The Commission to the European Parliament and the Council (the “Commission”) has recently reviewed Recommendation 2014/70/EU, adopted by the Commission in 2014, which looked at exploration and production of hydrocarbons using high-volume hydraulic fracturing.
The review looked at the effectiveness of:
- preventing, managing and reducing environmental impacts and risks;
- providing competent authorities and operators with legal certainty and predictability;
- responding to public concerns; and
- taking account of technical progress and of the use of techniques other than high-volume hydraulic fracturing.
The review identified that approaches by Member States have been inconsistent, for example, the UK is now completing strategic environment assessments accounting for the risks of hydraulic fracturing before granting new licences, whereas other Member States still provide licences without such an assessment. England requires well integrity tests to be reviewed independently but other Member States require no such scrutiny.
Legal certainty and predictability also varies from State to State. The Water Framework Directive prohibits the discharge of pollutants directly into groundwater but has been interpreted differently by Member States in relation to whether hydraulic fracturing is caught. For the Extractive Waste Directive, Member States consistently considered drilling cuttings and muds as extractive waste but implemented the Directive differently for surface fluids and residual fluids remaining underground.
Communication and responding to public concerns also shows a divergence of approach. For example, Romania and the UK publish environmental permits, while permit conditions are not publicly available in Germany and Lithuania.
The Commission continues to encourage Member States to adopt the Recommendation when using hydraulic fracturing, but without a legal obligation it will continue to be open to Member States to adopt which parts of the Recommendation they wish, or to adopt none at all.
The Commission intends to reassess the effectiveness of the approach taken, at least every three years, and going forward plans to focus on:
- increasing transparency and monitoring;
- fostering the correct and uniform application of relevant provisions across Member
- addressing the environmental impacts and risks of hydrocarbon exploration and
- extraction; and
- filling research gaps on health impacts and risks of hydrocarbon extraction.
During the course of 2017 and 2018, two reference documents relevant for high-volume hydraulic fracturing relating to the management of waste from extractive industries and waste treatment will become available. A summary of best available techniques for the hydrocarbons sector will follow in 2018.
As highlighted above, the UK has made some moves to be compliant with the Recommendation, showing that attitudes towards hydraulic fracturing are changing.
Co-authored by Stephanie Hawes, trainee solicitor.