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Regulating Shale Gas

The Challenge of Coherent Environmental and Energy Regulation

Leonie Reins

Regulating Shale Gas discusses the regulatory context of shale gas in the European Union and draws conclusions on the EU’s broader approach towards the regulation of new technologies. Providing the first dedicated examination of the overall regulatory context of shale gas in the EU, Leonie Reins reveals how the EU’s new constitutional setup after the Lisbon Treaty has complicated rather than facilitated the EU’s quest for a common energy policy.
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Chapter 1: Introduction – a research agenda for shale gas in the European Union

Leonie Reins

1.    CHALLENGES for COHERENT REGULATION of shale gas IN THE EUROPEAN UNION

1.1    A Research Agenda for Shale Gas: Setting the Scene

The extraction of shale gas has been hailed as a ‘game changer’ in the United States and has restructured the country’s energy landscape.1 Through the extraction of shale gas, the United States (US) has reduced its dependency on oil from the Middle East and is on the way to transforming from an energy importing to an energy exporting country by 2020.2 Consequently, it essentially gained additional freedom in its external politics. The US is by far the biggest producer of shale gas, and has the longest history of extraction worldwide.3

The method of releasing hydrocarbons from the ground through hydraulic fracturing (also referred to as ‘fracking’ or ‘fracturing’)4 is increasingly also considered in the European Union (EU) as a possible response to rising energy demand in the Union and to reduce dependence on gas imports from third countries such as Russia. So far, however, the technology is far from being exercised on a commercial level in the EU.

To date, most legal research on shale gas in the EU has focused on the micro-level of regulation, namely on how shale gas is or should be regulated in different Member States, such as in Germany,5 the United Kingdom,6 etc.7 The analysis has mostly focused on the different steps along the shale gas value chain (planning, exploration, extraction and closure)8 and the environmental impacts associated with the activity (greenhouse gas (GHG) emissions,9 impacts on water resources,10 chemicals used in the fracturing process).11 Although this is important as a first step to obtain a better understanding of the regulatory framework as it stands and the associated gaps and loopholes for shale gas in the Member State as well as at the European level, it is certainly not enough to gain a full picture of the potential (or lack thereof) that shale gas has in the EU. As a next step, legal research needs to move beyond this micro-perspective and focus on a broader perspective, namely the overall European energy, environmental law and policy context. A European research agenda for shale gas needs to move beyond the analysis of the existing legal framework (whilst incorporating the lessons learned from the US' shale gas experience); and broaden itself so as to address the implications at the macro-level.12

More precisely, four additional aspects are crucial in order to gain a coherent idea of shale gas in the EU regulatory landscape, also outlined in Figure 1.1 below:

1  the division of competences in the environmental and energy area, both on a vertical and horizontal level;

2  possible impacts of the technology on a common European energy policy;

3  a comparison with other cross-cutting energy and environmental issues and technologies, such as the carbon capture and storage (CCS) technology and nanotechnology; and

4  a discussion on the precaution and prevention principles in light of new technologies and scientific uncertainties and how this affects shale gas.

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Figure 1.1    Legal challenges for the regulation of shale gas extraction in the European Union

1.1.1    The vertical and horizontal competences for shale gas after the reshuffling of the environmental and energy competences in the Lisbon Treaty

Before the entry into force of the Lisbon Treaty in December 2009, the EU’s action on energy matters historically lacked an explicit legal basis. However, the absence of a Treaty provision did not prevent the Community from adopting legislation in the energy sector. European legislation on energy policy developed through other existing legal bases, in particular on internal market, competition and environmental protection competences. The introduction of the Energy Title XXI in the Lisbon Treaty changed the set-up in both the environmental and energy fields. What has been missing in legal scholarship is an analysis of how this ‘new’13 technology fits in the overall framework of the European competences.14 The ‘clash’ between, or interplay of, the competences has not been assessed on a practical level. The case study of shale gas is the first where this plays out in practice and which impacts both titles of the Treaty. It is not clear how the new Article 194 of the Treaty on the Functioning of the European Union (TFEU) on energy issues evolve in practice. In particular, how does the provision on the Member States’ right to determine their energy mix play out in practice? Is this a means for Member States to opt out of Union measures and policy? How should conflicts on the legal basis be handled? How can environmental protection and security of supply be simultaneously guaranteed? Does one have to be given priority over the other? Is coherent regulation at all possible?

