Author: Héctor Herrera[1],[2]
This article explains the environmental law and human rights perspectives applicable to the legal situation of hydraulic fracturing of unconventional hydrocarbons (fracking). Then, considering these perspectives, it reviews the legal situation of fracking worldwide. In some cases, countries, and territories that have banned or declared a moratorium on fracking have chosen to accelerate their energy transition, all of this within a climate crisis context that requires a thorough reduction of greenhouse gases emanating from the burning of fossil fuels such as gas, oil and, coal, according to the commitments of the Paris Agreement on climate change (UN, 2015).
Environmental law and human rights perspectives
The precautionary principle is the basis for the prohibitions and moratoriums on fracking. This principle obliges States to refrain from authorizing or executing an activity such as fracking when there is no scientific certainty of the magnitude, causality, and probability of damage. It also obliges States to take measures to avoid serious and irreversible damage to the environment and public health, despite scientific uncertainty.
Some cases of bans and moratoriums on fracking directly apply the precautionary principle, although others apply it without mentioning it explicitly because “these measures are based on the risk of serious and irreversible damage caused by the technique or the uncertainty about the science behind it and the scope and magnitude of its impacts” (Aidun and Giunta, 2019). The precautionary principle has been acknowledged in international legal instruments, including the Rio Declaration on Environment and Development of 1992, the United Nations Framework Convention on Climate Change of 1992, or the Escazú Agreement of 2018[3]. For an extended analysis of the precautionary principle and its application to the possible impacts of fracking, see the second chapter of the book The prohibition of fracking in Colombia as a matter of public policy (Orduz-Salinas and Herrera (ed.), 2018).
On the other hand, the human rights perspective has been applied to fracking because it could affect the rights to health, water, food, housing, access to information and/or public participation (Sisters of Mercy, 2015). International human rights law obliges States to guarantee and protect human rights, especially those of the most vulnerable groups of people, such as women, children, ethnic communities, among others, who may suffer the negative consequences of fracking with greater intensity (Sisters of Mercy, 2015). The cases below exemplify the application of an environmental law and human rights perspective to fracking.
North America
Fracking of unconventional hydrocarbons began in the United States in the 90s decade of the 20th century (Breakthrough Institute, 2012) and the first moratoriums and prohibitions occurred in that country. In New York State in 2010, the Governor’s Office Executive Order 41 declared a moratorium on fracking, while the Department of Environmental Conservation issued a scientific report on the environmental impacts of this technique (Governor’s Office of New York, 2010). In 2012, the Department of Environmental Conservation asked the Department of Public Health to issue a report on the impacts of fracking. In 2014, the Department of Public Health released a review of scientific literature on the impacts of fracking and recommended that it should not proceed (New York State Department of Public Health, 2014). Based on this report, the governor of New York banned fracking (Kaplan, 2014). In 2015, the Environmental Department published a review of scientific literature and public comments over the course of several years in fulfillment of Executive Order 41 and the ban was upheld (Aidun and Giunta, 2019).
In 2011, the report of the United Nations Special Rapporteur on the human rights to safe drinking water and sanitation in the United States pointed out complaints she received about the impacts of fracking on water (De Albuquerque, 2011). Inhabitants of regions where there is fracking reported contamination in the water for human consumption and difficulty in detecting this contamination. The Rapporteur recommended to the United States a holistic consideration of the human right to water by including it in water policies related to energy issues.
In 2012, the State of Vermont banned fracking with law 152, passed by the State Legislature. With this law, it was also prohibited to collect, store, or treat fracking wastewater within the State (law 152, 2012). In 2017, the governor of the State of Maryland banned fracking with law 1325.
The Delaware River Basin Commission is currently reviewing the possibility of banning fracking in its jurisdiction and the use of Delaware River water for fracking-related activities. This Commission is constituted of a Federal Government representative and the governors of Delaware, New Jersey, New York, and Pennsylvania (DRBC, 2017). The governors of New Jersey, Pennsylvania, and New York have already publicly expressed their support for the ban on fracking in the Delaware River Basin, a source of drinking water for 15 million people (State Impact Pennsylvania, 2019).
