Committee on Petitions NOTICE TO MEMBERS. Petition 1378/2011 by P. U. (Polish), on extraction of shale gas in Poland

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1 European Parliament Committee on Petitions NOTICE TO MEMBERS Subject: Petition 1378/2011 by P. U. (Polish), on extraction of shale gas in Poland Petition 0578/2012 by Teresa Wojda (Polish), on behalf of the association Obywatelski Ruch Oporu, and one co-signatory, on the extraction of shale gas in Poland and the associated pollution Petition 1502/2012 by Teresa Jakubowska (Polish), on shale gas prospecting and extraction in Poland Petition 1623/2012, by Hieronim Więcek (Polish), concerning shale gas prospecting and extraction activities in Poland Petition 1624/2012, by Janina Rutkowska (Polish), concerning shale gas prospecting and extraction in the province of Warmia-Masuria in northern Poland Petition 0991/2013, by H.D. (Polish), on the extraction of shale gas in Poland Petition 2420/2013 by the Mierzeszyn Association (Poland) on exploratory drilling for shale gas in drinking water protection areas 1. Summary of petition 1378/2011 The petitioner calls attention to the fact that Poland is moving towards intensive exploitation of shale gas, which can involve significant problems, not least in the form of pollution of groundwater with methane gas and chemicals. The petitioner further emphasises that total CO 2 emissions will be far higher than from burning coal. The petitioner therefore requests, with reference to Article 194 TFEU, an intervention and a halt to the extraction of shale gas, which will not only cause destructive environmental pollution but will also create serious hazards to human and animal health. CM\ doc PE v03-00 United in diversity

2 Summary of petition 0578/2012 The petitioner refers to the plans to extract shale gas near Lowicz in central Poland, which would entail major problems for the neighbouring Natura 2000 areas and lead to ground water pollution. The petitioner also stresses that the aggregate CO2 emissions would be much higher than from burning coal. She therefore calls on the European Parliament, referring to a number of EU legislative acts, to intervene and put a stop to the extraction of shale gas, which would not only lead to devastating environmental pollution but also represent a serious health hazard for humans and animals. Summary of petition 1502/2012 The petitioner objects to the use of the hydraulic fracturing process for shale gas prospecting and extraction, expressing particular concern at the possible risks, such as irreversible contamination of the natural environment, damage to the agricultural sector, health problems and incurable social consequences. Prospecting activities have already commenced in populated areas (Kutno), unique landscape areas (Jeziorak lake) and areas with serious water shortages (Wielkopolska, Mazowsze, Lublin). She indicates that Poland does not have efficient purification methods for the treatment of heavy metal or radioactive waste materials, for example. In addition, the large multinational companies do not have branches in Poland and numerous undertakings with limited liability and negligible capital reserves have been licensed to carry out prospecting activities while bearing no responsibility for any accidents. The petitioner is seeking a ban on the hydraulic fracturing process throughout the territory of the EU, in accordance with the precautionary principle. Summary of petition 1623/2012 The petitioner calls on the European Parliament to impose a moratorium on the hydraulic fracturing process for shale gas prospecting and extraction in Poland. He expresses concern with regard to Kashubia, a densely populated tourist area with a wide variety of flora and fauna, indicating that it does not have the necessary infrastructure for shale gas prospecting and extraction, thereby increasing the risk of accidents. Recently, a drilling residue tank was overturned in Bytów, disgorging litres of its contents into a nearby river. However, the authorities concealed the incident. While the State monitors associations their members, fundamental human rights are being infringed. The petitioner calls for the representatives of the 35 associations and protest committees from the provinces of Kujawy-Pomerania, Masuria, and Lubusz to be given the opportunity of explaining their views to the European Parliament, given the failure of the national authorities to respond to complaints by civil society. Summary of petition 1624/2012 The petitioner, who lives in the village of Nowy Dwór Bratiański, in the province of Warmia- PE v /9 CM\ doc

