Shale gas firms face binding law if they fail ‘scoreboard’ test

EXCLUSIVE / European countries allowing shale gas drills will have to publish a ‘scoreboard’ showing compliance with ‘best environmental practices’ which could become legally-binding within 18 months, under new EU rules seen by EURACTIV.

The EU would require extensive public consultations and environmental impact assessments to be undertaken by member countries before any new drills could be allowed, the document says.

Defiance of the recommendations would trigger a review that could make them "legally binding" in July 2015.

“A site should only be selected if the risk assessment conducted under this chapter demonstrates that no direct discharge of pollutants into groundwater will result from high volume hydraulic fracturing,” the document says.

Such fracturing is defined as the injection into a well of 1000 cubic metres or more of water per ‘frack’ – or of 10,000 cubic metres of water for an entire fracking process.

Possible restrictions are flagged for flood and seismic-prone areas, and member states are instructed to ensure that installations “are constructed in a way which prevents possible surface leaks and spills to soil, water or air.”

Water flows should be traced, methane emissions should be monitored and “specific infrastructure to capture and transport associated natural gas should be installed”, with flaring minimised, and venting avoided, the paper continues.  

Firms would also be obliged to monitor the precise composition of the fracturing fluid used for each well, the volume of water used for its fracking, the pressure applied during the fracking process, and the fluids that subsequently emerge at the surface.

The recommendation outlines how the Commission would closely monitor the rules’ implementation “in the form of a scoreboard”. A review on 22 July 2015 would then consider “updating its provisions and the need for developing harmonised and legally binding provisions,” if implementation has been ineffective.

But environmentalists and green politicians were downcast after reviewing the proposal. “I think it is sad that the European Commissioners are protecting the interests of a handful of fossil fuel companies rather than the interests of Europe’s citizens,” the Green MEP Claude Turmes told EURACTIV.

He called on "responsible" European Commissioners to speak out while the proposal remained in Inter-Service consultations before a 22 January launch.

Less than a directive

The new recommendations are less biting than the directive originally sought – and prepared – by the European Commission’s environment directorate.

But EURACTIV understands that they are still being opposed behind the scenes by the Commission’s secretary-general Catherine Day and the commissioners for energy, industry and the budget, all of whom would prefer an ‘advice’ document with less legal clout.

Even so “the Commission’s legal services are 90% on our side,” one source close to the current proposal said, on condition of anonymity.

Feelings are running so high that the Environment Commissioner, Janez Poto?nik, is reserving the option of withdrawing any proposal at all, rather than risk allowing a weak and environmentally-unfriendly position to get an EU rubber-stamp.

Despite the rules’ non-binding character, and past experience of what this can mean in Brussels, officials say that it could ultimately be more effective to pass them than to face protracted and time consuming opposition to legislation from London and Warsaw.

“To a large extent, shale gas drills are already covered under existing legislation,” one EU official said on condition of anonymity.

“There are some gaps but the Environmental Impact Assessment Directive applies at certain volumes, the Water Framework Directive applies, the Mining Waste Directive too – there is a body of legislation there already and if we make a shale gas recommendation, it can achieve the same thing (as a directive).”

State aid inquiry for UK shale gas plans?

Having won an intense backroom battle involving diplomatic manoeuvres and pressure on the Commission's president, the UK has to some extent pre-empted the EU’s plans.

Yesterday (13 January), UK Prime Minister David Cameron announced that councils could keep twice as much money in local taxes from shale gas firms as from other businesses, which would boost the industry. 

This may not necessarily fall foul of the EU’s new recommendations.

“Providing they carry out the public consultations and Environmental Impact Assessment then it would not prevent that,” one EU source said. “Tax breaks come more under state aid.”

The Green MEP Claude Turmes agreed, calling for an EU state aid investigation into the UK's plans to be launched immediately. “This goes clearly against the EU decision to phase out fossil fuel subsidies,” he told EURACTIV. “It is like bribing local politicians to allow an environmentally extremely harmful operation.” 

British officials contacted by EURACTIV declined to comment.

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