According to shale-gas-information-platform.org, the German Federal Environment Ministry and the Federal Ministry of Economics have agreed on key principles in the regulation of hydraulic fracturing – a technique used in shale gas exploration. These are very stringent principles which, if applied, would in practice block shale gas exploration in Germany in a foreseeable future. The planned legislative package is based on the principles of health and drinking water principles which override any other aspects of oil and gas exploration and production.
The draft document contain the following proposed principles:
- fracturing projects to extract gas from shale formations above 3,000 metres is banned. Science-backed tests to investigate impacts the environment and the substrate, on the other hand, may be performed if the fracking fluid does not endanger the groundwater. The appropriateness of the legal ban will be reviewed in 2021 based on a federal government report about the state of science and technology with specific focus on fracturing technology,
- fracturing for tight gas (conventional fracturing) will continue to be allowed in principle. Such projects have been carried out in Germany since the 1960's. Currently and under existing environmental laws, such projects do not present a danger to health and to drinking water. Nonetheless, additional regulations are to be introduced, for example not allowing the fracking fluid to be classified higher than German water hazard class 1 (WGK 1 = slightly hazardous to water),
- any kind of fracturing will be prohibited in water protection areas, mineral spring protection areas, catchment areas of reservoirs and lakes that are a direct source of drinking water. These regulations are intended to eliminate any risk to public drinking water supply,
- fracturing will be strictly prohibited in nature conservation areas and Natura 2000 network areas,
- the power to issue ordinances regarding a public register of substances will be introduced,
- the following strict regulations apply to all fracturing projects that may be carried out under these conditions:
- the burden of proof regarding possible subsidence or other environmental damage due to fracturing or deep drilling must be imposed on the companies,
- comprehensive environmental impact assessments must be performed,
- in the catchment areas of public water supply points or direct use in foods (such as mineral water and beer) damage to the groundwater must be ruled out,
- a comprehensive initial state report must be drawn up,
- the identity of all substances and expected quantities used must be disclosed to the public,
- the groundwater and surface water shall be monitored in fracturing areas,
- backflows and drill hole integrity shall be strictly supervised.
In addition, these strict regulations will apply to the storage of fluids and flowback water. The regulations are to be updated considering the current state of science and available experience.
The federal states have further regulatory options as part of their regional development plans.
If adopted, the document will require further changes in the German law, in particular an amendment to the water resources act and to the regulation on environmental impact assessment (EIA) for the mining industry. To do this, the ministries will shortly start the interdepartmental coordination process and hold a hearing of the federal states and associations. The regulations are to be adopted by the cabinet after the summer break.
On reviewing these draft regulations that in practice impose a ban on shale gas exploration a fundamental question arises: how environmental impact from hydraulic fracturing is to be assessed in the absence of any empirical evidence.