1.1.2    The impact of shale gas on a Common European Energy Policy

Related to the discussion on vertical and horizontal competences, the extent to which the case of shale gas will potentially affect a common energy policy (CEP) for the European Union. The latter has been debated by various stakeholders over the past 40 years.15 A CEP arguably would enable the EU to act with a common voice in light of the depletion of energy reserves, the need for a diversification of sources and the reliance on imported energy from external sources.16 So far, a CEP has been mainly associated with infrastructure concerns such as the building of pipelines connecting the energy-producing countries with the consuming countries in the EU (Nabucco and Southstream are important keywords in this context)17 and the creation and completion of a single European energy market (unbundling). Academic articles have discussed the changes in policy after the gas crises in 2006 and 2009,18 as well as the Fukushima disaster.19 One important factor has been absent from this debate, however: Shale gas exploration and production. This emerging trend has the potential to change the energy landscape in the Union and beyond.20 In a Communication, the European Commission declared that ‘shale gas can be a possible substitute for more carbon-intensive fossil fuels, an indigenous source of natural gas reducing dependency on non-EU energy suppliers’.21 Furthermore, in 2011 the European Council agreed that ‘[i]n order to further enhance its security of supply, Europe’s potential for sustainable extraction and use of conventional and unconventional (shale gas and oil shale) fossil fuel resources should be assessed’.22 The European Council thus explicitly formulated a mandate to evaluate shale gas exploration and extraction as a means to secure the European energy supply on a common basis.

Considering the strong and very divergent positions the Member States have on shale gas (e.g., voting in European Parliament and the Council on the Revision of the Environmental Impact Assessment (EIA) Directive), as well as the approach the Commission takes (recommendation and not a proposal for a Directive), it is questionable whether the current path towards a common policy can be upheld in the future. In light of the trends and developments relating to shale gas, what needs to be examined is if and how such strategies, which clearly pave the way towards a common European energy policy, will be pursued in the future.

1.1.3    Other cross-cutting energy issues

Regulating and balancing energy and environmental matters in a coherent manner has always been a key challenge for politicians and law-makers.23 In order to establish how regulatory design and policy impacts the development of a technology, the current procedure of dealing with cross-cutting energy issues needs to be addressed. This includes the regulation of CCS and nanotechnology.24 These new technologies also affect the environment in several ways and have posed regulatory challenges to European Institutions in the past, examining before the inclusion of a separate legal basis on energy.

While all these technologies were – and to some extent still are – perceived to be new, the regulatory approaches to these technologies differ. The regulatory design debate on nanotechnology was, at least initially, characterized by a cooperative approach between industry, non-governmental organizations and the general public. Action at a European level includes a European strategy for nanotechnology, a European action plan, a common definition established though a Recommendation25 and a Code of Conduct.26 However, there is no specific legislation on this matter. The discussion surrounding the CCS technology on the other side resulted in the adoption of binding legislation. The CCS Directive 2009/31/EC27 amends the Water Framework Directive,28 the Waste Directive29 and several other Directives.30 The European Commission advocates that ‘although the components of CCS are all known and deployed at commercial scale, integrated systems are new, and a clear regulatory framework is required. The EU's CCS Directive provides this’.31

The most recent ‘new’ technology is the shale gas hydraulic fracturing technology. The shale gas regulatory debate in the Union is characterized by the classical opposing interests of industry, NGOs, etc. A non-binding Recommendation outlining minimum principles is the only specific regulatory instrument so far, aside from the general regulatory framework for conventional gas. Through a comparative analysis of these legal regimes and their legislative history conclusions can be drawn for the regulation of the shale gas technology.

1.1.4    ‘New’ technologies and precaution/prevention: in light of scientific uncertainties

Shale gas is often referred to as a ‘new’32 or ‘emerging’33 technology or resource, which is associated with knowledge gaps and scientific uncertainties, especially with regard to environmental impacts. Hence the technology is often perceived to be a risky one. The 18th Coalition Agreement of the Grand Coalition in Germany for example refers to shale gas as a technology with an ‘enormous risk potential’.34 However, one can question whether the technology (and its impacts) is really new and subject to uncertainties or whether it is rather the likelihood of the impacts which is in question. The view of the President of the German Federal Institute for Geosciences and Natural Resources (BGR), Prof. Dr. Hans-Joachim Kümpel, hints towards this direction: ‘when critics, in connection with fracking speak of an uncontrollable high-risk technology from a scientific perspective this is simply wrong’.35

