A. Introduction

Hydraulic fracturing (fracking) involves the injection of water, sand and a mixture of chemicals into rock formations at high pressure. This creates new fractures and opens existing fractures in the rock, allowing natural gas to migrate from the rock to the well and rise to the surface. This technology makes it possible to exploit gas dispersed in shale rock formations and allows drilling in areas that would not have been profitable 10 to 20 years ago. However, there are considerable environmental risks linked with this technology (for an overview cf. Lechtenboehmer et al., 2011, p. 17 ff.).

Apart from impacts associated with land consumption, damage to the environment and landscape, as well as air pollution and noise, another predominant concern is the potential for an adverse effect on water resources (The Widener School of Law’s - Environmental & Natural Resources Law Clinic, 2010; Grün et al., 2011).

Hydraulic fracturing requires large quantities of water. Sand and chemicals are added to the water to facilitate the underground fracturing process. After the hydraulic fracturing process, the fracturing fluid is pumped out of the well, but dependent on underground pressure regimes, only a variable fraction of the fracturing fluid is recovered and stored in above-ground ponds to await removal by tanker.

This flowback water contains chemicals used for fracturing, as well as dissolved material that was released from the shale, including radioactivity generated through contact with slightly radioactive rocks that naturally occur underground, and therefore needs special treatment or disposal. The remaining water is left in the ground where it has the potential to contaminate shallow or deep groundwater aquifers (for potential impacts on water resources cf. The Tyndall Centre, 2011, p. 54 ff.; Umweltbundesamt, 2011, p. 13 ff.).

Some are suggesting that hydraulic fracturing may pollute shallow groundwater supplies with flammable methane (Osborn et al., 2011; Schon, 2011). Dependent on the technology used, the production of shale gas can emit significantly more greenhouse gases than the production of conventional natural gas. These higher emissions occur as methane escapes from flow back-return fluids and during drill-out following the fracturing (Howarth et al., 2011). Furthermore, shale gas operations can trigger small earthquakes (Majer et al., 2011).

All these potential threats to the environment have to be dealt with in the licensing procedure. This article investigates the legislation that applies to drilling and hydraulic fracturing for natural gas in German shale rock formations. It explores the main legal issues linked to the German mining law and the law on water management.

2. Other environmental permit requirements

Beyond the regulations of article 55 of the Federal Mining Law, article 48 par. 2 sentence 1 of the Federal Mining Law includes other public law requirements for the approval procedure of an operational plan.⁵ This is particularly relevant for the law on spatial planning (BVerwG, 2006), the law on urban development (BVerwG, 1989), the law on air pollution control (BVerwG, 1986), the law on soil protection (BVerwG, 2005) as well as the law on environmental protection.

With respect to the latter, regulations in the law implementing the EU Habitats Directive in articles 31 ff. of the Federal Nature Protection Act (VG Koblenz, 2007; Ludwig, 2005, p. 77 ff.) and the provisions for environmental intervention, according to articles 13 ff. of the Federal Nature Protection Law, are notably applicable.⁶ Provisions, which have to be applied in a special procedure scheduled by law, are considered to be within the competence of the respective authority (article 48 par. 1 sentence 1 of the Federal Mining Act).

This applies, e.g. for exemptions from ordinances, which establish protected areas through the laws on water conservation, soil preservation or environmental conservation, exemptions from the provisions protecting biotopes (article 30 of the Federal Nature Protection Act), exceptions from the law regarding the protection of species (article 38 of the Federal Nature Protection Act) and for approvals regarding the conversion of forests (article 9 of the Federal Forest Act).⁷ In terms of spatial planning, there is an ongoing discussion about whether to extend the planning instruments that are applied to the coordination of different projects on the surface to areas below ground.

The reason for this is that recently there has been an increasing interest in the use of subterranean spaces for activities other than pure mining, e.g. geological carbon dioxide storage, geothermal energy production, subterranean pumped-storage hydropower plants or other forms of energy storage below ground. Conflicts between these different options for underground use need to be resolved; this could be done by applying spatial planning law below ground. But this is still being debated and has not yet been introduced in practice (cf. the analysis by Erbguth, 2011).

3. Requirements under the law on water protection

Besides the mining law, the law on water management is also relevant for shale gas exploration and extraction. According to article 8 ff. of the Federal Water Management Act, a permit (Erlaubnis) or approval (Bewilligung) is necessary for the use of a body of water. In the case of hydraulic fracturing, only a permit can be considered (cf. article 10 of the Federal Water Management Act). The mining authority decides whether to issue the permit based on article 19 par. 1 and 2 of the Federal Water Management Act.

