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Europe



26/06/2014

Shale gas: Increasing intervention by local authorities

By Jonathan Verschuuren (TLS)

In most countries, unconventional gas production (as is the case with most natural resources) is of national interest. The production of shale gas, tight gas and coal seam gas through hydraulic fracturing is considered an important source of revenue and an important element in the nation’s energy policy. The big national interests at stake with unconventional gas production put local governments under pressure. Local governments usually are concerned with protecting the local environment for the benefit of present and future generations. Often, these concerns have a legal basis, either in the constitution, in the public trust doctrine, or in domestic legislation in the field of land use and planning and/or environmental protection.

In several shale gas rich countries around the world, we see attempts by local governments to challenge hydraulic fracturing (fracking) using various legal pathways. Examples are popping up everywhere, now almost on a monthly basis. In the US, in December 2013, the Pennsylvania Supreme Court declared an Act that sought to eliminate zoning authority from municipalities over shale gas extraction, unconstitutional because it infringes the municipalities’ duty under the state’s constitution (Environmental Rights Amendment), to act as a trustee of natural resources. In 2014, the shale gas richest province in the south of the Netherlands and several of the municipalities in this province, banned exploration and production of shale gas altogether, using various legal instruments in the field of environmental law and land use planning law.

Although local authorities do not have competences in the field of mining law, they do have responsibilities and associated powers under planning law. Local zoning and planning is always done at the local level, and hence, municipal authorities may set restrictions or conditions to any new activity so as to fit in this activity within the existing land use. These powers can be very far-reaching, even rendering the use of a production permission entirely impossible. Should, for instance, a local zoning plan prohibit mining activities at a certain location, or prohibit the issuing of a construction license to mining constructions on that location, then no mining can take place there, even after the competent authority for the mining operations granted all necessary permits.

Both in the Netherlands and the United States, however, central governments have legislated in order to have the regulatory tools to intervene in local decision-making when needed to ascertain that mining activities go ahead. In the case of shale gas, local governments and local communities increasingly pursue legal pathways to block or at least hinder shale gas operations. In the example of Pennsylvania, the state authorities used their legislative power to overrule local decision-making. Courts, however, seem to be willing to limit or even block such intervention because it infringes on the constitutional right to a clean environment and the public trust doctrine, also laid down in the constitution, according to which governments have to protect the environment for present and future generations.

In the Netherlands, instruments to overrule local decision-making in the field of environmental protection and spatial planning are in place, but have not been applied yet. The debate on the constitutionality of such intervention has not arisen yet. Should intervention take place, it is likely to be argued that this is unconstitutional, not just because of the alleged infringement of the right to a healthy environment (somewhat similar to Pennsylvania, laid down in the Dutch constitution in the form of a basic duty for the government), but also because of the principle of decentralized governance that forms the basis of the Dutch public governance system. It remains to be seen whether such reasoning is going to be successful, as the Netherlands does not have constitutional courts, nor the possibility to have legislative acts of the national legislature tested against the constitution. Even without these opportunities, however, it is clear that Parliament will scrutinize any attempt by the Cabinet to overrule local rules and regulations as this will be considered to undermine future collaborations with local authorities on which the central government in almost every policy field depends for the execution of their policies. In a previous attempt in the Netherlands, to impose national decision-making upon an unwilling municipality (the selection of a location for an onshore carbon capture and storage demonstration project), huge public uprising occurred, ultimately leading to the abandonment of the project.

Shale gas in Europe. Image via The Economist.

Shale gas in Europe. Image via The Economist.

In Germany and France, by contrast, public protests, mainly at a local level, have strongly influenced decision-making at the national level, more or less by-passing local governments. This probably is due to the fact that in these countries, local authorities have little power to stop or regulate shale gas exploration and production. Hence, protesters –with much success– aimed at national political institutions rather than at local authorities. In France, opposition was especially fierce because of the lack of public consultation. Both countries imposed a moratorium on the exploration and production of shale gas through hydrofracking with the use of chemicals.