The perception of the technology’s risk potential thus differs among stakeholders (and not only in terms of the classical industry/NGO divide).36 From an academic point of view the following need to be examined: the role of science; the status of shale gas as a ‘risky’ or ‘new’ technology; and the overarching relationship and context with the European environmental principles, in particular with regard to prevention and precaution. Where is the ‘new’ in ‘new technologies’? How does this matter for regulation? Is there really much uncertainty in shale gas technology? Arguably the uncertainties stem from the likelihood of the impacts rather than from the impacts themselves. Thanks to the US experience there is already relevant practical understanding of the technology and its potential impacts, however, we do not know how likely it is that these impacts will occur in practice, let alone the best way to regulate and prevent them. If this is the de facto discussion, academic attention needs to shift away from debating the precautionary principle in relation to shale gas and move to a preventive perspective. How can the risks (not uncertainties any more) be best addressed and prevented in practice? This does not just have an academic angle to it, but also carries practical relevance for operators and regulatory authorities.

Shale gas research in the EU is modern and sophisticated. However, the focus set by legal scholars until now is too narrow. In order to gain a real understanding of the regulatory issues involved, as well as the location of shale gas in the overall European energy and environmental law and policy framework, academia needs to broaden its perspective and consider shale gas within the additional four aspects discussed above. This volume attempts to close this gap.

1.2    Coherence in European Energy and Environmental Law

The concept or principle of ‘coherence’ is not in itself primarily a legal concept, and can be used in various disciplines. In the legal context however, ‘coherence’ has been described as:

the principle of justification of external limitations from the perspective of the legal system as a whole. A legal system is not a static chain of external limitations: It is on the contrary a complex and dynamic set of intertwined propositions concerning what ought to be done and how it ought to be done.37

In relation to ‘consistency’, Wintgens concludes that ‘some would say that consistency is a matter of all or nothing. Coherence in its turn is a matter of degree’. On this view, consistency is a logical requirement while coherence refers to ‘making sense as a whole’.38 One can conclude that whereas consistency refers to the absence of contradiction, coherency means being ‘integral in itself’.

In line with this definition, one important aspect of a coherent regulatory approach to shale gas activities is that it ‘makes sense as a whole’39 , rather than being narrow-minded about every aspect of regulation. A similar perception of the concept is applied by Rescher’s ‘network model of coherence’.40 As shale gas and other analysed issues like CCS and nanotechnology demonstrate, impacts on the environment are cross-cutting by nature, affecting several elements of the environment and other disciplines at the same time. Therefore, these issues do not fit into the classical model of coherence, where one element is based or founded on another.41 Rather, the network model sees a system as ‘a family of interrelated theses not necessarily of hierarchical arrangement, but rather linked among one another by an interlacing network of connections’.42 Instead of a hierarchical structure where one element is based on another, a ‘cyclical’ structure is needed in order to cope with multiple environmental impacts where the various elements are interrelated with each other. This definition of an overall regime ‘making sense as a whole’, being ‘linked among one another’ and avoiding ‘a logic which is too sector-specific’43 will serve as a basis for this volume.

Sanden claims that coherence should become not only a general principle of EU law, but is particularly relevant within the environmental area.44 Indeed, even if not (always) referred to as such, several elements of ‘coherence’ as defined above are already included in the TFEU. Article 7 TFEU provides that ‘[t]he Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers’. Whereas the English version refers to ‘consistency’, other languages refer to ‘Kohärenz’ (German), ‘coherence’ (French), ‘coherencia’ (Spanish) and ‘coerenza’ (Italian). As the different translations are all equally authentic,45 one can conclude that the concept of ‘coherence’ already forms an integral part of EU law. Moreover, the White Paper includes ‘coherence’ as one of five principles46 of good governance.47 However, it does neither establish a clear definition, nor criteria for the achievement and measurement of the principle.48 In addition, the integration principle in Article 11 demanding the integration of environmental protection requirements into other Union policies includes the element of ‘linked among one another’. In the environmental area, the establishment of coherency within regulation is seen as one of the main challenges for the future.49

This volume addresses the issue of coherence of European environmental and energy law in multiple dimensions. The following chapter will subject the ‘coherence’ of the division of vertical and horizontal competences regarding legislation in the energy and environmental area to scrutiny. It will be established whether the inclusion of a separate legal basis for energy issues contributes to a more coherent regulation of cross-cutting issues at a European level. Chapter 3 analyses the coherency in the approaches taken towards the regulation of ‘new’ technologies. From this multifaceted analysis some general conclusions (Chapter 4) will be drawn regarding the (in)coherent regulation of energy and environment in the European Union, using shale gas as a case study.

