In Search of the Legal Basis for Environmental and Energy Regulation at the EU Level: The Case of Unconventional Gas Extraction

• Published date: 01 April 2014
• Author: Leonie Reins
• DOI: http://doi.org/10.1111/reel.12057
• Date: 01 April 2014

In Search of the Legal Basis for Environmental and

Energy Regulation at the EU Level: The Case of

Unconventional Gas Extraction

Leonie Reins

The relation of the energy and environmental

competences in the European Union (EU) in terms of

renewable energy and its promotion and impact on

climate change has been subject to intense academic

discussion as well as to judicial review. The general

tendency is for measures regarding renewable energy

to be passed on both competences, depending on the

specific content and objective. Other forms of energy,

however, have not been included in this debate. The

outcome outside the area of renewable energy is

expected to be quite different. Shale gas extraction, for

example, is associated with negative, or at least prob-

lematic, environmental impacts, alongside the benefits

it offers to the security of the EU’s energy supply. Con-

sequently, the question of competence is not straight-

forward. This article analyzes the interplay and

conflicts between the energy and environmental titles

of the Treaty on the Functioning of the European

Union in the context of shale gas activities. The article

further explores the importance of ‘significance’ in this

setting, and how this concept is crucial in determining

the appropriate decision-making procedure to pass a

legal measure on shale gas in practice.

INTRODUCTION

To adapt to newly emerging environmental and energy

challenges, European energy and environmental law

has undergone many revisions throughout the past

thirty years.1The successful regulation of all environ-

mental aspects of human activities, and the interaction

between environmental and energy priorities, has

proven to be challenging.2The inclusion of the new

Title XXI on Energy in the Lisbon Treaty3changed the

Union’s competences and the legal basis for it to act on

these matters. It remains to be seen whether this new

constitutional set-up is better suited than previous

models to simultaneously achieve security of energy

supply and environmental protection.4

One emerging subject in both areas of law, testimony to

the challenge outlined above, is the extraction of shale

gas resources. This topic has become more prominent

owing to increases in both energy demand in the Euro-

pean Union (EU) and dependence on gas imports from

third countries such as Russia.5The large-scale and

manipulative nature of hydraulic fracturing techniques

elicits a mixed response due to a large realm of

unknowns not only about externalities, but also con-

cerning the ability of the technology to deliver.6Char-

acterized by uncertainties and the possibility to address

climate change, shale gas extraction raises several

1See, e.g., C. Hey, ‘EU Environmental Policies: A Short History of the

Policy Strategies’, in: S. Scheuer, (ed.), EU Environmental Policy

Handbook (European Environmental Bureau, 2005), 17; and L.

Hancher, ‘Energy and the Environment: Striking a Balance?’ 26:3

Common Market Law Review (1989), 475. See also G. Van Calster

and L. Reins, EU Environmental Law (Edward Elgar, forthcoming).

2Especially in the issue areas of climate change, air, land, biodiversity,

waste and water. See generally: <http://ec.europa.eu/environment/

integration/energy/index_en.htm>.

3Treaty of Lisbon amending the Treaty on European Union and

the Treaty establishing the European Community, [2007] OJ

306/1.

4D. Benson and A. Jordan, ‘A Grand Bargain or an Incomplete

Contract? European Union Environmental Policy after the Lisbon

Treaty’, 17:5 European Energy and Environmental Law Review

(2008), 280, at 280.

5See also KPMG Global Energy Institute, Central and Eastern Euro-

pean Shale Gas Outlook (KPMG, 2012), at 58ff.

6See, e.g., the differences in the estimation of the amount of

resources in Poland: J. Teusch, ‘Shale Gas and the EU Internal Gas

Market: Beyond the Hype and Hysteria’ (Centre for European Policy

Studies, 2012), at 3. The reference values can be expressed in ‘in

place’ resources or technically recoverable resources, estimations

and calculations of which can differ considerably. For an explanation

of the two calculation methods, see I.J. Andrews, The Carboniferous

Bowland Shale Gas Study: Geology and Resource Estimation (British

Geological Survey for Department of Energy and Climate Change,

2013), at 10; and C. McGlade, J. Speirs and S. Sorrell, ‘Methods of

Estimating Shale Gas Resources: Comparison, Evaluation and Impli-

cations’, 59 Energy (2013), 116. For an overview of currently techni-

cally recoverable resources worldwide, see US Energy Information

Administration, Technically Recoverable Shale Oil and Shale Gas

Resources: An Assessment of 137 Shale Formations in 41 Countries

Outside the United States (US Department of Energy, 2013), found

at: <http://www.eia.gov/analysis/studies/worldshalegas/pdf/overview

.pdf>,at10.

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Review of European Community & International Environmental Law

RECIEL 23 (1) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12057

© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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