Consultation on Proposed German Fracking Legislation – Federal States and Associations Have Until 23 January to Comment

Published on January 14, 2015 in Conventional, Environmental Politics, Gas, Legislation and Oil. 2 Comments Tags: , .

On 19 December 2014 the government presented a legislative package to regulate fracking. It has been sent out to the federal states (Länder) and trade sector associations for review (so-called Länder- und Verbändeanhörung). Comments are due by 23 January 2015.

1. General Information

The proposal comprises a bill amending  the Federal Water Resources Act (WHG) and the Federal Nature Conservation Act (BNatSchG), a bill extending liability for subsidence damage pursuant to the Federal Mining Law to borehole drilling and caverns and an ordinance introducing environmental impact assessments and concerning mining law requirements for the use of the fracking technology and deep drilling.

The bills are based on the key points for fracking legislation presented by Environment Minister Barbara Hendricks and Energy Minister Sigmar Gabriel in summer 2014 and the coalition agreement of the ruling Conservative/Social Democrat coalition. The protection of health and drinking water have the highest priority, the ministries said. Therefore the legislative proposals aim at tightening the existing provisions in the mining and water laws. The proposals are much stricter than the latest EU communication on the matter, the ministries pointed out. At the same time the government did not want to prohibit the fracking technology forever, but wanted to carefully monitor the effects on the environment and the underground, the Environment Ministry said, adding that a total ban of fracking would be problematic given other risk-prone activities in view of the constitutional prohibition of exclusiveness (Übermaßverbots).

2. Bill Amending the Federal Water Resources Act (WHG) and the Federal Nature Conservation Act (BNatSchG)

Above 3,000 metres unconventionel fracking with the aim to extract natural gas from shale formations and coal seams (Schiefer- und Kohlflözgestein) shall be prohibited in principle by the Federal Water Resources Act (WHG). To gain experience about the effects on nature and the underground, scientificly accompanied experimental testing shall be possible, provided that the fracking liquid is not harmful for water. As of 2018 an independent expert committee shall report annually to the authorities whether the effects of testing are harmless or not.

Requirements for conventional fracking, i.e. for the production from natural gas from tight gas formations (below 3,000 metres in sandstone and carbonate rock layers), will be tightened (this kind of fracking has been carried out for the last sixty years in about 320 cases in Germany). The new requirements shall apply to the extraction of natural gas, crude oil and geothermal energy alike. Fracking shall be prohibited in sensitive areas like water protection and medical well areas as well as lakes and dams that serve drinking water production. The federal states are given the right to take further precautions by prohibiting fracking near sensitive water extraction sites. In national parks and nature reserve areas it shall be forbidden to erect installations related to the fracking technology. The competent mining law authorities have to reach an agreement with the water authorities when issuing fracking permits.

3. Bill Extending Liability for Subsidence Damage Pursuant to the Federal Mining Law to Borehole Drilling and Caverns

With the amendment of the Federal Mining Law (BBergG) and an accompanying ordinance called “Einwirkungsbereichs-Bergverordnung” liability for mining damages (Bergschäden) including the presumption laid down in Section 120 BBergG shall be extended to caverns and borehole drilling, shifting the burden of proof so that the entrepreneur has to prove he did everything right.

 4. Ordinance Introducing Environmental Impact Assessments and Concerning Mining Law Requirements for the Use of the Fracking Technology and Deep Drilling

The Ordinance on Environmental Impact Assessments for Mining Project (UVP-V Bergbau) shall be supplemented by an obligation to carry out environmental impact assessments for all fracking projects (conventional or non-conventional).

More stringent requirements to protect the integrity of the boreholes, regarding induced seismicity and methane and other emissions are being proposed for the General Federal Mining Law Ordinance (Bergverordnung für alle bergbaulichen Bereiche). Flowback and reservoir water (Lagerstättenwasser) shall be disposed of in the best possible way (state-of-the art).

5. Further information

The fracking technology is a mining technique which creates fractures in rocks and rock formations by injecting a liquid (usually water) mixed with sand and chemicals into cracks in the rock to force them further open, thus making it possible to extract natural gas and oil that lie within rock formations deep beneath the earth’s surface. While this technology lead to a gas boom in the US, environmental concerns, mainly regarding drinking water, have so far prevented to introduce a specific legal regime in Germany (for more information, please see here).

After the deadline for written comments, oral hearings of the Länder and the trade associations will follow in early February. They will be evaluated and a bill presented to the cabinet. Following approval the bill will be presented to Parliament, the ministries say without specifying a date. Rumours in December 2014 said the bill could be presented in Q1 2015, which seems ambitious.

Source: Federal Ministry for Economic Affairs and Energy and Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety

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by Mutthias Leng and Annute Leng

2 Responses to “Consultation on Proposed German Fracking Legislation – Federal States and Associations Have Until 23 January to Comment”

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  • adolfo del castillo
    April 2, 2015 at 20:01

    …we also have to discuss this in Mexico…

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