2.    SHALE GAS TECHNOLOGY AND ITS IMPACTS ON THE ENVIRONMENT

Shale gas, primarily composed of methane, is gas which is trapped in compressed, fine-grained, sedimentary rock formations, the exact geochemistry of which differs from shale to shale. The development process phase of shale gas can be divided into three stages: the prior to operation (discovery phase: planning, gathering knowledge of the reservoir); the exploration and extraction phase (drilling phase: operational phase, applying techniques and optimizing output, and hydraulic fracturing); and the closure phase.50 Shale gas hydraulic fracturing refers to the technique of extracting gas within the rock formations through the creation of fractures.51 In order to release the gas, water is injected at a high pressure into the shale formation. Mixed with sand and other fracturing fluids,52 it keeps the fractures open and thus increases the permeability so that the gas can flow.53 Through the technology of hydraulic fracturing, which deepens the original capture zone in the shale (by vertical drilling) to hundreds of metres, the gas produced per well increases, making the production of shale gas commercially viable.54

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Source: International Energy Agency, Golden Rules for a Golden Age of Gas – World Energy Outlook Special Report on Unconventional Gas (2012), at 25.

Figure 1.2    The shale gas exploration process and associated environmental impacts

From the brief description of the development process it can already be inferred that the extraction of shale gas is associated with impacts on and risks to the environment.55 Extraction can adversely affect various aspects of the environment such as water resources, freshwater wetlands, ecosystems and wildlife, air quality, noise level, the seismicity of the rocks and can cause visual impacts on the site.56 This introduction will not describe nor assess all possible adverse impacts and risks of the technology, but will provide three brief examples.57

First, regarding air pollution, even if the footprint of shale gas has not been at the centre of the scientific investigation yet, it has been argued that shale gas is not as ‘clean’ as has been assumed by some scholars and policy-makers, who referred to shale gas as a ‘bridge technology’ for a low-carbon economy.58 According to some scientists,59 shale gas extraction can even exacerbate global warming and has a larger footprint than the production of coal and conventional gas.60 Emissions from shale gas development arise from drilling, completion and production activities.61 During the fracturing and drilling process itself, around 3–7 per cent of the methane in shale gas is believed to escape into the air. The emissions mostly derive from flowback water and fluids. Regarding conventional gas resources, the escaping methane emissions are estimated to range between 1–6 per cent.62 Not to be disregarded are also the emissions resulting from increased trucking infrastructure for the transport of clean and waste water, sand and equipment and materials.63

In addition, the hydraulic fracturing process can change the seismicity of the rock permanently, which can lead to seismic events or earthquakes and further impact (local) water resources. Depending on the individual rock formation, between three and four million gallons of fresh water per well can be required, which – depending on the area – can have significant impacts on the local water capacity and lead to an over-use of local water resources.64 Concerns associated are the adverse impact of water withdrawals, waste water treatment and disposal, as well as impacts on the local drinking water supply. Furthermore, the use of water and chemicals during the drilling and fracturing phase can lead to water pollution through flowback and from drilling fluids. Additional concerns relate to the pollution of surface and groundwater due to surface spills and leaks in pits which store the water for disposal or recycling.65 Depending on the location and surroundings of the shale, groundwater usage can reach up to 4590 per cent.66 The fracturing process can result in large amounts of flowback water from the treatment itself, or in produced water, which is concentrated subterranean saltwater from the rock formation brought to the surface during the drilling process.67 The flowback water that returns to the surface after the treatment has been mixed with fracturing fluids and can be contaminated with chemicals.68

Third and finally, the methods of the waste and drilling water treatment depend on the individual shale, but three options are available: underground injection; treatment and discharge; or recycling.69 Underground injection, being the easiest and most often first choice, requires a porous and permeable injection zone with reserve and storage pits near the fracturing area. Concerns are the contamination of groundwater due to leakage of those pits or spills, as well as the destruction of flora and fauna on the surface.70 In cases where such zones are not available, the produced water is transported to either municipal waste water treatment plants or commercial treatment facilities.71 Accidents and spills due to transport on highways and through residential areas are concerns associated with this method.72 The third method, to recycle the water, is only an option for drilling water, as waste water cannot currently be recycled due to the high degree of corrosiveness and contamination. With regard to the amount of water needed for the operation, this method seems to be reasonable and appropriate, but is still limited due to inefficiency, the limited amount of recycling capacity and economic reasons, as the disposal of drilling water in pits is less expensive.73

3.    METHODOLOGY

3.1    Research Questions and Overall Structure

This volume examines the possibility of a coherent regulation of energy and environment in the EU – using shale gas as an example. Accordingly, the overall research question is:

To what extent does the regulation of ‘new’ technologies such as shale gas highlight the challenges of a coherent regulation of energy and environment in the European Union?

