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7. Conclusions
7.1 MAIN RESULT
This book highlighted two things. First, it showed why cautious, but
permissive regulation is the legally soundest way to administer shale gas
extraction in the European Union. Second, it used shale gas as a casestudy to demonstrate how a new methodology for energy regulation,
the trias of (quasi-) constitutional objectives, law principles and rules, is
leading to a concrete regulatory framework.
The lessons to be learnt are twofold and transcend the context of
shale gas regulation. The first lesson concerns the role of environmental protection and energy security for energy regulation in the
European Union. In cases where both ideas are competing with each
other, the interests need to be reconciled by practical concordance
to create a legally sound framework. This interplay is a crucial, pre-­
empting factor for the shape of regulatory frameworks on emerging
energy technologies.
The second lesson is the trias of (quasi-) constitutional objectives,
law principles and rules that is thought of as a methodological tool for
decision-makers to provide orientation and facilitate the design of a legal
framework for new energy technologies. Accordingly, the conclusions
of this book stand on two legs: the first concerns the interplay of environmental protection and energy security in shale gas regulation and the
second leg consists of the new trias-methodology.
7.2 FIRST LEG OF CONCLUSIONS
The point of departure for this book was the fact that shale gas extraction
is not a ‘new’ technology in its own right because it is brought about by
a combination of two pre-existing technologies, directional/horizontal
drilling and hydraulic fracturing. As this combination of technologies
opens up previously inaccessible areas for gas extraction, the number
and scope of potential environmental threats also increases, compared to
conventional gas extraction. However, at the same time there are potential
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Shale gas, the environment and energy security
benefits, primarily the possibility of boosting Europe’s energy security
with the help of domestically produced shale gas.
Four (to five) most salient potential environmental threats of shale
gas extraction may be contrasted with four main potential benefits for
Europe’s energy security. It is crucial to note that neither the four potential
energy security benefits nor the four potential environmental threats have
yet been established by scientists beyond reasonable doubt. All threats
and benefits are still shrouded, to a greater or lesser extent, in scientific
uncertainty concerning their scale, severity and even their very existence.
The scientific argument is vivid and numerous studies with inconclusive
results have been conducted and basic research is on-going. That is why it
is apt to point out that these are potential threats and benefits.
The grouping of potential threats and benefits into those related to
environmental protection and those related to energy security requires
a conceptual look at the interplay of these two concepts. Although both
concepts interact strongly in shale gas regulation, each concept exists in its
own right. Despite a recent trend in legal literature to view environmental
protection as part of the definition of energy security, this book takes
the position that the two concepts should be distinguished. An inclusion
of environmental considerations in the very definition of energy security
would complicate the legal conversation and is not necessary. As this work
showed, each concept anyway constrains the scope of the other, as they
represent different poles in the energy ‘trilemma’.
The concepts of environmental protection and energy security are not
simply matters of societal or political interest, as frequently discussed in
the literature.1 In the past it has been overlooked that both concepts have
actual legal leverage. Environmental protection and energy security are
enshrined in European primary law and in Member State constitutions in
the form of (quasi-) constitutional objectives. Constitutional objectives are
very abstract norms and their purpose is to guide the creation of specific,
in the current case shale gas specific, regulation. Thus, environmental protection and energy security are steering political and legal decision making
on shale gas extraction at EU and Member State level.
Member States have to pay attention to the existing secondary EU law
framework for the environmental aspects of shale gas extraction. But the
regulation of the process as such is largely left to the Member States. This
1
See for example Raphael J Heffron, Darren McCauley and Benjamin K
Sovacool ‘Resolving society’s energy trilemma through the Energy Justice Metric’
(2015) 87 Energy Policy 168/169 with further references. These authors put energy
security firmly into the group of political considerations.
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Conclusions261
led to the emergence of two groups of EU Member States, those in favour
of and those opposed to shale gas extraction. It seems as if the latter position has been adopted by a majority of Member States. Member States
that are opposed to shale gas extraction did not, however, adopt uniform
prohibitions. Measures range from ‘bans by law’ to ‘moratoria by law’ to
‘political moratoria’.
The central question is how much leverage a Member State wishes to
apportion to the constitutional objectives of environmental protection and
energy security. Theoretically, both constitutional objectives are equal in
their abstract rank, but in practice they compete with each other in the
case of shale gas extraction.
The strongest environmental protection can be achieved by a moratorium or a ban on shale gas extraction, but this solution would disregard
the energy security objective. Under a moratorium or a ban, the extraction
of shale gas would be illegal and domestic shale gas reserves could not be
developed to boost energy security. Vice versa, the best result with a view
to energy security may be achieved if shale gas extraction can proceed
without any environmental safeguard measures attached. However, this
solution would disregard the environmental protection objective.
As a solution, this book has put forward the ‘meta’-principles of unity
of the constitution and practical concordance. Reconciliation of the competing objectives of environmental protection and energy security can be
achieved in shale gas cases by the implementation of both objectives into
concrete shale gas regulation with the help of these ‘meta’-principles.
