New Technologies and Shale Gas: Two Sides of the Same Coin? Lessons Learned from the Regulation of Carbon Capture and Storage (CCS) and Nanotechnology

Summary

ABSTRACT

The regulation of ‘new’ technologies in the European Union (EU) has come to the attention of European law and policymakers, including the specific challenges associated with the case of unconventional gas extraction in the EU. Shale gas puts to test not only the regulatory competences of the Union institutions but also the overall regulatory and policymaking approach taken towards new and risk technologies. This chapter will look at how Carbon Capture and Storage (CCS) and nanotechnology have been regulated in the past and establishes lessons for the case of shale gas.

INTRODUCTION

The technology of shale gas hydraulic fracturing is perceived to be a new or emerging technology; whether this is really the case is debatable. Not under debate is that shale gas in the EU is characterised by public opposition and environmental concerns on the one hand and economic development opportunities on the other. It has been subject to a controversial debate among the European institutions, the Member States, civil society and non-governmental environmental organisations for the last four years. Aft er considerable back-andforth in the institutions, a European-wide stakeholder consultation, moratoria and exploratory drillings in the Member States and several scientific studies, the Commission has finally adopted minimum principles for the exploration and production of hydrocarbons. With the Recommendation, the European Union (EU) institutions, contrary to what has been asked for by many nongovernmental organisations, politicians, legal experts and citizen initiatives, did not adopt a legally binding (proposal for a) Directive but decided to opt for minimum principles for shale gas activities in non-binding form.

Within the last two decades, several ‘new’ technologies have been emerging in the EU's energy and environmental area. Among these were the Carbon Capture and Storage (CCS) technology, which aims at, as its name suggests, capturing CO 2 from large point sources (power plants) and transporting it to a storage site to depose or store the latter in underground geological formations, the nanotechnology which manipulates or fine-tunes materials at atomic, molecular and macromolecular scales and most recently the shale gas hydraulic fracturing technology to extract gas from deep ground shale formations. While all these technologies were – and to some extent still are – perceived to be new, the regulatory approaches to these differ.