In order to answer the questions raised in the introductory chapter, as well as the overarching research question, this volume is divided into four chapters in total. Each chapter will answer one or more research questions and related sub-questions.

Chapter 2 addresses the legal basis for environmental and energy regulation at EU level. It will examine the horizontal and vertical division of competence relating to shale gas. It examines the impacts on a CEP which shale gas might bring about. This chapter answers the following questions and related sub-questions:

•   What is the legal relationship between Title XX on the Environment and XXI TFEU on Energy in terms of energy security of supply concerns and environmental concerns: are they really mutually compatible or does one take precedence over the other?

o    To what extent does the Union have competence to act regarding shale gas?

o    How does this relationship play out on a Member State level regarding each State’s right to determine the conditions for exploiting its energy resources?

•   How will the issue of shale gas affect the Union’s quest for a Common European Energy Policy in the absence of a Treaty provision?

•   Do the energy title and its opt-out mechanism in the second paragraph prevent a Common Energy Policy (on unconventional gas resources) in the future?

Chapter 3 deals with risk and regulatory design in the EU. It compares the regulation of other ‘new’ technologies such as CCS and nanotechnology with shale gas and establishes which lessons can be learned from shale gas. It will focus on the final two research questions:

•   What are the lessons learned from regulatory design (failures) of technologies of the past?

•   What is the ‘new’ in new technologies? And how does this matter for the regulation?

3.2    Selection, Structure and Criteria of the Comparative Cross-cutting Technologies

Chapter 3 of this volume compares the regulatory framework and history of shale gas technology with other cross-cutting or ‘new’ technologies, namely CCS technology and nanotechnology. These case studies have been selected on the grounds that each technology illustrates another problem and is subject to another form of regulatory design. The CCS technology serves as a point of reference for an integrated approach to regulation of a ‘new’ technology, while nanotechnology represents a clear application of a precautionary approach to regulation.74 At EU level, all technologies have been regulated before the inclusion of a separate legal basis on energy, and hence have been subject to the old set-up of competences.

In addition, the technologies have been referred to as (and to some extent still are) ‘new’ technologies, although the regulatory approaches to them differ. Chapter 3 accordingly analyses the correlation of ‘newness’, ‘bindingness of the measure’, ‘underlying regulatory principle (prevention/precaution)’ and ‘public debate’, as well as the ‘business case’.

The chapter aims not at outlining the regulatory approaches taken towards nanotechnology and CCS in detail, but rather focuses on aspects which are relevant regarding the regulation of shale gas. Taking into account the overall aim of the chapter, namely to analyse the regulatory trend taken towards the regulation of ‘new’ technologies and to establish if there is a link between the regulatory design and newness, the following criteria have been established:

•   Process and general direction of regulation

•   Risk management and the precautionary and preventive principles

•   Addressing the public debate

•   The business case.

3.3    Demarcation of Scope

The volume is focused on the regulatory framework and related questions for shale gas and includes major developments in legislation and policy up until 1 May 2015.

1   See for a discussion on possible lessons for the European and Asia-Pacifica natural gas market: K. Talus, ‘United States natural gas markets, contracts and risks: what lessons for the European Union and Asia-Pacific natural gas markets?’ Energy Policy 75 (2014), 28–34.

2   E. Crooks, ‘US shale gas exports to hit Gazprom revenue’, Financial Times, 21.09.2014, available at www.ft.com/cms/s/0/34c90b6c-419f-11e4-b98f-00144feabdc0.html#axzz3eBGBmZSt; last accessed 26.06.2015; as well as US EIA, ‘U.S. energy imports and exports to come into balance for first time since 1950s’, 15.04.2015, available at www.eia.gov/todayinenergy/detail.cfm?id=20812; last accessed 16.09.2015.

3   For an overview of shale gas (legislative) developments across the world, please refer to B. Palmer and P. Shah, ‘Recent developments in shale gas in the UK, Algeria, Argentina, Canada, China, India, Poland, South Africa, Ukraine and USA – an update’ Environmental Liability 21(1) (2013), 14–24.