The above brief assessment of the role of local governments in the hydrofracking debate shows that the local level plays an important role indeed. Simply ignoring or legislating local governments and local communities out of the picture will be counterproductive, as the local level has legal and political cards to play out, and, constitutionally, perhaps even has to play out these legal cards to protect the environment for present and future generations. It seems, therefore, that local communities determine the success of unconventional gas development and should be taken seriously by central governments that plan to support hydrofracking. Transparency and meaningful involvement of local communities should be pursued, allowing for any kind of outcome, including the outcome of a moratorium or ban. It can be expected that at the EU level, where legislation is currently being prepared, focus will be on such important procedural issues.

Category: Energy, Europe, Shale gas

14/05/2014

Wolves on Dutch doorstep: European law and the return of a controversial carnivore

By Arie Trouwborst (TLS)

In April 2014 automatic wildlife cameras in two German areas just across the Dutch border caught pictures showing an animal with all the looks of a wolf (Canis lupus). DNA found in wolf-like scat from the area is being analyzed to know for sure. If in future the presence of this or another wolf can be reliably established on the Dutch side of the border this would be quite an event, as the last fully confirmed sighting of a wild wolf in the Netherlands dates back to 1845. The words ‘fully confirmed’ are justified because that animal was shot dead. Whereas wolves used to occupy most of Europe, they gradually disappeared from their former ranges, chiefly because of a lack of human tolerance for their presence. The species hung on in the east of the continent, and in isolated populations in Spain and Italy. In most European countries, wolves remained only in (fairy) tales.

Canis lupus in the Lüneburg Heath wildlife park, Germany (source: Wikimedia, user Quartl)

Canis lupus in the Lüneburg Heath wildlife park, Germany (source: Wikimedia, user Quartl)

But things are changing. Recent decades have seen a steep increase of wolves across Europe, both in terms of their numbers and the places where they occur. For instance, France and Germany – both wolf-less for many years – are now home to swiftly expanding wolf populations. These follow spontaneous re-colonizations in, respectively, Italy and Poland. Wolves travel impressive distances and the establishment of new packs has been steadily progressing westwards. The last few years have even yielded reliable records of the first wolves reappearing in Belgium and Denmark. The scene thus appears set for a natural return of wolves, whether from the German or French population or both, to the Netherlands. This would be a milestone indeed, as Holland is probably the last place on people’s minds when thinking of wolves. Already in 2011, and again in 2013, several tentative wolf sightings occurred in the east of the Netherlands, and in the spring of 2013 a wolf was camera-trapped just across the border in Germany, in the same area where one of this year’s wolf pictures was taken.

All of this is good news from a biodiversity conservation perspective, for at least two reasons. First, most big predator species worldwide are threatened and in decline. Second, large carnivores are of crucial importance for the proper functioning of ecosystems. Both aspects were emphasized in a recent review article on large carnivores in the journal Science. At the same time, the European wolf comeback comes with significant challenges that must be met in order to prolong the success story. In particular, conflict between humans and wolves has been a consistent theme throughout history. Wolves were exterminated for a reason! Such conflicts spring, among other things, from livestock depredation, human safety concerns and competition for the same prey with hunters. The animals tend to stir up controversy particularly when they reappear in regions and countries from which they disappeared long ago, and where people are no longer used, or willing, to live alongside them. Finding examples of such conflicts is easy, as the media tend to be eager to cover them – sometimes a little too eager, it seems. The Netherlands is a case in point as well, as the mere possibility of wolves returning to the country has been giving rise to significant debate in recent years, both in the media and in Parliament.

So why raise all of this in a law blog? To begin with, law played its part in the wolves’ demise. A representative example is the 19th century Dutch hunting act, ‘Jagt- en visscherijwet 1814’, which set a bounty to be collected for every dead wolf: 30 guilders (approximately 500 present day euros) for a female, 25 (~400 euro) for a male, and 15 (~250 euro) for each young wolf. Conversely, legal protection is often mentioned as one of the factors enabling the comeback of wolves since the 1970s, along with land use changes and increases in forest cover and wild prey populations. At the same time, law is of the essence for ensuring that the wolf’s recolonization of its former habitat takes place as smoothly as possible, particularly by minimizing and resolving human-wolf conflicts. Finally, in view of the fact that almost all current European wolf populations extend across more than one country, a particularly prominent role is reserved for international cooperation. Two significant legal instruments in this regard are the 1979 Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention) and the 1992 EU Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive). Both instruments contain important obligations regarding the protection of wolves and their habitat. Moreover, specific guidance for the application of these obligations to wolves and other large carnivores has been developed within the framework of both instruments by a dedicated group of experts called the Large Carnivore Initiative for Europe (LCIE).

