As stated before, France hasn’t started any process of exploitation and development of the shale gas, even though the first estimations induce the possibility of high resources. However, the first research operations conducted by oil companies during the years 2010-2011 have provoked strong reactions and mistrust, with local demonstrations and protestations from environmental organizations since the end of 2010. These preoccupations, often supported by local authorities, have pressurized the government into reacting quickly, in order to calm down the situation. As pointed by one of our interviewees, Sébastien Chailleux, proposals of laws have been made as well from the majority as from the opposition, and sometimes redacted in the night for the day after. These are the signs of a policy of emergency, which probably lacked reasonability.
As a consequence, the law n°2011-835 was voted on July, 13th, forbidding the exploration and the exploitation of hydrocarbon mines by the means of hydraulic fracturing techniques. However, as pointed by our main interviewees and a certain number of press articles, as well as on the anti-shale gas collectives’ websites, there are several flaws in that law to be considered.
THE LAW OF THE 13th OF JULY 2011
First of all, the decision was taken before the mandated Commission could even make its conclusions and give its expertise regarding the technique of “fracking”. As you can read in Bruno Ageorges’ interview, one of the main blackbox of the controversy lies in the lack of reliable information regarding the resources, the technique and its possible improvements or alternatives, and the consequences on economy, environment and society. As the law was voted in a rush, in order to respond to politically uncomfortable situation, it simply blocked any possibility of debate. If we compare the French situation with that of Quebec, for instance, where a certain number of public auditions were established, the process that led to the promulgation of the law excluded all forms of consultation and participation. As the UFIP notes, there would be a large range of scientific and technical fields to be discussed and debated.
However, the law of the 13th of July implies in its 2nd article the establishment of a national Commission of orientation and evaluation of the techniques of research and exploitation of hydrocarbons. Its mission would be to provide a legal frame within which experimentation could be executed. However, such Commission still hasn’t been formed, and the oil companies are now in a statu quo, unable to perform any research that could provide possibilities of acceptability for future projects of exploitation.
Moreover, one has to notice the inherent incoherence of the law. Indeed, it has forbidden the exploitation by hydraulic fracturing because it couldn’t retroactively forbid exploration, which had already been allowed months before through research permits. To put it simply, the government granted research permits to the oil companies, knowing which techniques they were using and what resource it was trying to estimate, and when the local anger broke out, they forbid the use of the technique of fracking, implicitly putting an end the research activities on the permits’ zones. Because indeed, as the UFIP explained, there is no other technique, apart from fracking, that can help building an estimation of the recoverable resources.
Two months after the promulgation of the law, companies who had been granted permits were to handle reports within which they described their research activities and precised the techniques they employed. Three permits have then been abrogated because of the use of fracking (Nant, Villeneuve-de-Berg, Montelimar) As a consequence, some oil companies, as Schuepbach Energy and Total attacked the government and asked for financial compensation, in respect of their research massive investments.
As we can see, this law is not satisfactory at all on the side of the oil companies, but as we will now show, it is deeply unsatisfactory on the side of local communities and anti-shale gas movements as well. Indeed, this law, by simply forbidding the use of fracking, leaves doors opened for future exploitation of shale gas.
First of all, except for the three abrogated permits, there are still 61 research permits concerning potential shale gas resources. Even though the oil companies cannot use the technique of fracking, these ongoing permits are perceived as threats by local populations.
Moreover, there is a claim for an interdiction to explore or exploit shale gas, no matter what the employed technique is. Another point of dissatisfaction is the fact that the law does not juridically nor technically defines the notion of hydraulic fracturing. As a consequence, there is a mistrust that the owners of mining permits could continue their operations by simply changing a few details and using a new terminology. As a consequence, it remained the government’s prerogative to appreciate the content and the reach of the permits, by examining the reports the companies were to handle 2 months after the publication of the law.
Finally, the collectives denounce (mainly on their website publications) the fact that the law enables oil companies to perform scientific researches on shale gas. This isn’t exactly true, as the law only provides a Commission in charge to establish the legal frame within which scientific researches would be conducted, and the Commission, almost a year after the promulgation of the law, still hasn’t been established.
Still, this does not change the fact that the law of the 13th of July 2011 has made both sides frustrated and dissatisfied, while putting an embargo on the debate, which, lacking concrete information, can so far be only reduced to an opinion debate. This controversy can be understood as a matter of public concern, where everybody brings their opinion without a real public place for the debate to actually take place, and it would probably gain by becoming more of a matter of facts, with scientific and technical reviews to rely on.