4   For a definition and further explanation of the technology, refer to section 2 below.

5   M. Engelhardt and H. W. Louis, ‘Rechtliche Betrachtungen zum “Fracking”’ Natur und Recht 36 (2014), 548–55.

6   D. Bryden, J. Nierinck and R. Parish, ‘UK shale gas: mapping the current regulation and legal landscape’ 22(1) Environmental Liability (2014), 28–40.

7   For a comparative assessment on the regulatory provisions in eight different Member States please refer to M. Ballesteros, F. Pelsy and L. Reins, Regulatory Provisions Governing Key Aspects of Unconventional Gas Extraction in Selected Member States (Brussels: Milieu Ltd., 2013) available at http://ec.europa.eu/environment/integration/energy/pdf/Final%20Report%2024072013.pdf; last accessed 30.06.2015.

8   See also the structure of ibid.

9   ICF International, Mitigation of Climate Impacts of Possible Future Shale Gas Extraction in the EU: Available Technologies, Best Practices and Options for Policy Makers (ICF International, 2014) available at http://ec.europa.eu/clima/policies/eccp/docs/mitigation_shale_gas_en.pdf; last accessed 30.06.2015.

10 Please refer to L. Reins, ‘The shale gas extraction process and its impacts on water resources’, Review of European Community & International Environmental Law 20(3) (2011), 300–12.

11 S. Gottardo, V. Amenta, A. Mech and B. Sokull-Klüttgen, Assessment of the Use of Substances in Hydraulic Fracturing of Shale Gas Reservoirs under REACH (JRC, 2013) available at http://publications.jrc.ec.europa.eu/repository/bitstream/111111111/29386/1/req_jrc83512_assessment_use_substances_hydraulic_fracturing_shale_gas_reach.pdf; last accessed 30.06.2015.

12 See in more detail also L. Reins, ‘A research agenda for shale gas: challenges to a coherent regulation in the European Union’ RELP – A Journal of Renewable Energy Law and Policy 5(2) (2014), 167–71.

13 For further discussion see Chapter 3.2 below regarding the need for a discussion on whether the technology is really new, and how this can potentially impact its regulation.

14 ‘Vertical competences’ thereby meaning the division of competences between the EU and the Member States, and ‘horizontal competences’ the division of competences on the European level in different ‘areas’ and legal bases (here for example ‘energy’ and ‘environment’).

15 For example see R. Bailey, ‘Headings for an EEC Common Energy Policy’ Energy Policy 4(4) (1976), 308–21; as well as T. Daintith andL. Hancher, Energy Strategy in Europe: The Legal Framework (Berlin and New York: Walter de Gruyter, 1986).

16 European Commission, ‘Green Paper – A European strategy for sustainable, competitive and secure energy, Brussels’, 8.3.2006, COM(2006)105, at 4; for further information see: A. V. Belyi, ‘New dimensions of energy security of the enlarging EU and their impact on relations with Russia’ Journal of European Integration 25(4) (2003), 351–69.

17 For example S. Afifi, M. Hassan and A. Zobaa, ‘The impacts of the proposed Nabucco gas pipeline on EU Common Energy Policy’ Energy Sources, Part B: Economics, Planning, and Policy 8(1) (2013), 14–27.

18 See also S. de Jong, J. Wouters and S. Sterkx, ‘The 2009 Russian–Ukrainian gas dispute’ European Foreign Affairs Review 15 (2010), 511–38; as well as S. Pirani, J. Stern and M. Yafimava, ‘The Russo-Ukrainian gas dispute of January: a comprehensive assessment’ 27 Oxford Institute for Energy Studies Working Paper (2009).

19 C. Egenhofer, and A. Behrens, ‘The future of EU energy policy after Fukushima’ Intereconomics Review of European Economic Policy 3 (2011), 124–8.

20 S. de Jong and W. Auping, The Geopolitics of Shale Gas (The Hague Center for Strategic Studies, 2014).

21 European Commission, ‘Communication on the exploration and production of hydrocarbons (such as shale gas) using high volume hydraulic fracturing in the EU’, Brussels, 17.3.2014, COM(2014) 23.

22 European Council Conclusions of 4 February 2011, Brussels, 8 March 2011, EUCO 2/1/11 REV 1, at 4.

23 Concerning the areas of climate, air, land, biodiversity, waste or water, see European Commission, ‘Energy and environment’, available at http://ec.europa.eu/environment/integration/energy/index_en.htm; last accessed 26.06.2015.

