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German coalition party wants to examine ‘fracking’ option in Germany

Out-Law News | 01 Jul 2022 | 3:13 pm | 2 min. read

One of the German government coalition partners, the liberal Free Democrats (FDP), has proposed lifting the 2017 ban on unconventional fracking in Germany in response to the current low level of gas reserves.

Russian gas company Gazprom has also confirmed that it is reducing supplies to Europe through the Nord Stream 1 pipeline by 40%, further impacting on gas supplies.

Vice Chancellor Robert Habeck of the Greens, federal minister for economic affairs and climate action, has said that Germany must limit its use of gas for electricity production and prioritise the filling of storage facilities to compensate for a drop in supply from Russia, while increasing the burning of coal. While this is the current approach being taken in Germany, the FDP is now calling on Germany to reconsider the 2017 ban in view of the supply problems.

The German coalition government is still targeting coal-free German energy production by 2030.

Fracking – technically called hydraulic fracturing – involves pumping water, sand, and chemicals at high pressure into shale rock to create narrow fractures, through which trapped gas can flow out and be captured.

Dr. Valerian von Richthofen

Dr. Valerian von Richthofen

Rechtsanwalt, Partner

 'Zero risk’ has often been used as an assessment standard in the public discussion in Germany. However, this does not appear to be appropriate, since conventional gas production also involves environmental risks

In gas production, a distinction is made between ‘conventional’ and ‘unconventional’ deposits, depending on the permeability of the rocks. When drilling into conventional gas deposits the gas can naturally flow to the surface due to reservoir pressure. However, Germany has used fracking in conventional gas production since 1961, to increase production rates or keep these consistent. Use of fracking is essential to free unconventional gases like shale-gas and coal bed methane stored in dense rock strata.

The German fracking law package that came into force in 2016 significantly tightened existing water and nature conservation requirements for the use of fracking in unconventional gas deposits. The purpose of the law was to ensure the protection of health and drinking water quality. The law implemented scientifically supervised measures to gather empirical data on the effects of unconventional fracking on the environment and the subsurface. 

As laid down in the German Federal Water Act (Gesetz zur Ordnung des Wasserhaushalts), an independent expert commission annually reviews unconventional fracking according to the present scientific and technical knowledge. This review is designed to ensure the compatibility of the fracking law package with the German Constitution. According to the expert commission’s latest report dated 30 June 2021 (link in German), the environmental risks of unconventional fracking could be minimised through adapted control and monitoring of the measures. However, detailed investigations and a thorough examination of the vulnerability of local protected resources are required in advance according to the expert commission’s report. Despite being obligated to do so in 2021, the Bundestag has not yet reviewed if the ban on unconventional fracking is still appropriate based on present scientific and technical knowledge.

The FDP told the German newspaper Welt am Sonntag (link in German) that the objections to unconventional fracking are no longer relevant and that all options must be examined. According to the party’s energy policy spokesman in the Bundestag, the FDP supports the significant expansion of domestic natural gas production. According to the FDP, unconventional fracking causes no relevant environmental damage under modern standards.

Energy and environmental law expert Dr. Valerian von Richthofen of Pinsent Masons, who wrote his PhD thesis on the legal framework for fracking in Germany, said: “For further discussion, the focus should be on the extent to which the use of fracking in the production of unconventional gas deposits entails higher environmental risks than conventional gas production and if these are still considered to be justifiable. Unfortunately, a ‘zero risk’ has often been used as an assessment standard in the public discussion in Germany. However, this does not appear to be appropriate, since conventional gas production also involves environmental risks".

Coalition partners SPD and the Greens have strictly rejected any relaxation of the regulations for unconventional fracking while the Union, which introduced the extensive ban in 2017 with the SPD, has not yet questioned it. Habeck has also rejected the FDP’s position on fracking (link in German), saying that the fracking debate is of “no use” and that fracking projects take years to develop.