This provision passes the competence from the water authorities to the mining authorities. If a permit for the use of the body of water is required, the mining authority has to instruct the mining company to file an application. There are different actions relating to the water body that may require a permit under article 9 of the Federal Water Management Act; the most important are described in the following sections (an overview of more actions is given in Grigo et al., 2011, p. 34 ff. and Lechtenboehmer et al., 2011, p. 25 ff.).

a) Water withdrawal authorization regime

Shale gas drilling and hydraulic fracturing requires large amounts of water. Under article 9 par. 1 no. 1 or 5 of the Federal Water Management Act, a mining company requires a permit for the withdrawal of water from surface water or groundwater.

b) Use of groundwater resources

Shale gas drilling and hydraulic fracturing pose a risk of groundwater pollution. Although shale gas in Germany is usually found beneath the shallow groundwater level, there are different reasons why hydraulic fracturing may lead to a pollution of groundwater resources. The most important are the following:

First, the borehole could pass the groundwater table.

Second, the fluids used in hydraulic fracturing operations may rise to the groundwater level through leakages in the cap rocks, or along the wellbore in cases of improper well construction or well failure. Third, a fraction of the fracturing fluid may return to the surface (flow back) where it becomes a potential hazard for the groundwater. 

Article 9 of the Federal Water Management Act defines the term “use of a water body”. According to article 9 par. 1 no. 4 of the Federal Water Management Act, the first activity where the borehole passes the groundwater table may require a permit. Under this provision, “use” refers to an introduction and discharge of substances into the water body. In the drilling process, it is necessary to install a well casing to seal the well from surrounding formations and to stabilize the completed well.

Casing is typically a steel pipe lining the inside of the drilled hole and cemented into place (The Tyndall Centre, p. 16). This cement is a substance introduced into the groundwater table in the sense of article 9 par. 1 no. 4 of the Federal Water Management Act. According to article 48 par. 1 of the Federal Water Management Act, a permit may only be granted if harmful changes to the water quality are not to be expected.

This is subject to a scientific assessment by the competent authorities as part of the process of deciding and granting the permit for the particular case in question. Harmful changes to the water quality may be excluded if, for instance, the cement is coated with a steel tube and therefore might not come into contact with the aquiferous layers (Umweltbundesamt, 2011, p. 17 f.).

Measures likely to cause harmful changes in groundwater quality may need a permit, according to article 9 par. 2 no. 2 of the Federal Water Management Act. Harmful changes in water quality may be caused by fracturing fluids entering the groundwater. In this scenario it is more likely that fracturing fluid will end up in deep groundwater aquifers as opposed to in the shallow groundwater used for drinking water abstraction.

It remains uncertain as to whether deep groundwater aquifers are protected by article 9 par. 2 no. 2 of the Federal Water Management Act as they are highly mineralized and not used (Dietrich and Elgeti, 2011, p. 314; Seuser, 2012). However, according to the definition in article 3 no. 3, the Federal Water Management Act does not distinguish between shallow groundwater and deep groundwater, and protects both, regardless of their chemical composition. The question has not yet been conclusively addressed. Nevertheless, at least in cases where interaction between deep groundwater and shallow groundwater, or surface waters, cannot be excluded definitely, a permit based on article 9 par. 2 no. 2 of the Federal Water Management Act is required (Umweltbundesamt, 2011, p. 18).

The shallow groundwater may be further contaminated if leaks from inadequately cemented wells occur (Lechtenboehmer et al., 2011, p. 25). Fracturing fluid rising to the shallow groundwater level through leakages in the cap rock, or fluid returning to the surface and threatening to seep into the groundwater, may also pose risks to the shallow groundwater. There is also the potential risk of the creation of linkages between different groundwater horizons through the drilling process (Töpfer and Butler, 2011, p. 79 for drillings in the context of the utilization of geothermal energy). 

According to article 9 par. 2 no. 2 of the Federal Water Management Act, a permit is necessary for actions which are likely to cause harmful changes to water quality, either permanently or to an extent that is not merely inconsiderable. This provision is a catch clause, however, as it only applies if the conditions of article 9 par. 1 are not fulfilled. Whereas article 9 par. 1 targets measures that aim to use the water body, par. 2 also includes actions that do not have the purpose of affecting the water body (Berendes, 2010, § 9 marginal number 16).