In 2019, the State of Oregon Legislative Assembly banned fracking with law 2623, which, in Article 4, stipulates that this prohibition is necessary “for the immediate preservation of the public peace, health and safety.” In 2019, the State of Washington banned fracking with Act 5145. The same year, the Governor of the State of Florida Office issued Executive Order 19-12 for water protection and ordered the Department of Environmental Protection to take the necessary measures to strongly oppose fracking in Florida.
In Canada, the Province of New Brunswick banned fracking with Regulation 2015-28 (Legal Information Institute of Canada, 2015). The Province of Quebec prohibited Fracking, but only when applied to shale gas (CBC, 2018).
In sum, in North America, the process of bans, moratoriums, and other restrictions on fracking has focused on the protection of water and public health. In 2019, this process intensified; in a single year Oregon and Washington banned fracking and Florida restricted it. The controversy is likely to continue, as shown in the debates before the 2020 presidential elections in the United States, in which fracking has been one of the main issues (The Washington Post, 2019).
Europe
France banned fracking in 2011 with law 835 of the Assembly of France. This law stipulates that the prohibition on fracking is based on the Charter for the Environment of 2005, which, in article 5, acknowledges the precautionary principle. The Charter for the Environment is part of the French Constitution (Political Constitution of France, 2008). An oil company sued the Fracking prohibition law before the Constitutional Court, which upheld the ban through judgment 2013-346. Subsequently, France ordered the gradual and irreversible exit of oil and gas extraction in its territory by 2040, as part of its strategy against climate change and its leadership in the field. In parallel, France will be implementing the measures of its Climate Plan, such as a ban on the sale of cars that use oil and gas in 2040 (Government of France, 2017).
In 2012, Bulgaria was the second country in Europe to ban fracking and revoked a permit granted to this activity (BBC News, 2012). The same year, Denmark declared a moratorium on fracking (Vinson & Elkins, 2016). Denmark has been replacing the use of fossil fuels with wind energy: in 2017, this energy accounted for 43.6% of total electricity consumption and the goal by 2020 is that this percentage reach 50% (Danks Energi, 2018).
In 2015, the Netherlands declared a moratorium for five years on fracking, a decision based on several studies commissioned in 2013 by the Dutch cabinet on the environmental and social effects of fracking. “The studies have demonstrated that there is also great uncertainty regarding the effects of drilling for shale gas deep below the surface of the ground.” (Government of the Netherlands, 2015). The Ministry of Economy announced that it will present a plan for Dutch energy policy in 2020 (Government of the Netherlands, 2015). In 2018, the Dutch government announced the gradual closure of the Groningen gas field, one of the largest in Europe, because “the consequences of the extraction are no longer socially acceptable, according to Cabinet” (Government of the Netherlands, 2018).
Also in 2018, the Dutch State Council ordered the Ministry of Economy and Climate to review its decisions on two shale gas projects in the regions of North Brabant and Noordoostpolder, this time, in the application of the Mining Law of 2017, which gives priority to environmental protection (State Council of the Netherlands, 2018). In parallel, the Netherlands is moving forward in its energy transition policy, with milestones such as the total ban in Amsterdam, in 2030, of cars and motorcycles using fossil fuels (The Guardian, 2019).
In 2016, Germany banned fracking, with some exceptions, and is implementing the energy transition policy, the “Energiewende” (Morris and Pehnt, 2017).
In Spain, the Autonomous Community of Castilla-La Mancha prohibited fracking, with some limitations, with law 1 of 2017. The Constitutional Court revised this law and upheld it through judgment 6240-2017. Currently, Spain is discussing draft legislation on Climate Change and Energy Transition, which includes an article that would prohibit fracking. The Council of Ministers of Spain gave a green light to this proposed legislation in February 2019 (Ministry for Ecological Transition, 2019). The aforementioned bill is based on the precautionary principle and applies it to climate change adaptation policies (Draft legislation on Climate Change and Energy Transition, 2019).
In 2017, the Republic of Ireland banned fracking in its continental territory (National Parliament of Ireland, 2017). Also, Ireland, with law 103 of 2016, ordered the sale of its assets in fossil fuel companies within five years (National Parliament of Ireland, 2018).