24 Tranter claims that the ‘piecemeal, issue-specific – indeed, case-by-case – thinking about law and technology has produced a piecemeal, issue-specific set of knowledge about law and technology’. This volume will assess if this holds true or if there are some common determinations for technology regulation.K. Tranter, ‘The laws of technology and the technology of law’ Griffith Law Review 20(4) (2011), 753–62, at 754.

25 Commission Recommendation 2011/696/EU of 18 October 2011 on the definition of nanomaterial, [2011] OJ L275/38.

26 Recommendation of 7 February 2008 on a code of conduct for responsible nanosciences and nanotechnologies research, C(2008) 424.

27 Directive 2009/31/EC of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No. 1013/2006, [2009] OJ L 140/114.

28 Directive 2000/60/EC of 23 October 2000 establishing a framework for Community action in the field of water policy, [2000] OJ L 327/1.

29 Directive 2006/12/EC of 5 April 2006 on waste, [2006] OJ L 114/9.

30 See also K. J. De Graaf and J. H. Jans, ‘Environmental law and CCS in the EU and the impact on the Netherlands’ in: M. M. Roggenkamp and E. Woerdman (eds) Legal Design of Carbon Capture and Storage: Developments in the Netherlands from an International and EU perspective (Antwerp: Intersentia, 2009), 157–81, at 158f.

31 See European Commission, DG CLIMA, ‘Ensuring safe and environmentally sound CCS’, available at http://ec.europa.eu/clima/policies/lowcarbon/ccs/index_en.htm; last accessed 26.06.2015.

32 See for example Argonne National Laboratory, ‘Hydraulic fracturing and shale gas production: technology, impacts, and regulation’, available at www.afdc.energy.gov/uploads/publication/anl_hydraulic_fracturing.pdf; last accessed 26.06.2015, at 7, 12 and 18.

33 For example, US Energy Information Administration, ‘Review of emerging resources’, available at www.eia.gov/analysis/studies/usshalegas/pdf/usshaleplays.pdf; last accessed 26.06.2015.

34 Koalitionsvertrag zwischen CDU, CSU und SPD, ‘Deutschlands Zukunft gestalten’, available at www.cdu.de/sites/default/files/media/dokumente/koalitionsvertrag.pdf; last accessed 26.06.2015, at 44.

35 Interview on RBB Inforadio, Programme ‘Zwolfzweiundzwanzig’, on the topic: ‘Fracking – justifiably controversial?’, 14.06.2014, available at www.inforadio.de/programm/schema/sendungen/zwoelfzweiundzwanzig/201406/204963.html (in German only).

36 G. N. Mandel, ‘Regulating emerging technologies’ Law, Innovation and Technology 1(1) (2009), 75–92.

37 L. J. Wintgens, ‘Legisprudence as a new theory of legislation’ Ratio Juris 19(1) (2006), 1–25, at 15.

38 Ibid.

39 Ibid.

40 N. Rescher, ‘Foundationalism, coherentism, and the idea of cognitive systematization’ Journal of Philosophy 71 (1974), 695–708.

41 The classical ‘Euclidean Model’ is also described in ibid., at 698f.

42 Ibid., at 699.

43 European Commission, ‘European governance – A white paper’, COM(2001) 428, OJ C 287, 12.10.2001, at 10.

44 J. Sanden, ‘Coherence in European environmental law with particular regard to the Industrial Emissions Directive’, European Energy and Environmental Law Review 21(5) (2012), 220–38, at 220.

45 ECJ, Case C-283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415.

46 The other principles are: openness; participation; accountability; and effectiveness.

47 For a more detailed discussion, please refer to M. Smith, ‘Tracing the development of administrative principles in the EU: a possible new approach to legitimacy?’ in: M. Trybus and L. Rubini (eds) The Treaty of Lisbon and the Future of European Law and Policy (Cheltenham: Edward Elgar, 2012), 97–113, at 102f.

48 European Commission, note 43 above, at 7.

49 M. Peeters and R. Uylenburg, ‘Concluding observations: three core themes’ in: M. Peeters and R. Uylenburg (eds) EU Environmental Legislation: Legal Perspectives on Regulatory Strategies (Cheltenham: Edward Elgar, 2014), 235–57, at 242f.