Returning to the Netherlands, the Dutch government recently announced it will list the wolf as a strictly protected species under Dutch law, motivating this decision with reference to the Netherlands’ obligations under the Habitats Directive. Other steps undertaken by the Dutch authorities to prepare themselves and society at large for the wolf’s expected comeback include a fact-finding study, opinion poll, assessment of experiences in other countries and workshops involving all stakeholders ranging from conservationists to sheep farmers. The authorities also commissioned a legal study to assess the viability of various policy options regarding the management of wolves should they return to the Dutch landscape, and answer other legal questions raised by this anticipated return. Some examples are the following:

  • What is the (inter)national legal status of wolves returning to the Netherlands?
  • What can be done about wolves preying on livestock?
  • Is a zoning policy of ‘go and no-go areas’ for wolves a legally viable option?
  • At what stage of re-colonization are protected areas to be designated for wolves?
  • What is the position of wolf-dog hybrids and of measures to counter hybridization?
  • What role is reserved for transboundary cooperation?

The whole process culminated in the development of a blueprint for a national Wolf Plan [PDF], which was commissioned by the Ministry of Economic Affairs (the national authority currently dealing with wildlife conservation). The blueprint, which was finalized in October 2013, is the result of a participatory process involving national and provincial governmental bodies, protected area managers, NGOs, livestock farmers’ organizations, hunting associations and academics from various disciplines. The document sets out guidelines regarding information and communication, monitoring and research and the prevention and compensation of damages to livestock. It also includes a discussion of the applicable legislative framework for wolves, including the species’ generic protection through various prohibitions, the designation of protected areas and transboundary cooperation with neighboring states. The recent express designation of the wolf as a strictly protected species under Dutch law was one of the actions recommended in the blueprint, but it remains to be seen to what degree its other components will be transformed into actual government policy. At any rate, a feature that stands out is the proactive manner in which the entire process has been conducted, in the absence thus far of the protagonist species itself. The Dutch experience to date appears to affirm the intuitive notion that it is easiest to reach a level of agreement amongst stakeholders with conflicting views on wolves before the animals themselves arrive on the scene.

As just concisely illustrated, large carnivores like wolves not only constitute one of the hottest topics in the area of European wildlife conservation and management today, but also a rich topic for legal analysis. This post has done little more than introducing the topic and scratching the surface, and Canis lupus and other big predators like bears and lynx may well be revisited in future pieces.

- Arie Trouwborst

Selected further reading:

Tilburg Law School’s Kees Bastmeijer and Arie Trouwborst are the principal authors of the legal study mentioned above, and also assisted in the drafting of the Wolf Plan blueprint. They authored various scientific journal articles on legal issues concerning large carnivore conservation and management. Arie Trouwborst is a member of the Large Carnivore Initiative for Europe.


29/11/2013

Climate change and biodiversity: towards connectivity conservation law in the EU

By Jonathan Verschuuren (TLS)
cover

Many protected areas are badly suited to overcome climate change–induced shifts in species’ geographic ranges. Studies show that protected areas “have not been designed for efficient (or even complete) representation of species” (Hannah et al. 2007). Fixed protected areas alone will not be sufficient to safeguard biodiversity from the impacts of climate change. Hannah et al. show that between 6% and 22% of species in their analysis failed to meet representation targets for future ranges that take into account the impact of climate change, with a further increase expected under more severe climate change scenarios. Connectivity measures, such as the creation of corridors or stepping stones compensate for such losses. This is also reflected in the Millennium Ecosystem Assessment: “[c]orridors and other habitat design aspects to give flexibility to protected areas are effective precautionary strategies. Improved management of habitat corridors and production ecosystems between protected areas will help biodiversity adapt to changing conditions” (MEA 2005). A combination of several measures (enlarging areas, securing robust large areas, securing ecological connections between areas, and establishing real ecological networks) therefore seems to be the best approach to maximize the ability of nature to cope with the pressure of climate change on biodiversity.