In 2011, in the United Kingdom, the Northern Ireland Assembly passed a motion stating that there should be a moratorium on fracking in the continental and offshore territories; this, as a response to the fact that fracking represents environmental and social risks and is incompatible with efforts to reduce greenhouse gas emissions. In that motion, the Assembly recommended that the Ministry of Economy increase support for renewable energy (Northern Ireland Assembly, 2011).
In 2015, in the United Kingdom, the National Assembly of Wales approved a moratorium on fracking, “until it is proven to be safe in both an environmental and public health context.” (National Assembly for Wales, 2015). In 2018, the Welsh government stated that it will not support any fracking request or authorize licenses to extract oil in its jurisdiction. On this measure, the Wales Minister of Environment, Energy and Rural Affairs said, “instead of exploring new ways to extract fossil fuels, we should invest in renewable forms of energy” (Government of Wales, 2018). In the United Kingdom, Scotland also banned fracking in 2017 (Carell, 2017).
In 2019, in the United Kingdom, England declared a moratorium on fracking based on the report of the Oil and Gas Authority which “found that it is not currently possible to accurately predict the probability or magnitude of earthquakes linked to fracking operations.” (United Kingdom Government, 2019).
In 2019, the Committee of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) examined the eighth periodic report of the United Kingdom. The Committee of the CEDAW (2019) expressed concern about the possible disproportionate impact due to the harmful effects of fracking on women in rural areas, being exposed to hazardous chemicals, environmental pollution, and climate change. Accordingly, the Committee recommended to the United Kingdom the following: “Review its policy on fracking and its impact on the rights of women and girls and consider introducing a comprehensive and complete ban on fracking.”
On September 1, 2019, the highest authority of the Vatican State, Pope Francis, published the following message during the World Day of Prayer for the Care of Creation: “Now is the time to abandon our dependence on fossil fuels and move, quickly and decisively, towards forms of clean energy and a sustainable and circular economy.” (Pope Francis, 2019). This message also constitutes a guideline for the 1.3 billion people part of the Catholic Church worldwide (Press Office of the Holy See, 2018). Eight days later, a group of several religious institutions, with US $11 billion in assets, announced their withdrawal from fossil fuel investments (Global Catholic Climate Movement, 2019). Since the Vatican State is a unitary, absolute, and theocratic monarchy, the Pope is the highest political and legislative authority and the decisions he makes on the matter will be conclusive.
In Europe, the prohibitions and moratoriums on fracking have been based, directly or indirectly, on the precautionary principle. On the other hand, several countries in this region claim to have a high political commitment to climate change and energy transition and fracking decisions have been made in that context.
Latin America
In 2017, Uruguay banned fracking for four years, with law 19585. This law also ordered the formation of a Scientific Evaluation Commission to prepare a report on the global situation of fracking and available scientific information. Based on this report it will be decided whether the ban continues or not. This Commission has representatives from the Ministry of Energy, the Ministry of Housing, the University of the Republic, Congress, the National Academy of Sciences and non-governmental organizations linked to environmental protection. This Commission is required to apply the international commitments assumed by Uruguay in energy, environmental, and climate change policy (Law 19585 of 2017).
In Argentina, the Province of Entre Ríos prohibited fracking with law 10477 of 2017. This law reiterates the importance of protecting rain, surface, and underground waters, including the Guaraní aquifer (Law 10477 of 2017). The Agreement on the Guaraní Aquifer between Argentina, Brazil, Paraguay, and Uruguay oblige these countries to protect this underground water reserve (Law 26,780 of 2012, through which the agreement enters into the Argentine legal system).
On the other hand, Argentina has one of the largest fracking operations in the world in the Province of Neuquén in the Vaca Muerta region (United States Energy Information Administration, 2019). In 2018, the United Nations Committee on Economic, Social and Cultural Rights reviewed the fourth periodic report submitted by Argentina on the implementation of the International Convention on Economic, Social, and Cultural Rights. As a result of this review, the Committee recommended the following to the Argentine State regarding fracking operations in Vaca Muerta:
reconsider the large-scale exploitation of unconventional fossil fuels with fracking in the Vaca Muerta region to ensure compliance with its obligations under the Convention, in light of the commitments of the Paris Agreement. The Committee also encourages the State party to promote alternative and renewable energies, reduce greenhouse gas emissions and set national targets with defined benchmarks over time (Committee on Economic, Social and Cultural Rights; 2018).