Hydraulic fracturing involves injecting water, sand and a mixture of chemicals into rock formations at high pressure. Because shallow groundwater enjoys a high level of legal protection, a low degree of damage probability is sufficient to affirm the need for a permit, according to article par. 2 no. 2 of the Federal Water Management Act in cases of hydraulic fracturing (Umweltbundesamt, 2011, Seuser, 2012).

The permit has to be denied if harmful, unavoidable/non-compensable changes in the water body are likely to occur. The criterion “change” is linked to the functional assessment that the water quality has deteriorated in comparison to the previous water quality. The criterion “likely” is interpreted extensively. It is sufficient if tangible evidence exists for the aptitude of the measure to change water quality permanently, or not merely inconsiderably (Pape, 2011, § 9 marginal number 74 WHG).

A permit was denied, for example, in a case where a downhole heat exchanger was solicited to be authorized in a drinking water protection area beneath the groundwater level (VGH Wiesbaden, 2011). If in place, water protection ordinances of the Laender also have to be observed. If the authority should, after a scientific assessment in individual cases, come to the decision that a permit is not necessary, then the mining company’s obligation to announce activities according to article 49 par. 1 sentence 1 of the Federal Water Management Act comes into question.

c) Discharging fracturing flow back fluids and produced water into the groundwater or surface waters

The fracturing flow back fluid and produced water consists of water, different types of chemicals, as well as suspended and dissolved material from shale, including naturally-occurring radioactive material. It must be managed in an environmentally responsible manner. There are different options for disposal and treatment of the flow back and produced water (Abdalla et. al, 2011; Shale Gas Information Platform – Water Protection, The Basics), for instance, treatment in treatment facilities with subsequent discharge into surface waters or deep underground injection.

The latter may pose the potential risk of a discharge of substances into the groundwater.
According to article 9 par. 1 no. 4 of the Federal Water Management Act, the discharge of substances into a body of water requires a permit. In terms of discharge into surface waters, a permit may only be issued if the quantity and harmfulness of the wastewater are kept as low as possible, under observance of the possible processes and according to the best available technology (article 57 par. 1 no. 1 of the Federal Water Management Act). Beyond that, the discharge has to comply with the requirements for water quality and other legal prerequisites (article 57 par. 1 no. 2 of the Federal Water Management Act). 

For discharge into the groundwater, under article 48 par. 1 of the Federal Water Management Act, the permit may only be granted if harmful changes to the water quality are not to be expected (cf. section above). However, in this context, article 82 par. 6 sentence 2 of the Federal Water Management Act, in conjunction with article 11 par. 3 lit. j of the Water Framework Directive, makes it possible to authorize discharges into the groundwater under certain circumstances, and specific conditions.

The competent authority will decide within its duty-bound discretion. The provision applies to the injection of water containing substances that result from operations involved in the exploration and extraction of hydrocarbons or mining activities. If this provision is applicable in cases of reinjection of fracturing fluid, flow back is doubtful (Umweltbundesamt, 2011, p. 19). The wording of article 11 par. 3 lit. j of the Water Framework Directive (“Such injections shall not contain substances other than those resulting from the above operations”) supports the interpretation that the provision only applies to geogenic substances.

d) Other conditions for granting the permit

Beyond article 9 of the Federal Water Management Act, article 12 of the Federal Water Management Act also has to be considered for the granting of permits. According to article 12 par. 1 no. 1, the permit has to be denied if harmful (also by collateral clauses), unavoidable or non-compensable changes to the water quality are to be expected.

“Harmful changes to water quality” are defined by article 3 no. 10 of the Federal Water Management Act as changes in the characteristics of the water body which affect public welfare, in particular the public water supply, or which do not comply with the requirements arising from the Federal Water Management Act, from ordinances adopted under this act or from other provisions of water protection law. Other provisions may be legally-binding quality objectives that are adopted in order to implement the EU Water Framework Directive.

According to article 12 par. 1 no. 2 of the Federal Water Management Act, the permit has to be denied if other requirements under public law are not fulfilled. These may follow from ordinances regarding the protection of water or, for instance, the law on environmental conservation. Otherwise, the competent authority grants the permit with in duty bound discretion. This duty provides a wide scope in the sense that it allows comprehensive discretion for allocation and management (Pape, 2011, article 12 marginal number 52).