The IUCN recently published a two volume publication titled ‘The Legal Aspects of Connectivity Conservation’ (IUCN 2013). Volume 1 gives a broad overview of current insights and understanding of connectivity conservation and explains through which legal mechanisms connectivity conservation can be achieved, taking examples from around the world, and focusing on land use planning law, development control law, voluntary conservation agreements and economic and market-based instruments. Volume 2 has a wealth of case studies of connectivity projects around the world. These projects range from local or regional projects, to nationwide or even continent wide connectivity projects. Examples of these are the nationwide ecological network in the Netherlands, the 3600km long corridor of the Great Eastern Ranges in Australia, the EU’s Natura 2000 network (including domestic projects in France, Germany, Spain, the UK, Finland and Slovakia) and corridors in Brazil, such as the Central Amazon Corridor.

Connectivity conservation and the management of connectivity conservation areas are emerging fields of scientific study and conservation management practice within the broader subject of nature conservation. In the most basic terms, connectivity conservation is a conservation measure in natural areas that are interconnected and in environments that are degraded or fragmented by human impacts and development where the aim is to maintain or restore the integrity of the affected natural ecosystems, linkages between critical habitats for wildlife, and ecological processes important for the goods and services they provide to nature and people. In fragmented ecosystems, wildlife corridors and other natural linkages such as green belts and large wildlife corridors have been common representations of connectivity conservation. The scientific emphasis takes into account connectivity needs across landscapes and seascapes, and in some cases even across continents, where necessary to maintain or restore specific linkages for habitat or species populations, or to maintain or restore important ecosystem processes. Scientific study and conservation practice have made important strides in understanding and applying connectivity conservation across a range of scales and functions.

The overarching conclusion from the research and analyses undertaken for this project as presented in Volume 1 of the report is the need for countries to become increasingly alert to their connectivity conservation needs, undertake connectivity planning, and initiate actions using existing mechanisms and opportunities as much as possible to negotiate and protect critical connectivity areas before they are lost to development. To support this process, a related conclusion is that a wide array of different legal instruments and tools already exist in many legal systems to begin to promote and implement science-based connectivity actions in priority landscapes/seascapes and local sites. Countries should start with these tools, using the best scientific information available, before development pressures make conservation or restoration no longer economically or political feasible. As experience is gained working with communities and landholders, and managing for connectivity conservation, a foundation of knowledge and support can be built for amending or enacting new legislation, as needed, to strengthen and integrate connectivity conservation authority into legal frameworks. Opportunities to use existing law and policy instruments should not be delayed by those efforts. It also is important to recognize that the law, by its nature and function, aims for clarity, certainty, and clearly defined processes and criteria for achieving specific goals and objectives. These features are essential for societies to have orderly interactions and effective future planning. In contrast, connectivity conservation is a tool for adapting to change due to dynamic factors related to current and new threats to protected areas, biodiversity and ecosystems, and to global change including climate change. Bringing the law and connectivity together requires that the law incorporate some flexibility in order for management to be able to respond to changing connectivity conservation needs and that connectivity conservation actions be based on the best available scientific information (in both the natural and social sciences) so that management actions and commitments are well founded for the foreseeable future. Law has several mechanisms that can provide flexibility. These include requirements for periodic review and revision of management plans, regular monitoring based on ecological criteria, the development of performance measures to help assess and evaluate whether management plans are achieving their intended purposes, and decision-making mechanisms to monitor and incorporate new scientific information relevant for connectivity conservation management as it becomes available.