50 Phases adopted after Halliburton Energy Services, U.S. Shale Gas: An Unconventional Resource. Unconventional Challenges (2008), at 2. Other scholars however refer to more or different stages of production. See for example J. J. Adgate, B. D. Goldstein and L. M. McKenzie, ‘Potential public health hazards, exposures and health effects from unconventional natural gas development’ Environmental Science and Policy 15(48) (2014), 8307–20.

51 For further and more detailed information about the definition, geology and geochemistry on shale gas see ibid.

52 For further information on fracturing fluids and their use see J. D. Arthur, B. Langhus and D. Alleman, An Overview of Modern Shale Gas Development in the United States (ALL Consulting, 2008), at 14f.

53 A. J. Bailey, ‘The Fayetteville Shale Play and the need to rethink environmental regulation of oil and gas development in Arkansas’ Arkansas Law Review 63 (2010), 815–48, at 819ff.

54 See Deloitte, ‘Shale gas – A strategic imperative for India’ (2010) at 3f; for more information about the process of recovering shale gas see C. Robinsonand M. E. Walta, ‘Note, water for oil shale: framework for the legal issues’ Denver Law Journal 58 (1980), 703–14; as well as J. D. Arthur, B. Bohm and M. Layne, Hydraulic Fracturing Considerations for Natural Gas Wells of the Marcellus Shale (ALL Consulting, 2008), at 1.

55 See Bailey, note 53 above, at 819ff, also for further impacts on the environment.

56 For a detailed analysis of the factors, see Department of Environmental Conservation, New York State, ‘Chapter 6, Potential environmental impacts’ in: Draft Supplemental Generic Environmental Impact Statement on the Oil, Gas and Solution Mining Regulatory Program – Well Permit Issuance for Horizontal Drilling and High-Volume Hydraulic Fracturing to Develop the Marcellus Shale and Other Low-Permeability Gas Reservoirs (2009), as well as J. T. Bartis,T. LaTourrette, L. Dixon, et al., Oil Shale Development in the United States: Prospects and Policy Issues (Santa Monica, CA: RAND Corporation, 2005) at 35ff.

57 For a detailed description of the risks associated with shale gas see alsoT. J. Centner and N. S. Eberhart, ‘The use of best management practices to respond to externalities from developing shale gas resources’ Journal ofEnvironmental Planning and Management 55(11) (2015), 4978–90 at 4980ff, as well as UBA, Umweltauswirkungen von Fracking bei der Aufsuchung und Gewinnung von Erdgas insbesondere aus Schiefergaslagerstätten Teil 2 – Grundwassermonitoringkonzept, Frackingchemikalienkataster, Entsorgung von Flowback, Forschungsstand zur Emissions- und Klimabilanz, induzierte Seismizität, Naturhaushalt, Landschaftsbild und biologische Vielfalt, (2014), available at www.umweltbundesamt.de/sites/default/files/medien/378/publikationen/texte_53_2014_umweltauswirkungen_von_fracking_0.pdf (last accessed 06.10.2015), at AP 125ff, and at APR 41ff.

58 M. R. Cady, ‘Drilling into the issues: a critical analysis of urban drilling’s legal, environmental and regulatory implications’ Texas Wesleyan Law Review 16(1) (2010), 127–58, at 146f.

59 For example, see Council of Scientific Society Presidents, ‘Letter from the council to President Obama and senior administration officials’, 04.05.2010, available at www.eeb.cornell.edu/howarth/CCSP%20letter%20on%20energy%20&%20environment.pdf; last accessed 26.05.2015.

60 See Bartis et al., note 56 above, at 40.

61 For a detailed analysis and calculation of the emissions, see Department of Environmental Conservation, note 56 above, at 60f.

62 R. W. Howarth, R. Santoro and A. Ingraffea, ‘Methane and the greenhouse-gas footprint of natural gas from shale formations – A letter’ Climatic Change 106(4) (2011), 1–12, at 1.

63 Bailey, note 53 above, at 819ff.

64 Ibid.

65 Cady, note 58 above, at 138f, as well as Department of Environmental Conservation, note 57 above, at 3f.

66 Ibid., at 139.

67 Ibid., 140f, as well Arthur et al., note 52 above, at 19.

68 For more information, see Cady, ibid., at 140f.

69 Bailey, note 53 above, at 819ff.

70 Cady, note 58 above, at 140f, as well as Arthur et al., note 52 above, at 19.

71 Arthur et al., note 52 above, at 21.

72 Cady, note 58 above, at142f.

73 Ibid., at 146f.

74 For a more detailed reasoning of the selection of the technologies, please refer to Chapter 3.1.