TOWARDS A REFORM OF THE MINING CODE ?
How have we come to such a situation ? As mentioned by our interviewees, one of the main problems would lie in the obsolescence of the French Mining Code (annexe 2) that regulates the granting of permits.
In the current state of the Mining Code, the granting of an authorization for research work goes through a declaration, submitted for opinion to the Prefect (who, thereby, does not have the power of decision), and transmitted, “for information”, to the municipalities. In the case of the granting of exploration permits concerning shale gas, some of the mayors even found out what was going on in their region in the newspaper. Indeed, the opinion of the mayors of the concerned municipalities is not required by law. As a consequence, local elected have the feeling to be facing a fait accompli. Which leads most of the actors of the controversy to recognize a potent lack of transparency upstream.
Many are in favor of a modernization of the Mining Code. The synthesis of the report of the CGIET and the CGEDD advices to update the rules in order to improve the information and consultation of the public and the elected, before the actual granting of the permits. The UFIP also said to be in favor of the incorporation of the public into the decision-making process, in a more participative way. A report written by Arnaud Gossement, lawyer, was handed to Nathalie Kosciusko-Morizet, the Minister of Ecology and Sustainable Development, tends to study the articulation between the Mining Code and the Environmental Law, and the possible evolution for a better information and participation of the public, and a reinforced environmental evaluation.
Moreover, a recent article published on Lesechos.fr, written by the jurist and lawyer Marc Fornacciari, proposes other hints for an approval of the law, with, for instance, a compensation for the land owners, a better way of information for the citizens and an incentive to collectivity through local taxes.
Nevertheless, as our interviewee MF. Marchand notices, the integration of the public opinion would not necessarily result in a more democratic, Eco-friendly practice in the end. Before they saw the movie Gasland, almost nobody knew about shale gas, fracking and the surrounding controversies. A simple consultation of the people would not result in a real free choice, if people are not informed enough to develop counter arguments. The effect of a simple “pedagogic” information to the people would be comparable to that of a referendum about nuclear power or GMO.
INTERNATIONAL, EUROPEAN AND NATIONAL NORMS TO RELY ON
As a consequence, maybe a better juridic answer would be found in laws that protect greater principles, as environment and public health.
National Level
On the national level we already have a large range of norms that should be guiding the energetic policy regarding shale gas potential exploitation and regulation. Among them, there is the Charte Constitutionnelle de l’Environnement, and especially the precautionary principle. Indeed, “The precautionary principle requires, that even in the absence of identified risks, to define immediate action to protect the environment. However, far from being a principle of systematic inaction, the precautionary principle regulates measures by requiring, first, that they remain provisional and proportionate to the damage considered, and secondly,that they are accompanied by expertise, in order to better understand the risks and to adapt them well. [...]”. As states the report of the CGIET and the CGEDD, to apply this principle does not mean to refuse exploration, but rather to explore all of the existing technologies in order to diminish the potential risks, before deciding. Moreover, processes of evaluation of the risks and provisional measures should be adopted.
Furthermore, the “POPE” law (13th July 2005) gives guidelines for an energetic policy integrating the environmental constraints. The article 1 claims at the same time an energetic policy that guaranties the strategic independence of the Nation as well as the protection of public health and environment, especially through the decrease of Greenhouse effect emissions. The second article also requires the diversification of the forms of energy supplies. This double imperative leads us to believe that indeed, shale gas should not be forbidden just yet, but should be at least be studied, and raised on the public space in order to open a debate, accompanied by expertise, so that we can evaluate the real risks.
European Level
The Shale hydrocarbons are more and more likely to be part of the European energy mix around 2020, as UK and Poland, for instance, have already started exploiting this resource. It will thereby influence our energetic policy. One of the main priorities, in the program of the 2nd semester of the Polish presidency of the EU Council, is the reinforcement of the exterior energetic policy of the EU. In February, the Council adopted a declaration with 15 guidelines in order to “establish solid bases for a sustainable growth”. About unconventional energy resources, the declaration shows a will “to evaluate the available potential concerning the extraction and sustainable use of conventional and non-conventional fossil resources”.
Nevertheless, by doing so, the Council should also take into consideration the European Environmental norms and rules, as well as the international treaties.