For Europe, it is clear that Natura 2000 alone does not constitute a coherent network in the sense of truly interconnected protected areas throughout an entire country or throughout the whole of the EU. Additional, domestic instruments, mainly in the field of nature conservation law and spatial planning law are needed to create connectivity between the Natura 2000 sites. Even in case domestic instruments are applied, in addition to the EU’s Natura 2000 legal framework, to achieve connectivity, we still cannot be certain that the network remains just an ecological network on paper. Much depends on the actual application of all the laws and policies on activities within the areas that constitute the network. Farmers and other local landowners have to refrain from harmful activities, and/or have to actively manage the area to support the area’s connectivity function. Financial incentives are needed to make this happen. Fortunately, we can observe that EU Member States increasingly do apply such domestic instruments in order to achieve connectivity. Domestic policies in various Member States, such as the Netherlands and the UK, provide for additional connectivity instruments that add to the Natura 2000 network. Domestic subsidy schemes across the EU exist as well, and the EU’s LIFE+ scheme provide important financial incentives for connectivity. This, however, is largely due to national policy initiatives, and based upon national law instruments. At the EU level, there seems to be a slow movement towards accepting that connectivity measures are legally required by the current texts of the Birds and Habitats Directive. The Alto Sil judgment of the EU Court of Justice (Case C-404/09 European Commission v Spain), as well as a range of policy documents go into that direction. In my view, however, there is much to say for more explicit regulating connectivity (and restoration) requirements in binding legal instruments, such as the EU Habitats Directive. There is a fear that altering the current text of the Habitats Directive will open Pandora’s Box, leading to a decline of the impact of this Directive on nature conservation in Europe. Fear, however, generally is a bad advisor. The Habitats Directive is getting outdated, caught up by climate change and by large scale landscape fragmentation in Europe.


06/09/2013

Shale gas debate finally kicks off in the Netherlands

By Jonathan Verschuuren (TLS)

Fifteen years after the first economical shale fracture in the United States, the debate on shale gas extraction has finally reached full speed after the publication, in August 2013, of a research report by three consultancy firms lead by Witteveen + Bos, on the potential risks and consequences of shale gas and coal seam gas extraction in the Netherlands. In the report for the Dutch government, the researchers reviewed the existing literature on the impact of shale gas extraction and “translated” the findings to the Dutch situation. Most of the information on the impact of shale gas extraction is from experiences in the US and the UK. The comprehensive report focuses on all possible consequences, such as water use, underground impact on the soil, methane emissions and the impact on the carbon footprint, pollution of the environment (including groundwater) by fracturing fluid and flowback water, noise and light pollution from installations, flaring, safety issues, earthquakes and subsidence. Generally, the report concludes that most if not all of these risks can be managed by setting strict permit conditions. Unlike in the US, the Dutch shale gas reserves are at great depth, well below ground water aquifers, and, also unlike in the US, in the Netherlands there already exists an extensive regulatory system that sets strict rules. Flowback water, for instance, cannot be stored in open basins, but has to be stored in closed tanks that are stored on watertight floors as a consequence of EU waste water law. Although the report looks sufficiently overarching and detailed, it also gained criticism. It was for instance criticized for its selected use of sources. Professor Jan Rotmans, in the Dutch newspaper Trouw (29 August 2013) stated that the report heavily relied on data coming from the industry (75% of the data used is from industry related sources), rather than on data from more independent sources. In addition, the lack of data is usually interpreted in a ‘positive’ way, i.e., concluding that a certain impact is not problematic, while in fact we do not know because of lacking data. Applying the precautionary principle would have led to the opposite conclusion in such a situation! Unfortunately, the Minister decided to grant the research project to a consortium of three private companies, one of which is Fugro, which states on its website: ‘Fugro’s activities (…) are primarily aimed at the: oil and gas industry, construction industry, mining sector’. On such a sensitive issue, it would have been better for the Minister to grant the project to a consortium of universities rather than of private businesses with ties to the shale gas industry, or at least have a university team lead the consortium. Another problematic feature of the report is that it does not focus on specific local conditions. This is a bit strange because a) the government selected the three locations on which exploratory drillings are to take place long ago (2010), and b) the report argues that local zoning requirements are needed to protect specific sites, such as Natura 2000 sites (protected areas under the EU’s nature conservation laws) and groundwater protection areas (in use for drinking water supply), and probably also (although not specifically mentioned in the report) other types of protected areas, such as water storage areas, silence areas, and national parks. The report also suggests to protect buffer zones around such protected areas, without detailing how big these have to be. Given the fact that populated areas probably have to be avoided as well, it would have been interesting to test what drilling options remain. By leaving a lot of issues to the local level, authorities resisting shale gas extraction have an immense opportunity to block drilling, even in case the national authorities granted concessions. We already see developments going into this direction: a majority of politicians of the province of Noord-Brabant in which two of the designated exploration locations are located, have announced to prohibit shale gas exploration in their province in the Provincial Environment Ordinance. It is clear from the report that shale gas extraction is only acceptable under strict legal conditions. The report does, therefore, constantly refer to laws and regulations that are or should be in place to minimize the negative impact of fracking. A full assessment of current laws is lacking, though. Current Dutch mining legislation does not explicitly deal with fracking, simply because it predates the large scale use of this technology. An earlier EU investigation of existing environmental laws, by a consortium that, interestingly enough, also included Witteveen + Bos, found many gaps and shortcomings. It is unlikely that all of these do not exist in the Netherlands. The report, furthermore, relies on law in the books rather than on the law in action. Although there are supervising authorities, both on the implementation of mining legislation and environmental legislation, much depends on the way the various authorities involved deal with their decision-making and monitoring and enforcement powers. The debate will not be over for a while. This is a good thing. Before investing billions of euros into new infrastructure to extract fossil energy resources, it is worthwhile to rethink whether such investments perhaps are more appropriate in the dwindling Dutch renewable energy sector. According to the 2013 Renewable Energy Progress Report, the Netherlands is on a snail ride, moving from a 2,4% share in 2005, to a 3,8 share of renewable energy sources in the total energy consumption in 2010. Compare this to some of nearby countries, such as Germany (11%), France (13.5%), and Denmark (22.2%)… In 2012, the share went up to 4,7%. In this pace, it is highly unlikely that the Netherlands will meet its target for 2020 of 16%… Investing in shale gas extraction will not speed up this process.


