Reporter: Friends of the Earth Europe
In case you haven’t already seen that on Twitter (or through other channels of information), I thought you would find interesting what happened today with the European Court of Justice (ECJ).
An Austrian Court referred three questions to the ECJ for a preliminary ruling on a case directly linked to our favorite issue.
The case is interesting as it questions the ECJ on how the Environmental Impact Assessment (EIA) Directive (which was reviewed last year, if you remember) applies to a case when a company drilled a well more than 4.000m deep for gas exploration without making any environmental impact assessment.
You can find the ruling here (in every EU languages): http://bit.ly/1CUSPOW
And here is my analysis:
- First question asked to the ECJ:
- Q: Must the Annex I of the EIA Directive (ie the annex listing the activities subject to a mandatory EIA) be interpreted as meaning that exploratory drilling, in the context of which a trial production of natural gas and petroleum is envisaged in order to determine the commercial feasibility of a deposit, comes within the scope of that provision.
- A: Annex I of the EIA Directive must be interpreted as meaning that exploratory drilling, in the context of which a trial production of natural gas and petroleum is envisaged in order to determine the commercial feasibility of a deposit, does not come within the scope of that provision.
- Conclusion: No mandatory EIA for oil and gas exploration activities. But the Court considers that such kind of exploration activities falls under the scope of the Annex II (which includes deep drillings). It means that the “Member States are to determine through a case-by-case examination or through thresholds or criteria set by them whether projects listed in Annex II to that directive are to be made subject to an environmental impact assessment”.
- Third question asked to the ECJ:
- Q: Should the EIA Directive be interpreted as meaning that the authority, in order to determine whether there is an obligation to carry out an environmental impact assessment, must examine, as to their cumulative effect, only all projects of the same kind, specifically, all drilling sites which have been opened in the municipal district?’
- A: The ECJ refers to the Annex III of the EIA Directive and says that “the characteristics of a project must be assessed, inter alia, in relation to its cumulative effects with other projects. Failure to take account of the cumulative effect of one project with other projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment”
- Conclusion: Great analysis that deconstruct attempts by the industry to justify that one well would never damage the environment. Not only the screening procedure should therefore look at the cumulative impacts that a field of production could generate, but it should also look at the possible damages during the exploration (“the preliminary assessment must also consider whether, on account of the effects of other projects, the environmental effects of the exploratory drillings may be greater than they would be in their absence.”)
What I don’t understand is the conclusion the Court makes at the end of its answer to the third question, because it contradicts what they say before: “The answer to the third question is that Article 4(2) of Directive 85/337, read in conjunction with Annex II, No 2(d), to that directive, must be interpreted as meaning that it may give rise to an obligation to conduct an environmental impact assessment of a deep drilling operation, such as the exploratory drilling at issue in the main proceedings.” It’s particularly contradictory with the sentence that follows and that says that “the competent national authorities must accordingly carry out a specific evaluation as to whether, taking account of the criteria set out in Annex III to that directive, an environmental impact assessment must be carried out”
My main conclusion is that it is a very interesting first legal case sent in front of the ECJ and that is directly linked to the fracking issue: No matter what the industry is saying about the absence of impacts during the exploration phase and despite their repeated attempts to by-pass this legislation by asking licenses smaller than 1 hectare, the ECJ recalled today that (1) gas exploration, even with supposedly non commercial purposes, should be part of the EIA procedure, and (2) that the cumulative impacts of all the gas activities in the area should be looked at when the environmental impacts of one project are assessed.