In 2018, the Colombian State Council declared a judicial moratorium on fracking by provisionally suspending the regulatory framework of this technique, in application of the precautionary principle, while releasing the final judgment (State Council of Colombia, 2018).
In 2019, Costa Rica declared a moratorium on fracking and all forms of hydrocarbon extraction in decree 41578, thus: “declaring a national moratorium until December 31, 2050 on activity that has the purpose of developing the exploration and exploitation of oil deposits in the national continental and marine territory” (Official Gazette of Costa Rica, 2019). In parallel, Costa Rica plans to suppress the use of fossil fuels in 2050. Therefore, this country has as a goal that, in 2030, 70% of buses and taxis will be zero emissions and, in 2050, 100% (DW, 2019).
In Brazil, the State of Paraná prohibited fracking with act 19878 of 2019. Before, Paraná had declared a moratorium with law 18947 of 2016. On the other hand, the State of Santa Catarina prohibited fracking with law 17766 of 2019, in application of the precautionary principle, and with the intention of protecting the environment for present and future generations (Law 17766, 2019).
In 2019 in Mexico, the Presidency of the Republic suspended a previously granted authorization to use fracking in the AE-0387-2M-Humapa field, in Veracruz and Puebla (Monroy, J. and García, K., 2019). Also, by 2019, Mexico had six legislative projects pending to ban fracking (Ortuño, G., 2019).
In Latin America, there is also a trend of prohibitions and moratoriums on fracking, in which the precautionary principle has served as legal support. The controversy on this issue is intense in countries such as Colombia and Mexico, where the presidents elected in 2018 promised in their election campaigns not to allow fracking (Vega, 2019 and Goodman, 2018). In Argentina, a fire that occurred in September 2019 in the Vaca Muerta field that lasted several weeks and required the assistance of US firefighters once again put fracking at the center of the debate (Andrade, 2019). On the other hand, countries such as Costa Rica and Uruguay have been leading the energy transition in the region and gradually reducing their dependence on fossil fuels.
Africa and Australia
In 2019, the Supreme Court of Appeal of South Africa decided that the environmental legal frameworks for the fracking operation issued by the Ministry of Mines were not legal since this ministry was not competent to regulate environmental matters (Supreme Court of Appeal, 2019). Consequently, fracking exploration and exploitation activities in South Africa cannot proceed until the competent authority issues the applicable environmental regulatory framework (Supreme Court of Appeal, 2019). In any case, since 2011, a sector of South African society has opposed fracking in this country, especially in the semi-desertic region of Karoo (The Guardian, 2011 and Brandt, 2019).
In 2014 in Australia, the Tasmanian Government imposed a moratorium on fracking until 2020, which was renewed in 2018 until 2025. In its public policy on fracking, it states that “the risks cannot be eliminated entirely due in part to the uncertainty of being able to fully define the geological, hydrological and hydrogeological characteristics of a particular region.” (Government of Tasmania, 2018). During the moratorium period, the Government of Tasmania will consult the “scientific understanding of environmental and public health issues relating to fracking in other jurisdictions” (Government of Tasmania, 2018). In 2018, the Victoria Government declared the moratorium on fracking for two years (Victoria Prime Minister, 2018). In other provinces and territories of Australia, such as New South Wales, Western Australia, and the Northern Territory, fracking controversies continue (Luke, Brueckner and Emmanouil; 2018).
International pronouncements
In 2011, the United Nations Special Rapporteur on the human rights to safe drinking water and sanitation echoed complaints about the impacts of fracking on the water in the United States, as already mentioned in section two of this article. In 2012, the United Nations Environment Program issued an alert on the risks of fracking to the environment and public health and, therefore, recommended a review of the public policies and regulations of this technique worldwide. Therefore, since 2011 and 2012 there has been concern at the international and United Nations level about the impacts of fracking.
In 2018, the United Nations Conference on Trade and Development published a report with the analysis of the positive and negative aspects of fracking in which it warned that this technique could have greater risks in developing countries (UNCTAD, 2018). The same year, the United Nations Committee on Economic, Social, and Cultural Rights recommended that Argentina reconsider the exploitation of fracking in Vaca Muerta so that it could meet its international climate commitments. Likewise, the Committee recommended that Argentina promote the energy transition. In 2019, the United Nations Committee on the Elimination of Discrimination against Women expressed concern to the United Kingdom about the disproportionate impacts of fracking on women in rural areas and recommended a complete ban on this technique. These recommendations of the United Nations committees are presented in more detail in the third and fourth sections of this article.
