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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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Chapter 4: Objectives and shale gas

A New Framework for Energy Regulation

Ruven Fleming

Extract

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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