However, the obligation to strive for ‘optimization’ of the interplay
between objectives under the principles of unity of the constitution and
practical concordance finds its ultimate limitation in the principle of
proportionality. The legislator has discretion and is free to adopt whichever shale gas regulation he prefers. The approach to shale gas regulation adopted in any given jurisdiction is, ultimately, a political decision.
‘Optimization’ might only occur to the extent that this discretion is not
curtailed in a disproportionate manner. Allowing the legislator to reconcile constitutional objectives only at the highest point of realization of
both competing objectives would, in effect, remove that discretion. This
would infringe the separation of powers under the rule of law.
Meaningful shale gas regulation should strive for an ‘optimal solution’,
wherever this is practical, as the term practical concordance suggests.
However, the legislator is not obliged to adopt that particular solution. The prohibitive as well as the cautious, but permissive approach
to regulation are both open to the legislator. As this is a discretionary
decision, the adoption of either solution is theoretically possible under
current law.
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Shale gas, the environment and energy security
The final conclusion of this book with respect to the first leg is that
a cautious, but permissive approach to shale gas regulation is legally
sounder than prohibitive regulation. It would translate the competing
objectives environmental protection and energy security into one regulatory framework for shale gas extraction that could cater for both interests
at the same time. Shale gas could be extracted, but only at an environmentally sustainable scale.
Cautious, but permissive shale gas regulation would even constitute
the best option for a shale gas-sceptic legislator. It may encompass such a
broad variety of measures that its effective impact can be almost similar to
that of a moratorium, while the danger that it would be struck down by a
court for non-compliance with relevant (quasi-) constitutional objectives
is minimal.
7.3 SECOND LEG OF CONCLUSIONS
The second leg of conclusions pertains to the methodological trias
put forward by this book. Constitutional objectives like environmental
protection and energy security should be translated into legal principles
in decision-making processes and these principles, in turn, should be
translated into concrete rules. All three categories of norms, objectives,
principles and rules, represent gradations of one legal thought and are,
hence, interlinked with each other.
It should be stressed that the trias may be of general use as a methodology for the regulation of new energy technologies. Since energy law
is a very young discipline that has to keep up with rapid technological
developments,2 it is important to have a regulatory template for the
elaboration of new rules for new energy technologies. The methodology
put forward here could be applied mutatis mutandis to the development of
regulatory regimes on energy technologies that are today unheard of, but
which might be developed in the future.
The obvious field of application is that of innovations in the extractive
industry. This book has been written against the backdrop of depleting
conventional hydrocarbon reservoirs. Judging by the remarkable proliferation of innovative technologies to extract hydrocarbons that the world
witnessed during the last 20 years, it is likely that even more of these
technologies are going to emerge in the near future. Many of those future
2
Adrian J Bradbrook ‘Energy Law as an Academic Discipline’ (1996) Vol 14
No 2 Journal of Energy & Natural Resources Law 193–217.
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Conclusions263
technologies will bring about uncertainties, concerning potential threats
and benefits that are similar to those observed in the context of shale gas
extraction. Results from this study might hence help to guide regulatory
decision making on future energy regulation.
However, the potential use of the trias is not confined to the extractive
industry or renewable energy production, but it might also be put to good
use in the regulation of non-producing branches of the energy sector, such
as smart grids,3 an offshore grid in the North Sea,4 electricity storage5 and
energy interconnectors,6 to name but a few.
Besides multiple advantages, the trias also comes with some disadvantages attached to it. Its main setback is the fact that it will be used for
the development of new regulation. It applies prior to the adoption of
particular regulations. In doing so it focuses on the particular perspective
of constitutional theory on state objectives.7 A comprehensive assessment,
however, also needs to encompass a check of the proposed framework for
compliance with fundamental rights and that is not delivered by the trias.
This omission, however, is justified by the point in time when the trias
applies and the state of research. Checking compliance of new regulations
with fundamental rights has to be done post adoption of the particular
regulation. Inter alia, the exact wording of individual paragraphs as well
as their position within a legal framework, but also the guise and content
of fundamental rights in a given jurisdiction, are decisive for such an
assessment.
Sticking with the example of shale gas extraction, the compatibility of
More on the legal dimension of smart grids can be found at Anita Ronne
‘Smart Grids and Intelligent Energy Systems: A European Perspective’ in Martha
M Roggenkamp et al. (eds) ‘Energy Networks and the Law’ (Oxford University
Press, Oxford 2012) 141–4 and 156–9; Lea Diestelmeier and Dirk Kuiken
‘Sustaining Universal Service Conditions in Smart Electricity Systems’ (2016) Vol
18 No 3 Network Industries Quarterly 7/8.
4
Hannah Katharina Müller ‘A Legal Framework for a Transnational Offshore
Grid in the North Sea’ (Intersentia, Cambridge 2015).