Article 6 par. 1 of the Federal Water Management Act provides for some requirements so that this discretion can be exercised. Article 6 par. 1 contains general principles for water management, e.g. the maintenance or creation of existing or future opportunities of use, particularly for the public water supply. For the management of groundwater, article 47 and 48 of the Federal Water Management Act, in conjunction with article 4 of the Water Framework Directive, provide special requirements for exercising this discretion (Berendes, 2010, § 12 marginal number 9). According to article 47 par. 1 no. 1, the groundwater has to be managed in such a way that a deterioration of the quantitative and chemical status will be prevented.

For the management of surface waters, articles 27 ff. of the Federal Water Management Act have to be observed in exercising this discretion. For example, surface waters, as long as they do not qualify as an artificial or heavily modified water body (cf. definition in article 2 no. 9 of the Water Framework Directive), shall be managed in a way that avoids a deterioration of their ecological and chemical status, while maintaining or achieving a good ecological and chemical status (article 27 of the Federal Water Management Act, Art. 4 of the Water Framework Directive).

Here, different rules and regulations may have to be considered, for instance article 22 of the Federal Water Management Act, which opens up the possibility of compensation between different competing uses of a water body (Köck and Möckel, 2010, p. 1395). In any case, the decision has to take into account the fact that the discretion under article 12 par. 2 of the Federal Water Management Act aims to optimize the protection of water resources (Pape, 2011, § 12 marginal number 49).

4. Necessity of an Environmental Impact Assessment

The most pertinent question, in terms of approving the exploration and extraction of natural gas using hydraulic fracturing, is if an Environmental Impact Assessment (EIA) is necessary. The EU Directive on Environmental Impact Assessment (EIA Directive) was transposed into the German Mining Law in 1990.⁸

According to article 3 of the EIA Directive, the environmental impact assessment shall identify, describe and assess, in an appropriate manner, the direct and indirect effects of a project on the following factors: human beings, fauna and flora; soil, water, air, climate and the landscape; material assets and the cultural heritage, and the interaction between these factors. Projects which are subject to an EIA are listed in the Ordinance on the Environmental Impact Assessment of Mining Projects.

The list comprises, for instance, mining which covers a surface area of 10 ha, mining which involves lowering the groundwater table over a wide area or which involves the risk of significant subsidence. For the extraction of natural gas, an environmental impact assessment is only foreseen for a hauling capacity of more than 500,000 cubic meters a year and for the installation and operation of offshore production platforms (Annex I no. 14 of the EIA Directive, article 1 no. 2 of the Ordinance on the Environmental Impact Assessment of Mining Projects). 

Beyond that, according to article 4 par. 2 in conjunction with annex II no. 2 d) EIA Directive, it is up to member states to decide whether an EIA shall be required for deep drillings. In particular, the provision mentions  geothermal drilling, drilling for the storage of nuclear waste material and drilling for water supplies. Although drilling for natural gas using hydraulic fracturing is not listed explicitly, the enumerated forms of drilling are examples and the list is not exhaustive.

Moreover, for other forms of deep drilling, the member state may demand a case-by-case examination, as well as fix thresholds or criteria, to determine whether the project shall be made subject to an EIA. When doing this, the member state shall take the relevant selection criteria set out in Annex III of the EIA Directive into account (article 4 par. 3 of the EIA Directive).
In Germany, regarding deep drillings, the EIA Directive was transposed through article 1 no. 8 of the Ordinance on the Environmental Impact Assessment of Mining Projects.

An EIA is mandatory only for drillings of more than 1000m, in the context of the utilization of geothermal energy, in areas of nature protection and in areas protected in accordance with the EU Habitat Directive and the EU Birds Directive. For other forms of deep drilling, Germany did not prescribe a case-by-case examination or thresholds/criteria. However, when taking the selection criteria of Annex III of the EIA Directive into account, deep drillings using hydraulic fracturing need to be made subject to a mandatory EIA or at least to a case-by-case examination (Frenz, 2011).

The necessity of an EIA for an operation does not mean that the operation may not be permitted. The aim of an EIA is the identification, description and assessment of the dimensions, probability and frequency of the environmental impacts a project may have in cases where environmental impacts are likely (articles 1 and 3 of the EIA Directive). The potential environmental impacts are described at the beginning of the article. 

There are several initiatives to amend the German Ordinance on the Environmental Impact Assessment of Mining Projects and to make every mining project using hydraulic fracturing subject to an EIA, or at least to a case-by-case examination (SPD Bundestag fraction, 2011; Land Nordrhein-Westfalen, 2011; Bezirksregierung Arnsberg, 2011; Grüne Bundestag Fraction, 2011; Dietrich and Elgeti, 2011, p. 315).

