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Shale gas extraction is a technology that is recently arriving in Europe and Germany. The technology brings about a considerable amount of potential environmental threats, but the extraction of shale gas also promises energy security rewards. When the European and German systems for energy and environmental regulation were developed, shale gas extraction did not exist as a technical possibility. Both systems are, hence, not entirely adapted to this technology. This work highlights different ways in which the European and German legislator could act to close existing gaps in their regulatory systems. This could mainly be done by supplementing the existing system with new, shale gas specific regulations. These regulations should be summarized in a new-build shale gas law. The current work tracks the different stages of development of such a new shale gas law, starting from the level of rather abstract constitutional objectives, which translate into clearer defined environmental principles, which in turn translate into a concrete law. Experience from other European states with the legal handling of shale gas extraction teaches that there are essentially two different orientations for such a new-build shale gas law. One is the adoption of a prohibitive moratorium and the other is the implementation of a cautious, but permissive shale gas law. This work`s original contribution to knowledge is the insight that constitutional pre-settings on the interplay of environmental protection with energy security make a cautious, but permissive shale gas law a measure that is legally sounder than a shale gas moratorium. Legally sound, in this context, means complying, to the greatest extent possible, with the applicable constitutional and quasi-constitutional objectives. A shale gas moratorium only serves one purpose, environmental protection, and does not take sufficient account of the energy security objective. A shale gas moratorium only serves one purpose, environmental protection, and does not take sufficient account of the energy security objective. A cautious, but permissive shale gas law, by contrast, possesses the ability to reconcile the competing interests of environmental protection and energy security, which makes it more resilient to judicial review than a moratorium. Having said that, it must be emphasised that shale gas regulation is ultimately a political decision and the legislator is allowed to pick either of the described solutions. This work merely describes which solution is the legally soundest in the sense defined above. To sum up, results from this study will extent what is currently known about the constitutional pre-conditions for the development of shale gas regulation. It highlight that constitutional objectives have a significant impact on the shape of energy regulation. |
