Shale gas extraction, precaution and prevention: A conversation on regulatory responses

Shale gas in the EU and its Member States faces increasing attention from a regulatory perspective. Questions about the role of law regarding the development of shale gas extraction in Europe are being asked. The role of law within science, as Laurie et al. suggest, involves an important decision: “whether the law is an enabler or a prohibitor of technologies” (Laurie, G., Harmon, S.H., Arzuaga, F., 'Foresighting Futures: Law, New Technologies, and the Challenges of Regulating for Uncertainty' 4 Law, Innovation and Technology 1 (2012), 1-33, at 10) [1]. At best, the law should promote the development of a technology without unduly compromising the protection of society and the environment from consequences of uncertainties and potential threats of an associated technology (Laurie, G., Harmon, S.H., Arzuaga, F., 'Foresighting Futures: Law, New Technologies, and the Challenges of Regulating for Uncertainty' 4 Law, Innovation and Technology 1 (2012), 1-33, at 10) [2]. The principles of precaution and prevention are the two main tools of European law, which shall help to strike a balance between enabling and prohibiting the development of an emerging energy technology like shale gas extraction. This article departs from the perspective that law at EU level is imposing control on the management of “known” risks via the preventive principle. Regarding “uncertainties” or “unknowns”, decision makers are legally obliged to be guided by the precautionary principle. This paper discusses the two environmental law principles - precaution or prevention - and contemplates which of them would be most apt for guiding the regulation of shale gas extraction in Europe. It concludes that regulation on shale gas extraction could be based on either of these principles for different reasons.