An EIA would be necessary due to the technology applied, regardless of the hauling capacity. Therefore, a framework operational plan including EIA would also be required for the exploration of shale gas in cases where the technology of hydraulic fracturing is applied.⁹
However, even without the amendment of the Ordinance on the Environmental Impact Assessment of Mining Projects, under the current legal situation an EIA may be required for mining projects that involve hydraulic fracturing, considering the jurisdiction of the European Court of Justice.

According to the European Court of Justice, the EIA Directive does not give a Member State the power to exclude certain classes of project which fall within Annex II of the Directive from the EIA procedure (including modifications to those projects), or to exempt a specific project from such a procedure, unless those classes of projects, or the specific project, could be regarded in their entirety, on the basis of a comprehensive assessment, as unlikely to have significant impacts on the environment (ECJ, 2009, n 42; ECJ, 1999, n 38).

Because of the direct effect of the EIA Directive (ECJ, 1995 - Großkrotzenburg), in the case of a transposition into national law that is not sufficient, the competent authority has to assess individual cases on a case-by-case basis to determine if an EIA is necessary (Otto, 2000; Staupe, 2000). The criteria of Annex III of the EIA Directive have to be observed.

When these criteria are applied, every deep drilling operation that uses hydraulic fracturing technology is subject to a case-by-case examination in line with article 4 par. 2 of the EIA Directive, according to the present legal situation (Frenz, 2011, p. 78; for a mandatory EIA for extraction Umweltbundesamt, 2011, p. 22). Depending on the result of this examination, an EIA may turn out to be necessary even for exploration. Nevertheless, the Ordinance on the Environmental Impact Assessment of Mining Projects should be amended in order to ensure the legal situation remains clear.

If an EIA is required, a mandatory framework operational plan (obligatorischer Rahmenbetriebsplan, article 52 par. 2a) has to be approved. A framework operational plan gives an overview of the entire project. It forms the basis and a brace for individual principal operational plans and is approved for a term of 10 to 25 years. It only has a declaratory effect; the approval of a principal operational plan is necessary for the execution of operations. The Federal Mining Act distinguishes between the mandatory and the voluntary framework operational plan, which the mining company only needs to file if requested to do so by the mining authority.

The approval of the mandatory framework operational plan is done by planning approval order and includes all possible parallel decisions (article 52 par. 2a of the Federal Mining Act in conjunction with article 75 of the German General Administrative Procedure Act). It also makes following other operational plans for the same project obligatory in terms of the questions concerned (for the exact wording cf. article 57 par. 5 of the Federal Mining Act).

5. Consultation with other authorities, stakeholders and the public

In terms of consultation, the legal situation is different for the approval of framework operational plans on the one hand, and alternative operational plans on the other.

a)    Approval of framework operational plans

In order to guarantee the participation of the public, other authorities and stakeholders, the approval of a framework operational plan, including an EIA, is subject to a formal planning approval procedure in accordance with article 5 of the Federal Mining Act, and in conjunction with article 73 ff. of the German General Administrative Procedure Act. Other authorities have to be consulted by the competent mining authority.

There are also few provisions demanding the consent of another authority, for instance article 19 par. 3 of the Federal Water Management Act. Because of the potential that public consultation has to increase acceptance of a project, it has been proposed to conduct an EIA with comprehensive participation on a voluntary basis for every mining project that involves hydraulic fracturing (Dietrich and Elgeti, 2011, p. 315).

b)    Approval of other operational plans

A consultation of stakeholders and the public is not prescribed for other operational plans. The only provision leading to the approval of other operational plans, regarding participation in the procedure, is in the Federal Mining Act article 54 par. 2. Pursuant to this article, other authorities, or the municipalities in their role as planning authorities, must be consulted.

There are some provisions in other acts which require the consent – and not only consultation - of other authorities, for instance article 19 par. 2 of the Federal Water Management Act for the decision on the permit regarding the use of the water body. However, in practice it has been reported that a permit regarding the use of the water body was not always considered to be necessary by the mining authorities (Scholle, 2011), and therefore the water authorities were not involved in the process.

Another example of making the consent of other authorities a requirement can be found in article 17 of the Federal Nature Protection Act in conjunction with the law of the Laender (e.g. article 10 par. 1 sentence 2 of the Saxon Nature Protection Act). Regarding consultation of the public and stakeholders, the German Federal Administrative Court held these existing rules to be unsatisfactory.

