On 24 June 2014, the Spanish Constitutional Court issued judgment 106/2014 in which it found that Law 1/2013 of the Parliament of Cantabria, of 15 April, which prohibited hydraulic fracturing for the exploration and extraction of unconventional gas in the territory of Cantabria ("Law 1/2013") was unconstitutional and therefore null and void. Although agreeing with the Court's decision, three magistrates issued a private response to the judgment, in which they explain that the approach taken in relation to the legal merits of the judgment ought to have been different.  

1. Law 1/2013 and the Spanish Hydrocarbons Sector Act

Law 1/2013 prohibits the use of hydraulic fracturing to explore and extract unconventional gas in the Autonomous Region of Cantabria, ordering the authorities and public officers in Cantabria to take steps to halt any activities that contravene the prohibition and to restore the situation to how it was before the prohibition took effect.

Law 1/2013 applies to all in force and pending permits and other titles as well as to applications filed since 26 April 2013.

On a national level, Spanish Hydrocarbons Sector Act 34/1998, of 7 October (the "Spanish Hydrocarbons Sector Act")1 allows the use of hydraulic fracturing to explore and extract unconventional gas. The Spanish Hydrocarbons Sector Act – the provisions of which in relation to the research, exploration and extraction of underground hydrocarbons deposits are applicable generally – permits the use of hydraulic fracturing albeit subject to an environmental impact assessment according to European Union recommendations.

2. The unconstitutionality appeal

The Spanish Government lodged an unconstitutionality appeal against Law 1/2013 on the basis that it violated state powers in the matter and exceeded the scope of the region's powers.

Among other things, according to the appeal, Law 1/2013 violates the powers of the Spanish State as provided in articles 149.1.13 (terms and coordination of the general planning of the economy) and 149.1.25 (basis for provisions on mining and energy) of the Spanish Constitution, which prevail over the powers of the autonomous regions as evoked by Law 1/2013.

The Attorney-Secretary General of the Cantabrian Parliament appeared in the proceedings on behalf of the region and requested the suspension of the proceedings on the basis that Law 1/2013 had been approved pursuant to the powers held by Cantabria to regulate its territory, environment, healthcare, industry and mining and energy policy.

While the response to the appeal did not question the Spanish State's power over mining and energy policy and the economy and to regulate hydraulic fracturing in general, it argued that state and regional authority coexist on the matter, overlapping in the region under different provisions with different legal purposes. As a result, each one should accommodate the other and the State's powers cannot render the Region's powers in this matter devoid of content (the Regional Government of Cantabria understood that authorising or prohibiting the practice of hydraulic fracturing cannot be imposed directly nor is it a necessary consequence of the country's subordination to the general interest).

3. The judgment of the Spanish Constitutional Court

In its analysis, the Spanish Constitutional Court indicated that this case amounted to a conflict of jurisdiction, arguing that although mining and gas resources are linked to other issues such as the environment, the prevailing authority is linked to energy. As such, the State has exclusive powers to establish regulations governing mining and energy, whereas the autonomous regions, such as Cantabria, have powers to develop and enforce legislation, albeit within the framework of the basic legislation enacted by the State and in the terms that it has established.

Therefore, the Spanish Constitutional Court found that the fundamental factor in resolving the dispute would be to determine whether the legal regime governing hydraulic fracturing established under State legislation is basic from a formal and material standpoint in accordance with Spanish legal precedent. If so, Law 1/2013 would only be constitutional if it proved compatible with the basic legislation of the State.

In general terms, the Court understood that the uniform criteria set by the State in relation to the techniques that may be used in the exploration, research and exploitation of hydrocarbons constitutes basic regulation in a material sense in that it prevents potential imbalances that could result in criteria being set unilaterally by the autonomous regions; it is also basic in a formal sense in that it is approved in the form of a law (Act 17/2013, of 29 October, the second additional provision of which modified the Spanish Hydrocarbons Act), which expressly gives it that nature. In addition, the judgment of the Spanish Constitutional Court points out that, although Act 17/2013, of 29 October, is subsequent to the challenged regulation, this does not prevent it from being the "applicable constitutional provision".

Once it had been established that hydraulic fracturing is permitted by material and basic legislation, on the basis of its aim and purpose, the Court concluded that prohibiting the use of hydraulic fracturing throughout the territory of Cantabria as established by the challenged Law 1/2013 was not compliant with the provisions of the Spanish Hydrocarbons Act and cannot qualify as a rule passed by the regional government of Cantabria to protect the environment or regulate healthcare or its territory within the scope of its powers to develop and implement the State's basic legislation on energy.

The Spanish Constitutional Court therefore decreed that Law 1/2013 is incompatible with the basic legislation of the Spanish State and is therefore unconstitutional and null and void.

Finally, and as mentioned at the outset, three magistrates have given their private response to the judgment. Although they agree with the Court's decision, they understand that the approach to the dispute and how it was dealt with in the judgment ought to have been different.