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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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A New Framework for Energy Regulation

Ruven Fleming

This book has been written to prove a point – or rather two points – as will become clear from the introduction. This approach has been inspired by some of the greatest legal writers of the present, past and ancient past – Arie Trouwborst and Nicolas de Sadeleer; Konrad Hesse, Robert Alexy and Ronald Dworkin; Friedrich Carl von Savigny. Their writings on topics as diverse as environmental law, constitutional law and legal theory are among the best and most inspiring out there.

Moreover, this book has been influenced by the waves, the sand and the sea of the city of Aberdeen and the thinking that prevails at its university. Many people I met in Aberdeen contributed to the book and that starts with the fine library staff who were always there to help, with whom I could exchange thoughts and who embraced me with warmth as if I were a member of their extended family. Actually, I became one. The same, of course, goes for all my Aberdonian friends, but I wish to mention three people in particular who provided a helping hand and/or lent their expertise to this project. These are Dr Piti Eiamchamroonlarp, Dr Tanatthep Tianprasit and Ms Alexandra Ungureanu, LLM.

There are two people who stood out in influencing this book, Prof. John Paterson (who is now Vice-Principal for Internationalisation at the University of Aberdeen) and Prof. Anatole Boute (who is now teaching at the Chinese University of Hong Kong). John always maintained an upbeat mood and a positive attitude, was incredibly supportive and backed me in all situations throughout the project. His kind nature as well as his profound knowledge on energy law make him a genuine role-model for students. Anatole took a more critical approach. It is fair to say that this book would not exist without his training, his leadership, his relentless obsession with detail and his drive for scholarly perfection. By giving his best to this project he not only took the book to a whole new level, but also channelled my thinking and, actually, made me a legal scholar. I owe these two gentlemen a debt that I will probably be unable to pay back.

The final version of this book was written under the impression of my transfer to the University of Groningen. Discussions with the great people at the Groningen Centre of Energy Law and beyond helped to shape this book. I am particularly grateful to Prof. Martha Roggenkamp, who provided me with unlimited support and the precious freedom and time to finalize this book. Martha is a truly inspiring person, whose energetic nature enabled her to create a buzzing, close-knit community of energy law scholars in Groningen, which makes this an extraordinarily pleasant place to be. There simply is ‘never a dull moment in energy law’, as she would put it.

Furthermore, I wish to acknowledge the contribution of two German universities. The first is the University of Marburg, which contributed unconsciously to this project, years before it actually started, by providing me with a rigorous German legal education. Some of the ideas in this book directly originate from it. The teaching of Prof. Steffen Detterbeck and Prof. Monika Böhm in particular helped to shape my understanding of the law. Second is the University of Kassel, which provided me with the opportunity to conduct in-depth research on German energy law. In addition, I am grateful to the city of Kassel itself, which hosted my family and me for a crucial period of time in our lives, providing us with an inspiring environment to contemplate energy law and other ideas.

This book benefited from generous financial, personal and professional support by the German Friedrich Ebert Foundation in the form of a scholarship. A number of people at the Friedrich Ebert Foundation committed themselves to this project. I am especially grateful to Dr Ursula Bitzegeio for her helping hand and dedication throughout the years.

Finally, this book would have never been completed without the loving support of my family (Ms Margaret Fleming, Ms Ida Fleming, Ms Dana Fleming, Ms Katharina Fleming, Mr Grigorij Krivzov, Ms Angela Zeuschner, Mr Ralf Zeuschner, Ms Sophie Zeuschner). In particular, my mother, Ms Angela Zeuschner, un-waveringly believed in this book and contributed in many different ways. Her unconditional support in itself is extraordinary, but even more so given the fact that the views expressed in the book are quite opposed to her personal beliefs.

The most important person has been spared for the end – it is my wife Ida. Her critical mind and unconventional way of thinking, her logical rigour, as well as her encouragement at difficult times are indispensable and invaluable. Her passion and drive, her love and empathy and her ability to withstand the strains of life enrich every single day. She and our beloved daughter Dana Ska sacrificed a lot of time and put up with, what may only be described as, challenging circumstances. Thank you both, so much. I love you!

I had the time of my life when putting this book together. I hope this transpires and it can live up to the most important dogma that exists in academics. It was formulated 100 years ago by the one writer I admire most, Kurt Tucholsky: ‘Langweilig ist noch nicht ernsthaft’ (Serious is not necessarily boring).