turn generated anxieties in various countries resulting in differing attitudes of governments and people in Europe, Australia and the USA to fracking for shale gas. The book—Regulating Shale Gas— by Leonie Reins, deals with the contested positions regarding shale gas and seeks the way forward for its regulation. She situates the fracture in the front of the European Union (EU), as far as fracking is concerned, in the overall framework of science and technology regulation. The book consists of four chapters: Chapter 1 introduces the book, explaining the technology and the process for shale gas production, positing that shale gas production is not without significant environmental impacts. The important part of this chapter is the author’s introduction of the issues regarding the proper legal authority for the regulation of shale gas by the EU’s institutions, particularly the Commission. She poses the following questions ‘how does the provision on the member states’ right to determine their energy mix play out in practice?’, ‘How can environmental protection and security of supply be simultaneously guaranteed?’ ‘Is coherent regulation at all possible?’ and she concludes the chapter by outlining the methodology to answer those questions and sets out the roadmap for the rest of the book. Chapter 2 embarks on the search for the legal basis for the regulation of shale gas at the EU level and the consequences of that on the common EU policy on energy. The issue, according to Dr Reins, is the legal relationship between Title XX on the environment and the Title XXI on energy. Are they compatible and if not which title is superior and why? Prior to the Lisbon Treaty of 2009, environmental issues were dealt with under Article 130r–130t of 1986. However, due to the national sensitivities to energy, there was no clear distinct authority for energy regulation under the constitutive documents. Energy was dealt with in the same way as other internal market issues. It was the Lisbon Treaty that introduced the energy chapter for the first time in 2009. Article 194 Treaty on the Functioning of the European Union (TFEU) gives the EU competence to ensure the ‘functioning of the energy market, security of supply, the promotion of energy efficiency and the development of new and renewable forms of energy’. Interestingly the article also refers to the need to ‘preserve and improve the environment’. This helps to synchronize energy policy and regulation to that of the environment. Shale gas exploitation in the EU offers the first test to these synchronized competences. The problem, according to the author is that ‘from today’s point of view it seems possible that Member States, driven by the possibility to gain energy independence, will rely on their competence to determine their energy mix and pursue their own policy independent of pre-existing roadmaps and strategies’ (p 84). Whether the regulation is at the EU level or Member State level, the need for a practical model that will effectively regulate shale gas remains. At the moment there is no regulatory framework for shale gas in Europe. What exists is a non-binding set of recommendations outlining baseline principles. Chapter 3 takes up that challenge of examining the regulatory options. Here the author analyses the regulation of nanotechnology and carbon capture and storage (CCS) and draws lessons for the future regulation of shale gas. This is done using the precautionary and prevention principles in environmental discourse. To apply the precautionary principle, potentially adverse effects must be identified, followed by scientific evaluation of the data available and an evaluation of the extent of the scientific uncertainty (p 105). In contrast, the prevention principle is applied when the likelihood of risk can be quantified. All the same, they both have cost-benefit analyses at their core. Dr Reins applied these to the regulation of nanotechnology and carbon capture and storage in comparison to shale gas and concluded that whereas nanotechnology was completely new technology, shale gas and carbon capture use or adapt existing technology. Nanotechnology regulation was based on precautionary principle, CCS on prevention, but shale gas is not as yet defined or certain. There is a call to move from precaution based on environmental worries and scepticism, to prevention. Finally, the regulation is made complex by high public awareness about shale gas in contrast to low awareness about CCS, and to some extent, nanotechnology. The use of nanotechnology and CCS regulation as comparators for shale gas regulation is helpful, but it appears the author spent disproportionate time and effort in this comparison with overwhelming emphasis on nanotechnology. The comparison with the American incremental approach to shale regulation is largely overshadowed and somehow lost in the discussion. It would have been helpful to have a whole chapter devoted to the American experience. Chapter 3 as whole is not as lucid because the author has packed too much into it resulting in an imbalance in the work. Chapter 4 is a summary of the previous three chapters and concludes the book. The discussion of all aspects of a subject as important as shale gas is well-nigh impossible in one book. There are engineering or science aspects, the business case for it, national security, environmental and social aspects, are all now emerging. This is rendered more complicated by the ever changing structures and regulatory landscape in Europe. Dr Leonie Reins is, therefore, a trailblazer in the field, putting together a baseline study that will serve as the impetus for future work in the field. I will recommend the book to researchers and students of energy and environmental law. © The Author(s) 2017. Published by Oxford University Press on behalf of the AIPN. All rights reserved.

Journal

Journal of World Energy Law and BusinessOxford University Press

Published: Mar 1, 2018

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