The pronouncements made within the framework of the United Nations begin to identify the impacts that fracking could have on developed and developing countries in terms of human rights, like the rights to water and health; and discriminated groups such as women in rural zones.
At the regional level, the Inter-American Commission on Human Rights advanced in 2018 the 169th Period of Sessions in Boulder, Colorado, United States and reviewed fracking and its possible impacts on human rights (IACHR, 2018). In this procedure, organizations and experts from the Americas presented their testimonies and documentation to the Commission about the impacts that fracking has or could have on human rights (IACHR, 2018). Likewise, “The IACHR also explained how important it was to have information that contains comparative perspectives in order to establish standards on water, sanitation, food, and the right to health.”
In 2018, the Permanent Peoples’ Tribunal, an international popular initiative, held a session on human rights, fracking, and climate change. After reviewing evidence and testimonies from communities and experts, the Tribunal recommended a ban on fracking worldwide and an investigation by the United Nations Rapporteur for Human Rights and the Environment regarding the possible violations of human rights and rights of nature caused by fracking (Permanent Peoples’ Tribunal, 2019).
The IACHR hearing and the recommendation of the Permanent Peoples’ Tribunal, both on fracking, show how international entities are in the process of deepening their analyses and determinations on the possible impacts of fracking in terms of human rights. Developments in this regard are likely to continue.
Conclusion
Since 2010, North America, Latin America, Europe, South Africa, and Australia have had strong controversies about whether or not to prohibit fracking, which intensified and increased in 2018 and 2019. These controversies have materialized in the cases here presented of prohibitions, moratoriums, or restrictions, in which environmental law, with the direct or indirect application of the precautionary principle, the protection of water reserves, and the guarantee of the right to a healthy environment have been fundamental. At the same time, international pronouncements have begun to review the application of international human rights law to fracking, so probably there will be developments in this area in the coming years.
This happens in the context of the global commitment to meet the goals of the Paris Agreement on climate change. In this perspective, it is necessary to leave a substantial part of the current fossil fuel reserves underground, which emit greenhouse gases when they are extracted and burned. Consequently, a transition to less-polluting energy sources, including the sun and the wind, is unavoidable. This article showed that regions such as Europe or countries such as Costa Rica and Uruguay have advanced in their energy transition and gradually increase their sovereignty in terms of energy and reduce their dependence on fossil fuels, including those extracted with fracking.
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United Nations Environment Program, UNEP (2012). Gas fracking: can we safely squeeze the rocks? Retrieved from https://na.unep.net/geas/archive/pdfs/GEAS_Nov2012_Fracking.pdf
United Nations Conference on Trade and Development, UNCTAD (2018). Commodities at a Glance No 9. Special issue on shale gas. Retrieved from https://unctad.org/en/PublicationsLibrary/suc2017d10_en.pdf
United Kingdom Government (2019). Government ends support for fracking. Retrieved from https://www.gov.uk/government/news/government-ends-support-for-fracking
United States Energy Information Administration (2019). Growth in Argentina’s Vaca Muerta shale and tight gas production leads to LNG exports. Retrieved from https://www.eia.gov/todayinenergy/detail.php?id=40093
Vega, L. (2019). “There will be no fracking in Colombia”, the promise of Iván Duque in a presidential campaign. W Radio. Retrieved from http://bit.ly/encolombianoseharafracking
Vinson & Elkins (2016). Denmark. Retrieved from https://www.velaw.com/Shale—Fracking-Tracker/Global-Fracking-Resources/Denmark/
Global Catholic Climate Movement (2019). New Milestone in Divestment. Retrieved from https://catholicclimatemovement.global/new-milestone-in-divestment/