5
Manuel Goetz et al. ‘Renewable Power-to-Gas: A technological and economic review’ (2016) Vol 85 Renewable Energy 1371–90.
6
A good introduction on the legal aspects of electricity and gas interconnectors may be found at Hans Vedder et al. ‘EU Energy Law’ in Martha M
Roggenkamp et al. (eds) ‘Energy Law in Europe’ 3rd edition (Oxford University
Press, Oxford 2016) paragraphs 4.263–4.292.
7
For an instrumental introduction to the topic of constitutional rights theory
in respect of constitutional objectives: Ronald Dworkin ‘Taking Rights Seriously’
(Harvard University Press, Cambridge 1977) 24 (hereinafter: Dworkin); Robert
Alexy ‘A Theory of Constitutional Rights’ (Oxford University Press, 2004) 44–7
(hereinafter: Alexy); Hesse paragraph 72.
3
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shale gas regulation with fundamental rights has been discussed in various
other places, inter alia, by scientific studies,8 scholarly writings9 and a
recent French court ruling.10 The author feels that the importance of state
objectives for energy regulation, by contrast, received too little attention
in the past.
Despite these challenges there are some further upsides and advantages
of the trias. To start with, it is a rather clear and stringent approach to
law-making which, nonetheless, encompasses a considerable amount of
flexibility. As such it might be used by various groups and people. The
most obvious addressees are decision-makers involved in the regulation of
new energy technologies. However, the trias methodology can also be used
by lawyers, NGOs and the industry to check whether or not the legislator
put into place a legal framework that is coherent and takes all relevant
interests into account.
Furthermore, the proposed trias sits well with at least two parts of the
energy ‘trilemma’.11 By way of a reminder: energy policy-makers in all
countries aim to achieve the same three objectives which are called the
energy ‘trilemma’:12 maximizing supply security, minimizing environmental impacts and providing equitable access to energy.13
For instance SRU Faulstich 39/40.
Edyta Materka ‘End of Transition? Expropriation, Resource Nationalism,
Fuzzy Research, and Corruption of Environmental Institutions in the Making of
the Shale Gas Revolution in Northern Poland’ (2011) Vol 19 Issue 3 Journal of
Contemporary Central and Eastern Europe 599 et sqq.
10
French Constitutional Court ‘Decision no. 2013-346 QPC of 11 October
2013’ (n° 2013-346 QPC Société Schuepbach Energy LLC [Interdiction de la
fracturation hydraulique pour l’exploration et l’exploitation des hydrocarbures –
Abrogation des permis de recherches]) available at: http://www.conseil-constitution
nel . fr / conseil - constitutionnel / english / priority - preliminary - rulings - on - the - issue - of constitutionality - qpc - / sample - of - decisions - qpc / 2013 / decision - no - 2013 - 346 - qpc of-11-october-2013.138596.html [accessed 8 Nov 2013] (hereinafter: French Constitutional Court).
11
World Energy Council ‘World Energy Trilemma’ available at: https://
www.worldenergy.org/work-programme/strategic-insight/assessment-of-energyclimate-change-policy/ [accessed 22 September 2016] (hereinafter: World Energy
Council); Cristelle Maurin and Vlado Vivoda ‘Shale Gas and the Energy Policy
“Trilemma” in Tina Hunter (ed.) ‘Handbook of Shale Gas Law and Policy’
(Intersentia, Cambridge 2016) 369–81 (hereinafter: Maurin/Vivoda); Raphael
J Heffron, ‘Energy Law: an Introduction’ (Springer International, Cham 2015)
3–5; Raphael J Heffron, Darren McCauley and Benjamin K Sovacool ‘Resolving
society’s energy trilemma through the Energy Justice Metric’ (2015) 87 Energy
Policy 168.
12
Maurin/Vivoda 369.
13
World Energy Council.
 8
 9
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Conclusions265
The relationship between energy security and environmental protection
in particular is being cared for under the proposed trias. At the first level
of the trias, both energy and environmental interests can be represented
in an even manner. Via their translation into law principles at the second
level of the trias (in the shale gas context predominantly environmental
law principles), energy and environmental interests can both impact upon
emerging legislation.
With regard to the third aspect of the ‘trilemma’, equitable access to
energy, this relationship is not so clear. However, it could be argued that
the competition between energy security and environmental protection
will often be a predominant aspect of the regulation of all new energy
technologies. As the trias is aiming at reconciliation of both interests it
will frequently lead to cautious, but permissive regulation. By allowing a
certain new energy technology to advance, synergies that drive down costs
will appear. Lower costs, in turn, can result in more equitable access to
energy.
To sum up, the application of the trias to the regulation of new energy
technologies delivers a set of concrete measures for energy regulation.
Every single one of these concrete measures should reflect the balance
between the overarching constitutional objectives at play. Ideally, they
result in a coherent regulatory framework, when put together. A German
proverb, ‘Das Große spiegelt sich im Kleinen’ (the whole is a reflection of
its parts), best sums up this magic of the trias.
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