02/06/2011

Coastal adaptation

By Jonathan Verschuuren (TLS)

Around the world, coastal defenses are an integral part of climate policy. The risk of flooding is increasing due to a number of factors – the rising sea level (which in the Netherlands is being exacerbated by subsidence), the increasing intensity of storms and rising water levels in rivers. The Dutch parliament is currently looking at proposals for a new Delta Law, which is designed to address these increasing dangers. This law, as well as the legislation that already exists, is among the most advanced in the world. But of course, that is because half of our country is susceptible to flooding, either from the sea or from rivers.

Unlike in the Netherlands, most of the coastal areas around the cities of southern and eastern Australia are in the hands of private landowners. These ‘ocean view properties’ are spectacular, and extremely expensive. That makes it difficult for the government to build coastal defenses. Many interesting legal cases are already underway in this area which will clarify how this aspect of climate law will be put into force in the future. Essentially, the law states that the authorities must create a coastal protection area where they can make provisions for the effects of climate change. This policy will determine whether projects in coastal areas are allowed to go ahead. But what should be done in cases where houses are under threat from the sea?

One of the most famous cases is that of a rich landowner in Byron Bay to the south of Brisbane. The government had decided not to defend a section of the coastal area against the increased risk of erosion, but rather to let nature take its course as a part of a wider plan that involved protecting other, more important areas. The owner of the land decided to take measures to protect the land from erosion himself by renewing the old coastal defenses. The government denied him permission to do this, for the same reason as it had decided not to do so itself. When it looked as if the dispute would be settled in favor of the landowner, the government decided to renew the coastal defenses after all. However, it is clear that this is only a temporary measure until the next storm comes along. There is no prospect of a definitive solution, not least because land owners are opposing the construction of new coastal defenses for the future. After all, this would mean their land would no longer be located directly on the coast, and so it would be worth considerably less…

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