The Court therefore stated in its jurisdiction that the interests of certain stakeholders have to be observed in the decision on the approval of the operational plan, and that these parties must, therefore, be consulted in the administrative procedure. This includes persons affected by the indirect (in particular through air pollution) or direct effects of mining (i.e. through usage of the landed property or damages to the property).¹⁰

6. Announcement of drilling in accordance with article 4 of the Act on Natural Mineral Deposits

According to article 4 of the Act on Natural Mineral Deposits, the mining company has to announce the beginning of the drilling operation to the competent authority two weeks in advance. The competent authority has to be given access to the drilling site (article 5 of the Act on Natural Mineral Deposits).

D. Extraction

As with exploration, the extraction of hydrocarbons is also subject to a two-step authorization procedure:

1. granting an extraction license that confers the exclusive right to extract the mineral resources specified in the license, and
2. the approval of operational plans for mining operations regarding exploration.

I. The extraction licence

The right to extract is granted through permission (Bewilligung) and a special form of permission (Bergwerkseigentum). On granting permission, the mining authority makes a binding decision based on article 11 of the Federal Mining Act. According to article 15 of the Federal Mining Act, the mining authority must consult the authorities responsible for safeguarding public interests, including municipalities as far as the interests of urban development are concerned, before deciding to apply for an exploration license. A consultation with the public or other stakeholders is not foreseen in the Federal Mining Act.¹¹

II. Approval of operational plans for extraction

Usually all four types of operational plan mentioned in the Federal Mining Act are relevant (cf. section C.II.1.) in terms of extraction. The mining company has to file a mandatory framework operational plan if an EIA is necessary (article 52 par. 2a of the Federal Mining Act).  According to the law in force, an EIA for the extraction of natural gas is only envisaged for a hauling capacity of more than 500,000 cubic meters a year and for the installation and operation of offshore production platforms (article 1 no. 2 Ordinance on the Environmental Impact Assessment of Mining Projects). If this hauling capacity is not reached, a case-by-case examination as to whether an EIA needs to be conducted is necessary due to  the direct effect of the EIA Directive (cf. section C.II.4.). Because of the potential environmental impacts of using hydraulic fracturing to extract natural gas, there are good reasons to assume that, in the case of extraction, an EIA is always required.
In addition to the approval of a mandatory framework operational plan, at least one principle operational plan is necessary for each mining project as the approval of the framework operational plan only has a declaratory effect. Beyond that, the mining company may elaborate on operational plans for special issues if necessary. An operational plan for mine closure is required for the controlled closure of a mine.
For the decision program on the approval of principle operational plans, operational plans for special issues, voluntary framework operational plans and operational plans for mine closure, cf. section C.II.1.-3. and 5. For the requirements outlined for the approval of mandatory framework operational plans, cf. section C.II.4. and 5.

E. Summary and conclusions

The German Mining 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 (Grigo et al., 2011; Umweltbundesamt 2011, p. 6 f.). Licenses for extraction have not yet been issued.

The most pertinent question is whether an EIA is necessary for all mining projects involving hydraulic fracturing, including exploration. There is an initiative to introduce an EIA for all mining operations that use hydraulic fracturing. However, due to the direct effect of the EIA Directive, under the current legal situation a case-by-case examination as to whether an EIA is necessary has to be conducted for all deep drillings that apply hydraulic fracturing, including exploration.

If an EIA is necessary, a mandatory framework operational plan has to be approved which involves public consultation. Although a case-by-case examination needs to be conducted at the very least, even according to the present legal situation, the Ordinance on the Environmental Impact Assessment of Mining Projects should, nevertheless, be amended in order to ensure the legal situation remains clear.

Another critique of the present legal framework is that neither the public nor stakeholders (except for the authorities and the municipalities regarding aspects of urban development) need to be consulted in the procedure of granting a concession for exploration and/or extraction. The deficits of the German Federal Mining Act have been criticized for a long time, especially in terms of the participation and inclusion of environmental impacts (Hoppe, 1993; Beckmann, 1992).

Some aspects have been introduced under the jurisdiction of the German Federal Administrative Court. This has led to a legal situation that is not transparent and is – in a large number of sections - only fully understood by lawyers specialized in mining law. 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.

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¹The cited Acts and Directives are listed in the 'List of legislation cited' at the end of the article.