3 Masuria in northern Poland, indicates that, in August 2010, the Marathon Oil Company was authorised to carry out natural gas prospecting and extraction in the Brodnica area of the province of Kujawa-Pomerania. In July 2012, the company then commenced gas prospecting activities in Nowy Dwór Bratiański, in the province of Warmia-Masuria, the rigs being situated near the source of the Skarlanka river, which runs through the Brodnica Landscape Park and is a tributary of the Drwęca river, also situated in a wildlife conservation area. The petitioner expresses concern at the impact of hydraulic fracturing processes on the environment and human health and in particular the enormous quantities of water being used, the damage to the environment, the high level of carbon dioxide emissions, the noise, the destruction of roads and the impact on the tourist and agriculture sectors. She calls for urgent measures, pointing out that the earth can only be destroyed once. Summary of petition 0991/2013 The petitioner is protesting against the extraction of shale gas using the hydraulic fracturing method. In particular, the petitioner is demanding the blocking of a fracking operation and natural gas drilling rig in the Łódź Economic Area near the town of Łowicz, which he believes may result in the contamination of the town s drinking water. Summary of petition 2420/2013 The Mierzeszyn Association is protesting against plans to carry out exploratory drilling for shale gas in drinking water protection areas in the municipalities of Powidz and Trąbki Wielkie in northern Poland.2. Admissibility Petition 1378/2011 declared admissible on 23 April Petition 0578/2012 declared admissible on 17 September 2012 Petition 1502/2012 declared admissible on 6 May 2013 Petition 1623/2012 declared admissible on 23 May 2013 Petition 1624/2012 declared admissible on 23 May 2013 Petition 0991/2013 declared admissible on 14/02/2014 Petition 2420/2013 declared admissible on 26/09/2014 Information requested from Commission under Rule 216(6). 3. Commission reply, received on 30 May 2012 The petitioner calls for the implementation of a moratorium on the production of shale gas in Europe, in the light of the possible environmental and climate related impacts. The petition raises concerns regarding the appropriateness of the current EU legal framework applicable to shale gas production. In Europe, the exploration of shale gas is still in its early stage and no commercial production is taking place at present. CM\ doc 3/9 PE v03-00

4 Under the current EU regulatory framework, it is up to Member States to decide whether they will allow prospection, exploration and/or production of unconventional gas resources within their jurisdiction, with due regard to the need to preserve and improve the environment, as per Article 194(1) of the Treaty of the Functioning of the European Union (TFEU). This provision is without prejudice to Article 192(2)(c) of the TFEU, according to which measures significantly affecting a Member State s choice between different energy sources and the general structure of its energy supply can be adopted but they require a unanimous decision of the Council in accordance with a special legislative procedure. Member States must ensure via appropriate assessment, licensing and permitting regimes as well as through monitoring and inspections activities that any exploration or exploitation of energy sources, including those using hydraulic fracturing practices, complies with the requirements of the existing legal framework in the EU, including provisions on the protection of human health and the environment. The precautionary and prevention principles are part of the guiding principles for the development of the EU's environmental policy, as set out in Article 191 of the TFEU. The Commission's legal assessment has concluded that, based on the available technical information, the existing EU legislation applies to practices required for shale gas exploration and production from planning until cessation. This includes, inter alia, provisions pertaining to the completion of environmental impact assessments for natural gas extraction projects 1, the protection of surface and groundwater 2, the management of waste from extractive industries 3, the registration, evaluation and authorisation of chemicals 4 as well as to environmentally protected areas under Natura 2000 (i.e. Birds 5 and Habitats 6 Directives). More information is being gathered to assess whether the level of human health and environmental protection provided by the existing EU legislation is appropriate. In addition to a study the Commission has commissioned to support the identification of possible, specific environmental impacts and risks, it is assessing the potential cumulative impact of shale gas development on water and land use in Europe. It has also set up a technical working group of Member States to stimulate the early exchange of information on key environmental aspects of unconventional fossil fuels. It is in the process of examining the Chemical Safety Reports of the registration files for a number of chemical substances generally used in hydraulic fracturing, in order to determine if the exposure scenarios included in such reports could be considered adequate for shale gas operations. With regard to greenhouse gas emissions, the Commission has also commissioned a study which will provide information on climate related impacts of possible future shale gas developments in Europe. The Commission intends to asses, by the end of 2013, the need for a risk management framework for shale gas developments in Europe and, if necessary, the form it would take. 1 Directive 85/337/EC, OJ L 175, , p.40 2 Directive 2000/60/EC OJ L 327, , p. 1 and Directive 2006/118/EC OJ L 372/19, Directive 2006/21/EC, OJ L 102, , p Regulation 1907/2006/EC, OJ L 396, , p.1 5 Directive 79/409/EEC, OJ L 103, , p. 1 6 Directive 92/43/EEC, OJ L 206, , p. 7 PE v /9 CM\ doc