Laws, draft legislations and, judgments
Draft legislation on Climate Change and Energy Transition (2019). Congress of Deputies of Spain. Retrieved from http://www.congreso.es/public_oficiales/L13/CONG/BOCG/B/BOCG-13-B-48-1.PDF
Law 835 of 2011. Prohibiting the exploration and exploitation of liquid or gaseous hydrocarbons with hydraulic fracturing and repealing exclusive research permits involving projects that use this technique. The Republic of France. Retrieved from https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024361355&categorieLien=id
Law 26,780. (2012). Approval of the Agreement on the Aquifer between the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Oriental Republic of Uruguay. Senate and Chamber of Deputies of the Argentine Nation. Retrieved from http://servicios.infoleg.gob.ar/infolegInternet/anexos/205000-209999/205186/norma.htm
Law 152 of 2012. An act relating to hydraulic fracturing wells for natural gas and oil production. Vermont State Legislature. Retrieved from http://www.leg.state.vt.us/docs/2012/Acts/ACT152.pdf
Law 1325 of 2017. Oil and natural gas – Hydraulic fracturing – Prohibition. Governor of the State of Maryland. Retrieved from http://mgaleg.maryland.gov/2017RS/chapters_noln/Ch_13_hb1325T.pdf
Law 18947 of 2016. Provision on shale gas exploration with the fracking drilling method. Legislative Assembly of the State of Paraná. Retrieved from https://www.legislacao.pr.gov.br/legislacao/pesquisarAto.do?action=exibir&codAto=166842&codItemAto=1038447#1038447
Law 19585 of 2017. Prohibition of the use of the hydraulic fracturing procedure (fracking) for the exploitation of unconventional hydrocarbons. Creation of the National Commission for Scientific and Technical Evaluation. Uruguayan Parliament. Retrieved from https://www.impo.com.uy/bases/leyes/19585-2017
Law 10477 of 2017. Prohibition of prospecting. The Legislature of the Province of Entre Ríos. Retrieved November 29, 2018. Retrieved from http://argentinambiental.com/legislacion/entre-rios/ley-10477-prohibicion-la-prospeccion-exploracion-explotacion-hidrocarburos-liquidos-gaseosos/
Law 2623 of 2019. Prohibits the use of hydraulic fracturing for oil and gas exploration and production. Oregon Legislative Assembly. Retrieved from https://olis.leg.state.or.us/liz/2019R1/Downloads/MeasureDocument/HB2623/Introduced
Law 5145 of 2019. An Act relating to the use of hydraulic fracturing in the exploration for and production of oil and natural gas. Washington State Legislature. Retrieved from http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Senate%20Passed%20Legislature/5145.PL.pdf
Law 19878 of 2019. Prohibition of shale gas exploration in the State of Paraná by the method of hydraulic fracturing – fracking. Legislative Assembly of the State of Paraná. Retrieved from https://www.legislacao.pr.gov.br/legislacao/pesquisarAto.do?action=exibir&codAto=222146&indice=1&totalRegistros=1&dt=10.6.2019.11.55.3.215
Law 17766 of 2019. Establishes basic rules and criteria for the precaution and preservation of soil, environment, fauna and flora, protection and defense of health, through preventive action and pollution control, conservation of nature and natural resources for present and future generations and sets guidelines. Legislative Assembly of the State of Santa Catarina. Retrieved from http://leis.alesc.s,c.gov.br/html/2019/17766_2019_lei.html
Judgment 346 of 2013. Prohibition of hydraulic fracturing for hydrocarbon exploration and exploitation – Repeal of research permits. Constitutional Court of France. Retrieved from https://www.conseil-constitutionnel.fr/decision/2013/2013346QPC.htm
[1] Lawyer. Master in Public Policy. Member of The Global Network for the Study of Human Rights and the Environment (GNHRE). Contact: hherrera@uniandes.edu.co
[2] Originally published in Spanish. Citation: Herrera, H. (2019). The legal status of fracking worldwide, an environmental law and human rights perspective. In N. Orduz-Salinas (Ed.), The unfeasibility of fracking in the face of the challenges of the 21st century. Bogotá: Heinrich Böll Foundation. Retrieved from https://co.boell.org/es/2019/11/15/la-inviabilidad-del-fracking-frente-los-retos-del-siglo-xxi Creative Commons CC BY-NC-ND 2.5 CO
[3] Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean
Featured image: Friends of the Earth (England, Wales and Northern Ireland).
