Strong Response to Consultation on Proposed German Fracking Legislation

Following written consultation on a legislative package to regulate the fracking technology, the sixteen German states (Länder) and almost fifty associations participated in an oral hearing held by the Federal Ministry of Economics (BMWi) and the Federal Environment Ministry (BMU) on 11 and 12 February 2015.

The package comprises a bill amending  the Federal Water Resources Act (WHG) and the Federal Nature Conservation Act (BNatSchG), a bill extending liability for subsidence damage pursuant to the Federal Mining Law to borehole drilling and caverns and an ordinance introducing environmental impact assessments and concerning mining law requirements for the use of the fracking technology and deep drilling (for more information, please see here).

Participants discussed the proposed bans and stricter requirements for fracking as well as new obligations regarding environmental impact assessments. As might be expected the opinions on the need for regulation differed, BMWi and BMU said.

The proposal to amend the Federal Water Resources Act so a to better protect drinking water met with approval by most participants. The same applied to the changes regarding liability for mining damages (Bergschäden) which shall be extended to caverns and borehole drilling, while shifting the burden of proof in case of damages to the operator, the ministries said. In general the statements in the view of the ministries confirmed that the drafts struck a balance between environmental and health concerns and commercial interests by the raw materials and energy industry.

They announced to evaluate the hearing as well as the written submissions and update the drafts if necessary.

It remains to be seen whether or to what extent the fracking legislative package will in practise lead to fracking actually being used in Germany, and for which projects. Currently, we have a de facto, mainly administrative ban on new fracking projects, without a proper legal basis.

The updated ministerial drafts shall once again be reviewed by all ministries involved (Ressortabstimmung) before being submitted first to the government and following approval to Parliament, BMWi says without providing specific dates.

Source: Federal Ministry for Economic Affairs and Energy

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