5 The Commission takes note of the concerns raised with regard to potential environmental and climate impacts and risks related to shale gas projects. It is actively gathering information on the latter notably via on-going studies. Given the limited experience with such projects in the EU and the need for further technical information, it is not possible to conclude, for the time being, whether specific measures at EU level, beyond the existing legislative framework and standards, may become necessary in the future. 4. Commission reply, received on 27 May 2014 Petitions 1378/2011, 578/2012, 1502/2012, 1623/2012, 1624/2012 and 991/2013 The petitioners express concern regarding the risks and impacts on human health and the environment resulting from shale gas exploration in Poland. The petitioners call for urgent measures including the revocation of shale gas concessions granted and/or a ban on the use of hydraulic fracturing in Poland. Among the main concerns raised by the petitioners are featured the risk of water contamination and water resource depletion as well as issues of possible non-compliance with provisions on Natura 2000 protected sites, on the registration of chemicals, issues of a possible lack of monitoring, of appropriate waste and water management, as well as of legal or financial guarantees in case of damage. The Commission's reply focuses on aspects related to shale gas projects and the use of hydraulic fracturing. Each Member State has the responsibility to decide whether it will allow prospecting, exploration and/or production of unconventional gas resources within its jurisdiction. Such a decision should be taken with due regard to existing EU law, in particular the EU environmental acquis. Member States must ensure via appropriate assessment, licensing and permitting regimes as well as through monitoring and inspections activities that any exploration or exploitation of energy sources, including those using hydraulic fracturing practices, complies with the requirements of the existing legal framework in the EU. This includes, inter alia, provisions pertaining to the completion of environmental impact assessments 1, the protection of surface and groundwater 2, the management of waste from extractive industries 3, the registration, evaluation and authorisation of chemicals 4, to environmental liability 5, as well as to environmentally protected areas under Natura 2000 (i.e. Birds 6 and Habitats 7 Directives). More specifically, regarding the Birds and Habitats Directives, they would be applicable if the project in question could have a significant effect on any Natura 2000 site. In accordance with Article 6.3 of the Habitats Directive, any plan or project likely to have a negative effect on Natura 2000 sites has to undergo an appropriate assessment having regard to the sites' conservation objectives. In the light of the conclusions of the assessment, the competent authorities shall agree to this plan or project only after having ascertained that it will not 1 Directive 2011/92/EU, OJ L 26/1, also referred to as "EIA Directive" 2 Directive 2000/60/EC OJ L 327, , p. 1 and Directive 2006/118/EC OJ L 372/19, Directive 2006/21/EC, OJ L 102, , p Regulation 1907/2006/EC, OJ L 396, , p.1 5 Directive 2004/35/EC, OJL 143, , p Directive 2009/147/EC, OJ L 20/7, Directive 92/43/EEC, OJ L 206, , p. 7 CM\ doc 5/9 PE v03-00

