Environmental Law

18/03/2015

Strengthening wilderness protection in Antarctica

Tourists in Antarctica.

Human activities, especially those of tourism and other non-governmental character, have been increased substantially in Antarctica over the two last decades, both in numbers as well in diversity. Alone in the season of 2013/14, 37,405 tourists visited Antarctica, while in 2003/04 numbers accounted for 27,537 visitors, and in 1993/94 for 6,704 visitors only (IAATO statistics, 2015). In respect of diversity, classical tourism cruise ship became supplemented by such activities as kayaking, scuba diving, helicopter flights and landings, climbing, extended walks and marathons over the years (IAATO statistics, 2009/10). This expansion results in reduction, disappearance, fragmentation or isolation of habitats and natural landscapes, and thus clearly affects Antarctic wilderness adversely. The Protocol on Environmental Protection to the Antarctic Treaty of 1991, which entered into force in 1998, directs Parties to the Protocol to plan and conduct activities so as to limit adverse impacts and to avoid, inter alia, “degradation or substantial risk to, areas of […] wilderness significance” confirming that the protection of wilderness values, among others, must be a “fundamental consideration in the planning and conduct of all activities in the Antarctic Treaty area”. Additionally in 2009, General Principles for tourism in Antarctica were adopted, stating, among others, that “Tourism should not be allowed to contribute to the long-term degradation of the Antarctic environment and its dependent and associated ecosystems, or the intrinsic natural wilderness values of Antarctica”.

Despite these clear legal provisions, the protection of wilderness values in Antarctica has received, however, very little attention at the more concrete policy making in practice. Up to now, Antarctic Treaty Parties are very reluctant to prohibit an activity or to put it under certain restrictions because of the likelihood of negative impacts on Antarctic wilderness. This is mostly because of the difficulty to apply the concept of wilderness protection in regulating human activities in Antarctica. While some Consultative Parties consider the concept as too “subjective” and difficult to quantify, others think of it as a quite powerful argument for prohibiting or strictly regulating permanent facilities for tourism. Moreover, a lack of clear definition, what is understood as “wilderness” and the absence of concrete guidelines for implementation pose additional hurdles.

Against this background, a present research project at the University of Tilburg (Tilburg Law School, Department of European and International Public Law) investigates to what extent the “wilderness concept” can constitute a basis for regulating tourism and other non-governmental activities in Antarctica. In this framework, wilderness is rather defined by its physical characteristics – wideness (in terms of geographical size), an absence of major human infrastructure and settlement, and a relatively biological intactness – instead of relying on the term “wilderness” per se. To study the subject, particular wilderness regulations and management practices in other wilderness areas in the world will be examined, including examples from Lapland, the Northern Region of Finland, from Spitsbergen, a Norwegian archipelago in the Arctic Ocean, as well as from Canada and Alaska, the US. By studying these examples, possible lessons learnt for regulating diversity of tourism activities in Antarctica will be identified in order to improve the factual protection of Antarctic wilderness.

05/03/2015

Unconventional natural gas in South Africa: regulating the nexus between energy security and water security – Aspects of a research proposal

South Africa faces the challenge of meeting the needs of its (still) growing human population, and of doing it in a sustainable way, namely without affecting the ability of future generations to meet their needs. Energy plays a central role in this challenge, both because of its significance to economic development and because of the number interfaces and impacts it has on other critical sustainability issues – such as water security, among others.[1] In its quest for energy security, the South African government has identified unconventional gas (shale gas and coal bed methane) as a potential alternative energy resource.[2]

