Before beginning to explore or extract shale gas, is it always necessary to conduct an environmental impact assessment?
Exploring or extracting shale gas clearly interferes with the environment, just like mining for other types of hydrocarbons. In Poland, it is an activity that is regulated by the state and requires that certain administrative decisions (including concessions) be obtained before it is begun. These decisions must reflect the necessity to protect the environment, and in particular to minimise the negative environmental impacts of exploration and extraction. One of the instruments designed to assure an appropriate level of environmental protection is a decision on environmental conditions, which defines the environmental terms under which a given venture may be carried out.
As a rule, it is necessary to obtain a decision on environmental conditions for planned undertakings that would always have, or potentially may have, a significant impact on the environment. The specific types of undertakings that are included in either of these groups are determined by the government regulation on this subject dated 9 November 2010. Receiving a decision on environmental conditions is necessary before obtaining a concession for exploring, identifying or extracting mining deposits.
Exploring and identifying deposits
Under the government regulation, an undertaking that may potentially have an impact on the environment includes exploring or identifying mining deposits:
- in conjunction with geological work performed using explosives,
- conducted in the maritime territory of the Republic of Poland,
- conducted using an underground method, or
- conducted using boreholes deeper than 1,000 m.
The last point (introduced fairly recently, effective from 15 November 2010) is relevant to exploring and identifying shale gas deposits—an activity that is conducted using this method, among others.
Classification of the planned activity within one of the groups listed above will determine whether it is necessary to obtain a decision on environmental conditions. This does not necessarily mean that an environmental impact assessment will be required for the undertaking (including preparing an EIA report, conducting public consultations, and addressing resulting comments or applications). Generally it is up to the administrative authority that has jurisdiction to issue the decision to determine, after conducting an initial screening, whether it will be necessary to conduct an environmental impact assessment. This is determined by reference to the grounds set forth in the law, such as the nature and scale of the undertaking, the potential for releases to the environment, the risk of an emergency, the location of the project, and its effect on protected areas.
Conducting an environmental impact assessment will be mandatory, however, if the planned exploration or identification of shale gas could have a significant impact on Natura 2000 areas.
Extraction from deposits
Extraction of shale gas is generally classified as an activity that may always have a significant impact on the environment. This means that before a company obtains a concession to extract shale gas, it must obtain a decision on environmental conditions. An environmental impact assessment will always be required as well.
Environmental impact assessment
An environmental impact assessment requires preparation of a report on the anticipated environmental impacts of the undertaking, subject to review and verification, and obtaining the opinions and approvals required by law, as well as assuring an opportunity for public participation in the proceeding.
The report must contain a precise description of the planned venture, the range of environmental impacts during the stages of implementation, exploitation or operation and liquidation, and many other elements necessary for the authority to conduct a thorough assessment of the range of the impacts the undertaking may have on the environment. Preparing the report may be costly and time-consuming. Moreover, because the community and environmental groups must have an opportunity to participate in the process, the applicant must expect that they will take an active part, submitting comments and applications, and after a decision is issued they may appeal to a higher administrative authority and, beyond that, to the administrative court.
As with other types of mining, exploration and extraction of shale gas contrary to the Environmental Protection Law or the Mining and Geology Law may have negative effects on the environment. The law provides for a number of legal instruments designed to exclude or minimise such impacts. One of them is the requirement to obtain a decision on environmental conditions, which must then be complied with by the applicant as well as the authority issuing a concession to explore or extract shale gas.
There is currently no way around the requirement to obtain a decision on environmental conditions before undertaking exploration and identification of shale gas deposits or obtaining the relevant concession. It will not always be necessary to conduct an environmental impact assessment for this process, however.
Before beginning extraction of shale gas, nonetheless, it will basically be necessary to obtain a decision on environmental conditions and conduct an environmental impact assessment for the undertaking. Because of the necessity to prepare an EIA report, and because of possible participation in the process by community and environmental groups, the EIA process may significantly delay obtaining a concession and beginning extraction.
Bartosz Kuraś, Environmental Law practice, Wardyński & Partners