6 adversely affect the integrity of the sites. On the basis of information provided by the petitioners, the Commission cannot establish an infringement of the Birds and Habitats Directives. With regard to water protection, EU Member States are required under Article 4 of the Water Framework Directive (WFD) 1 to prevent deterioration in the status of water bodies and to achieve good status by Significant pressures on water quality must be managed in River Basin Management Plans to ensure respect for such requirements. The abstraction of surface or groundwater would qualify as a "water service" within the context of the WFD. Consequently, there should be an adequate contribution of hydrocarbons operations involving the use of high volume hydraulic fracturing to the recovery of the cost, including environmental and resource costs, of this water service. The water pricing policy 2 should also provide adequate incentives for the efficient use of water resources. According to the information available to the Commission, when commercial extraction of gas requires water abstraction from groundwater or surface water exceeding 5 m3/day, Polish law requires a permit and a fee is charged in accordance with a 2008 Council of Ministers' order on charges for the use of natural resources. As per the obligations under the Mining Waste Directive 3, the operator must notably draw up a waste management plan for the minimisation, treatment, recovery and disposal of extractive waste as well as provide a financial guarantee or equivalent covering requirements under the permit. On the basis of information provided by the petitioners, the Commission cannot establish whether or not there is an infringement of the Mining Waste Directive. Good practices in the area of waste management will be discussed with stakeholders in the framework of the on-going review by the Commission of the existing Best Available Techniques Reference Document (BREF) on extractive waste. Under the REACH Regulation 4, manufacturers and importers of chemical substances were obliged to register the substances by December 2010 if produced or imported above 1000 tonnes per year or with a lower tonnage for specific hazardous substances. It is up to Member State enforcement authorities to ensure that shale gas exploration and exploitation projects fully comply with REACH requirements. Polish authorities informed the Commission in October 2013 about the occurrence of a road accident involving a tanker carrying drilling fluid used for shale gas exploration on 13 th August 2012, which resulted in a spillage of "approximately 10 m 3 of the drilling fluid, some of which was discharged into the Boruja river through the sewage system". No further information is available to the Commission with regard to the characteristics of such drilling fluids or possible remediation action taken at this occasion. The allegations, referred to by some of the petitioners, concerning the violation of hydrocarbons licensing EU laws cannot be determined based on the evidences provided. However, the European Court of Justice declared 51] in June 2013 that Poland had failed to adopt the measures necessary to ensure that access to activities relating to the prospection, 1 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327, , p. 1 2 As per article 9 of the Water Framework Directive (2000/60/EC) OJ L 327, , p. 1 3 Directive 2006/21/EC, OJ L 102, , p Regulation 1907/2006/EC, OJ L 396, , p PE v /9 CM\ doc

7 exploration and extraction of hydrocarbons is free of all discrimination. Poland has already taken some corrective actions and the Commission is overseeing that full compliance with respect to the related energy EU-acquis is implemented in due time. The Recommendation on the exploration and production of hydrocarbons (e.g. shale gas) using high volume hydraulic fracturing, recently adopted by the Commission 1, stresses inter alia the importance of a proper site specific risk assessment prior to shale gas operations, baseline reporting and appropriate monitoring, so as to prevent health and environmental risks. It also invites Member States to provide clear rules on possible restrictions of activities, for example in protected, flood-prone or seismic-prone areas and on minimum distances between authorized operations and residential and water-protection areas. The Charter of Fundamental Rights, applicable in the context of implementation of EU law by Member States, provides notably for rights to respect for private and family life (article 7), right to protection of personal data (article 8), and freedom of assembly and of association (article 12), applicable to individual citizens, including members of associations. On the basis of information provided by the petitioners, the Commission cannot however establish whether or not there is a breach of the Charter of Fundamental rights, as more information would be needed on the surveillance action allegedly taken and the concrete circumstances of such alleged surveillance activity. Conclusion The Commission takes note of the concerns raised with regard to potential health and environmental risks related to shale gas projects. As a complement to existing EU law and guidance, it has adopted a Recommendation laying down minimum principles on the exploration and production of hydrocarbons (e.g. shale gas) using high volume hydraulic fracturing, which Member States are invited to follow when applying or adapting their national legislation applicable to shale gas developments. The application of these principles will be monitored by the Commission via a publicly available scoreboard. The Commission will also continue to monitor Member States' respect of their obligations under Union's legislation. 5. Commission reply, received on 29 May 2015 Petitions 1378/2011, 578/2012, 1502/2012, 1623/2012, 1624/2012, 991/2013 and 2420/2013 The Union's long-term objective is to become a resource efficient low carbon economy. As announced in the Energy Union Communication 2 of 25 February 2015, the European Union is committed to becoming the world leader in renewable energy. As contribution to decreasing Europe's import dependence and complementary to increasing the share of renewable energy, producing oil and gas from unconventional sources in Europa such as shale gas is an option, provided that issues of public acceptance and environmental impacts are adequately addressed. According to Article 194(2) of the Treaty on the Functioning of the European Union (TFEU), Member States have the right to determine the conditions for exploiting their energy 1 Commission recommendation of 22 nd January 2014 on minimum principles for the exploration and production of hydrocarbons (such as shale gas) using high-volume hydraulic fracturing (2014/70/EU), OJ L 39/72 of COM(2015) 80 final CM\ doc 7/9 PE v03-00

