Relationship between state law set by the German federal government and potentially deviant legal positions of the federal states

Author: Anna Alexandra Seuser

University of Trier, Germany

Published:  May 22, 2012

Outlining the legal structures of the approval procedure concerning hydraulic fracturing (fracing) in the German State, several distinctions as well as positions of points have to be fulfilled. Concerning this matter, there has to be distinguished precisely between the requirements set under mining law on the one hand and under the law of water protection on the other hand. Additionally, other environmental permit requirements complete the complex national legal position of shale gas exploration and extraction.

Referring to the legal aspects accompanying with the innovative development of an unconventional field of gas resource the basal legal source, the German Mining Act, provides for a tiered procedure in the approval of mining projects. To this effect, the Act distinguishes between the granting of a license and the approval of mining activities in both stages of a mining project: exploration and extraction.

In Germany, current shale gas projects involving hydraulic fracturing are still in the exploration phase. In the majority of procedures, only a license for exploration has been granted; in some cases operational plans for exploration have been approved and exploration has already started whereas licenses for extraction have not yet been issued.

There are several isolated problems connected with the issue of introducing a mandatory EIA for all mining projects involving hydraulic fracturing - including exploration - by means of an amendment of the mining law. However, one of the most pertinent questions of the present legal framework concerning the domain of shale gas legislation is the relationship between state law set by the federal government and the states and their potentially deviant legal positions in matters of covering the subject of unconventional gas resources, in other words the demarcation of competences within the federal structure of the German state. Exemplary the lively discussion upon a legal prohibition of the technology of hydraulic fracturing to the full extent can be cited.

Inspecting the Basic Constitutional Law of the Federal Republic of Germany accurately it surfaces that, based upon article 74 para. 1 no.11, concurrent legislative powers shall extend to the subject of the law relating to economic affairs, such as mining. As far as a legal prohibition of fracing, for instance, concerns dangers specifically originating from mining, a veto in this vein might be drawn upon that rule of jurisdiction. With regard to potential dangers pertaining the use of a body of water, the relevant legal point of regard is article 74 para.1 no. 32, which treats the subject of the management of water resources.

As matters of the current legislative powers are affected in terms of art. 74 para. 1 no. 11 (mining), the several states are not entitled legally to ban fracing locally in contradiction to the federal legal source, the German Mining Law. As far as (scientifically based and proved) dangers related to the management of water resources are in the center of attention, the legal situation appears to be different at first sight – but de facto comes to the same result.

In that case art. 72 para. 3 no. 5 of the Basic Constitutional Law of the Federal Republic of Germany regulates that (although) “the Federation has made use of its power to legislate, the states may enact laws at variance with this legislation with respect to management of water resources (except for regulations related to materials or facilities)”. Thereby the states are given the opportunity of an alternative legislation in that range in order to compensate the abolition of the former art. 75 of the Basic Constitutional Law of the Federal Republic of Germany (framework legislation) in the course of the federalism reform 2006.

But – even with acceptance of that potential possibility on the part of the certain states – nevertheless scientific based and proved expertises of independent committees would be needed for evidence at first – and do not exist at the present time (cp. the commissioned expertise in North Rhine – Westphalia, which should be finished in fall 2012 as well as the expertise on behalf of the UBA concerning the matter of an amendment of the UmwRG-ÄndG). Moreover every “regulation related to materials” in the context of deviant state legislation referring to the management of water resources poses a variance-resistant regulation, which can be amended by a state in no case.

Finally the argument, that the federal legislator has exercised his competence depending upon art. 72 para.1 of the Basic Constitutional Law of the Federal Republic of Germany only fragmentary which empowers the states to enact complementary (but not deviant) rules does not pursue the problem to a solution, because even then the question “whether” as well as “to what extent” modification of that kind might be licit is perpetuated.

In other words there is no possibility to differ from federal law in that legal area at the disposal of the states. Therefore, considering the fact that German mining law is gaining new relevance with new technologies and new types of projects, it is time for a fundamental amendment to the German Federal Mining Act on the part of the federal legislator.