Coal bed methane is already being extracted in the Waterberg area of South Africa and the country is also looking to extract shale gas from the Karoo area.[3] The development of unconventional gas, however, poses a number of new challenges to existing regulatory regimes worldwide, including South Africa. These challenges are particularly pertinent to water resources.[4] The development of unconventional gas is (like most other fossil and some renewable energy sources) heavily dependent on water access and use.[5] This is mainly due to the extraction method of hydraulic fracturing whereby large amounts of water is mixed with chemical additives and pumped down a horizontal well under high pressure to enable the extraction of the trapped gas.[6] Studies indicate that the use of horizontal wells during a typical hydraulic fracturing process can require up to five times the water used by vertical wells.[7] The withdrawal of large amounts of groundwater can lead to the depletion of aquifers, and the hydraulic fracturing fluids known as flowback water, poses risks to water quality.[8] Issues of water security relating to water quality, quantity and availability are therefore at stake.[9] Because of the interdependence between the energy and water sector, an increase or decrease in one sector (energy or water) will immediately affect the other. South Africa is already struggling to maintain security of both water and energy supply and hence the energy-water nexus is very much related to its goal of achieving energy and water security.[10]

A report by the World Economic Forum highlights the interrelated risks between energy and water security as a security problem.[11] In addition other nexus frameworks include the notion of security as a normative goal complementing or even replacing the notion of sustainability.[12] The “nexus approach” is a new way to frame the interconnected challenges in water and energy governance, including within sustainable development policy goals. What is new about the nexus approach is that it considers multiple sectors as equally important.[13] Common features of existing energy-water nexus frameworks are interdependency between policy sectors, the need for integrated management across sectors and scales, and a focus on promoting security.[14]

While large amounts of water is needed for producing almost all varieties/types of energy – for example, cooling, storage, biofuels, hydropower – it is the process of hydraulic fracturing within unconventional gas development that poses the biggest risk to water quality in South Africa.[15] Concomitantly large amounts of energy are needed for pumping, storing, transporting and treating (for example, desalination) of wastewater – such as wastewater created from the hydraulic fracturing process during unconventional gas development.[16] An increase or decrease in one sector (energy or water) will immediately affect the other – if water is in short supply during droughts it may well lead to energy crises.[17] As per the World Energy Council:[18] “freshwater is required for each step – energy extraction and production, refining and processing, transportation and storage, and electric-power generation itself.” Without water and energy it will neither be possible to satisfy basic human needs nor achieve economic growth.[19] Notably, energy and water security risks depend upon the balance between economic, social and environmental consequences.[20] The cost of attaining energy and water security could be economic (eg) building new or replacing old energy and water infrastructure), social (eg closing energy and water allocations to restrict demand) or environmental (the pollution and deterioration of freshwater systems to reduce the risk of water shortage etc).[21]

While the drivers of energy and water security risk include socio-economic factors (such as population growth and economic activity) and natural phenomena (such as natural disaster, climate change impacts) it is the policies of each sector that are the biggest cause of risk.[22] This is the result of spill over effects – for example, the creation of incentives to meet energy security objectives results in the distortion of the demand for water.[23] Managing energy and water security risks necessitates the managing of trade-offs between separate or sector policy instruments.[24] Uncoordinated policy aimed at security in one area may result in less security in another: for example, less water security may be at the cost of greater energy security through unconventional gas development. Law as a social regulatory instrument is used to change human behaviour – and to achieve certain outcomes. Although a number of instruments within any regulatory framework could be used to meet energy and water security target(s) it is direct regulatory instruments such as laws or regulations stipulating, for example, quality standards, bans on certain products or practices, requirements for the application of best available techniques, obligations to obtain authorisations that are representing the bulk of instruments used.[25]

The nexus between energy and water related security objectives are not routinely addressed nor fully understood.[26] While the existence of the interdependence between energy and water is acknowledged in energy and water security terms[27] it is not certain whether the nexus (between energy and water security) is reflected in the South African regulatory framework generally, and specifically with regard to the development of unconventional gas. Regulatory frameworks that do not reflect the nexus between energy and water security, could, instead of ensuring energy and water security, achieve the opposite, namely energy and water insecurity.[28] This is applicable to regulatory regimes worldwide, including that of South Africa. Therefore it may be necessary to determine how other countries regulate and facilitate unconventional gas development and production within an energy and water security nexus.

A focus on the environmental impact(s) that pollution and depletion of water resources from the process of hydraulic fracturing within unconventional gas development may have on energy security (being an essential element of the energy/water security nexus) may provide a reference point for a comparative study on how other countries manage the energy and water security nexus in their respective regulatory frameworks.