8 resources. With due regard to the need to preserve and improve the environment (Article 194(1) TFEU), each Member State has the responsibility to decide whether it will allow prospection, exploration and/or production of unconventional gas resources within its jurisdiction. Member States must ensure via appropriate assessment, licensing and permitting regimes as well as through monitoring and inspections activities that any exploration or exploitation of energy sources, including those using hydraulic fracturing practices, complies with the requirements of the existing legal framework in the EU. This includes, inter alia, provisions pertaining to the completion of environmental impact assessments, including information and participation rights as well as access to justice for individuals and associations 1, the protection of surface and groundwater 2, the management of waste from extractive industries 3, the registration, evaluation and authorisation of chemicals 4, to environmental liability 5, as well as to environmentally protected areas under Natura 2000 (i.e. Birds 6 and Habitats 7 Directives). On 22 January 2014 the Commission adopted Recommendation 2014/70/EU on minimum principles for the exploration and production of hydrocarbons (such as shale gas) using highvolume hydraulic fracturing 8. This Recommendation is complementary to existing Union legislation and should be taken into account by the Member States when applying or adapting their regulation related to activities involving high-volume hydraulic fracturing. It aims at supporting Member States who wish to carry out exploration and production of hydrocarbons using high-volume hydraulic fracturing, while ensuring that public health, climate and the environment are safeguarded, resources are used efficiently and the public is informed. The Commission is currently reviewing the effectiveness of this approach and is planning to report to the Parliament and Council in the second half of The Commission will decide whether it is necessary to put forward legislative proposals after the completion of this review. The Charter of Fundamental Rights, applicable in the context of implementation of EU law by Member States, provides notably for rights to respect for private and family life (article 7), the rights to protection of personal data (article 8), freedom of assembly and of association (article 12) and effective judicial remedies (article 47) applicable to individual citizens, including members of associations. Conclusion As regards the main request of the petitioners, i.e. the revocation of shale gas concessions granted and/or a ban on the use of hydraulic fracturing in Poland, the Commission has no competence. On the basis of information provided by the petitioners, the Commission cannot establish an infringement of Directives regulating the protection of surface and groundwater, the management of waste from extractive industries, the registration, evaluation and authorisation 1 Directive 2011/92/EU, OJ L 26/1, also referred to as "EIA Directive" 2 Directive 2000/60/EC OJ L 327, , p. 1 and Directive 2006/118/EC OJ L 372/19, Directive 2006/21/EC, OJ L 102, , p Regulation 1907/2006/EC, OJ L 396, , p.1 5 Directive 2004/35/EC, OJL 143, , p Directive 2009/147/EC, OJ L 20/7, Directive 92/43/EEC, OJ L 206, , p. 7 8 Recommendation 2014/70/EU, OJ L 39, , p. 72 PE v /9 CM\ doc

9 of chemicals, environmental liability, environmentally protected areas under Natura 2000 (i.e. Birds and Habitats Directives) or the Charter of Fundamental rights. The allegations of some of the petitioners concerning the violation of hydrocarbons licensing EU laws cannot be determined based on the evidence provided. However, the European Court of Justice declared 1 in June 2013 that Poland had failed to adopt the measures necessary to ensure that access to activities relating to the prospection, exploration and extraction of hydrocarbons is free of all discrimination. Poland has already taken some corrective actions and the Commission is overseeing that full compliance with respect to the related energy EUacquis is implemented in due time. The Commission considers that Directive 2011/92/EU applies to shale gas activities that involve deep drilling activities and that Poland has not correctly transposed the related requirements. On the basis of the infringement procedure under Article 258 TFEU, the Commission issued a reasoned opinion against Poland for non-compliance with this Directive on 26 February This infringement procedure concerns an amendment in Polish national laws allowing drillings at depths of up to 5,000 metres without prior assessment of the potential environmental impact (screening). As shale gas reserves in Poland are located mostly at a depth 1,000-4,500 m, the new thresholds de facto exclude most shale gas exploration projects in Poland from the scope of the EIA Directive. However, this infringement does not aim to address individual projects; for the latter, the petitioners are advised to use national means of redress. 1 CM\ doc 9/9 PE v03-00