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Conclusions

A New Framework for Energy Regulation

Ruven Fleming

Chapter 7 is the third part of the book and includes its conclusions. These are clustered around two main results. The first is that cautious, but permissive shale gas regulation complies best with the relevant (quasi-) constitutional objectives. Strictly prohibitive shale gas regulation, by contrast, is hard to reconcile with constitutional law pre-requisites. The second result is the new trias methodology. Its advantages and setbacks are discussed in these conclusions which show that the trias transcends the context of shale gas extraction. It can be used to develop regulatory regimes throughout the extractive industry and in the renewables sector. It could also facilitate the elaboration of a regulatory framework for non-producing parts of the energy sector. Since energy law is a very young discipline that has to keep up with rapid technological developments, a consistent methodology to develop regulations for all sorts of new and emerging energy technologies is in increasing demand.

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Objectives and shale gas

A New Framework for Energy Regulation

Ruven Fleming

Chapter 4 starts the discussion of the trias of objectives, principles and rules by focusing on its first level, (quasi-) constitutional objectives. The chapter highlights that several constitutional objectives might conflict with each other, when regulating an energy activity like shale gas extraction. The legal nature of environmental protection and energy security as (quasi-) constitutional objectives is established by examination of EU quasi-constitutional documents and the constitutions of Germany and France. Afterwards, the chapter focuses on the competition between the two (quasi-) constitutional objectives of environmental protection and energy security in the case of shale gas extraction. Constitutional law theory provides a mechanism called practical concordance to reconcile competing constitutional objectives. The chapter concludes that this mechanism can be used in various jurisdictions. The mechanism could help the regulator in achieving legally sound energy regulation.

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Principles and shale gas

A New Framework for Energy Regulation

Ruven Fleming

Chapter 5 further follows the structure of the trias and investigates its second level, legal principles. It establishes five (environmental) law principles as most relevant to shale gas extraction, namely the precautionary/prevention principle, the polluter pays principle and the principles of sustainable development, public participation and rectification at source. The chapter highlights how each of these principles can be translated into a concrete feature of cautious, but permissive shale gas regulation.

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Rules and shale gas

A New Framework for Energy Regulation

Ruven Fleming

Chapter 6 addresses the third level of the trias, concrete rules. It draws analogies with the regulation of another energy technology, Carbon Capture and Storage (hereinafter: CCS). CCS has certain similarities to shale gas extraction in terms of the technology used and its potential threats. The EU CCS Directive, as well as national CCS regulations in France, Germany and the UK, are scrutinized to see how particular problems have been tackled in CCS regulation. The chapter concludes that remaining gaps in the regulatory framework for shale gas extraction could be closed by mutatis mutandis application of some of the mechanisms used in French, German and UK CCS regulation.

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Shale gas and EU law

A New Framework for Energy Regulation

Ruven Fleming

Chapter 2 investigates the legal framework that applies to shale gas extraction. It focuses on the EU level and exposes a number of gaps and uncertainties in the EU´s primary and secondary law framework. This is followed by a critical assessment of the European Commission´s recent efforts to close these gaps, using a shale gas-specific recommendation and guiding documents. The chapter concludes that these EU measures are not legally binding, so that the development of new, shale gas specific legislation is largely left to the discretion of EU Member States.

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Shale gas and national law

A New Framework for Energy Regulation

Ruven Fleming

Chapter 3 provides an overview of shale gas regulation in Member States of the European Union. It takes a closer look at three jurisdictions, France, Germany and the UK. They are representing the three different approaches to shale gas regulation that are currently dominating in Europe _ strictly prohibitive, mainly prohibitive and cautious but permissive regulation. The chapter discusses advantages and disadvantages of these approaches. It shows that strictly prohibitive shale gas regulation is not the most commendable option for governing this activity. Instead, cautious, but permissive regulation would be better suited to govern shale gas extraction in a sound way.

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Ruven Fleming

Chapter 1 introduces the two concepts of environmental protection and energy security. It assesses the main potential environmental issues as well as the major possible energy security benefits that are associated with shale gas extraction. The chapter starts by explaining what shale gas is, how it can be extracted and which terminology the industry uses. The chapter (and, indeed, the book) focuses on shale gas extraction because shale gas has the biggest potential of all `unconventionals´ to become commercially viable in the middle to long-term in Europe.

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Shale Gas, the Environment and Energy Security

A New Framework for Energy Regulation

Ruven Fleming

This pioneering and in-depth study into the regulation of shale gas extraction examines how changes in the constitutional set-ups of EU Member States over the last 25 years have substantially altered the legal leverage of environmental protection and energy security as state objectives. As well as offering the first formal assessment of the legality of fracking bans and moratoria, Ruven Fleming further proposes a new methodology for the development of legally sound regulation of new energy technologies in the context of the energy transition.
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Geert Van Calster and Leonie Reins

The EU has established several practical tools to manage European environmental law in practice and implement the objectives established by the individual legislation on the ground. This chapter will present the European environmental management systems, permitting, labelling and public procurement used to apply European environmental law hands-on.

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Geert Van Calster and Leonie Reins

Air pollution has been on the European environmental agenda for several decades. The 2005 Thematic Strategy on air pollution assessed the situation, provided interim objectives and suggested inter alia to promote integration of air pollution and environmental concerns into other policy areas, as well as to modernise legislation and focus on the most serious pollutants. In its 2005 strategy, the Commission promoted the restructuring of existing provisions into a single directive and the introduction of new air quality standards for fine particulate matter, as well as the revision of national emissions ceilings as key to a successful implementation. This chapter discusses the air policy and its changes in the last decade, firstly looking at general legislative tools on air quality, then discussing air emissions and sector specific regulation and harmonisation applicable to air pollution.