Active Participation, Knowledge of Legal Procedures: Tools for Sustainable Development of Shale Investments in Poland

Providing local communities with active participation in legal procedures and with knowledge concerning such procedures as a tool for sustainable development of shale gas investments in Poland.

The implemented 'Together About Shale Gas' information campaign brought a number of opinions from the areas covered by this programme, concerning the social perception and social acceptance as well as signals of doubts within the scope of environmental or technological aspects and certain operations of companies holding licences in Poland. As a result of the programme, a need has been identified for providing real support in legal procedures.

Local communities were represented at meetings of Local Dialogue Committees by members of local associations and organisations from Pomorskie Province in the following licence areas: Wejherowo, Bytów, Kościerzyna and Kartuzy. Moreover, meetings were held outside the programme with representatives of associations from Lubelskie and Łódzkie Provinces as well as other provinces. The representatives of local communities involved in shale gas issues unequivocally expressed their wish to be provided with and be able to regularly update (monitor) the exact, substantive legal information in the form of permits and administrative decisions obtained by licence holding operators during the investment execution. The demands result from the lack of knowledge concerning individual investment stages and levels of environment and human health protection as well as from too general information so far provided by the authorities, local governments or investors themselves. Therefore, in their opinion such knowledge should be extended to include hard data from all the permits granted to operators whereas any further procedures undertaken should be carried out with the participation of local communities as provided by law.

What is the current perception of investments by social organisations (associations) of the local population and what the doubts are about?

The main areas of unresolved doubts and need for acquiring knowledge concerning actions taken by investors in respect of specific licences and lands come down to the following issues (including commentary):

• Protection and safety of local water intakes and resources; local communities have become sensitive to this issue as a result of the statement of Mr Gawłowski, Deputy Minister of the Environment that “water resources in Poland per capita are lower than those in the neighbouring countries and considerably lower than the European average. According to the data of the National Water Management Authority, there are about 1,580 cubic meters of water per capita per year on average in Poland whereas the average resources per capita in Europe amount to 4,560 cubic meters per year.”
• Conditions for obtaining and using a licence as well as further modifications to licences;
• Programs of mining waste and sewage management and recycling methods;
• Permits required by the Water Act Law for the specific use of waters, execution of water facilities; long-term decrease in the groundwater table level; drainage systems for structures or construction excavations and mining plants, introduction into sewage systems of industrial waste water containing substances particularly harmful to the water environment;
• Industrial waste water containing substances particularly harmful to the water environment;
• Conditions for the establishment of the mining usufruct and terms of use of private lands, including the issue of compensations;
• Mine operations plan;
• Fulfilment of the obligation to disclose geological documentation to local governments;
• Requirement for obtaining an environmental permit;
• Observance of all acts of the national and EU legislation regarding the ore prospecting and extraction using the hydraulic fracturing technology and control;
• Financial guarantee as security for potential damage to the environment

Basically, most of the Member States have introduced a requirement for providing financial guarantee already before the works commencement. These legislative measures have resulted from the need to implement Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage. However, it should be noted that terms for granting such guarantee vary considerably, for example, with regard to their form, damage coverage, calculation methods or time frames.

Environmental impact assessment or strategic environmental assessment

Procedures related to making environmental impact assessments are one of the most diversified legal aspects in the legislation of individual Member States. It is best to show this diversity using specific examples.

In some Member States, it is obligatory to make an environmental impact assessment for projects related to the prospecting and extraction of unconventional hydrocarbons. In Bulgaria this requirement has been established since April 2012. In Denmark, it is also obligatory to make the impact assessment but only for projects of drillings involving hydraulic fracturing procedures. Lithuania has introduced still another regulation, namely projects relating to the prospecting of unconventional hydrocarbons must be preceded by the impact assessment but their extraction does not require such assessment.

In this context, it is also proper to mention the Polish legislation which provides for the need to make a prior project classification based on the provisions of the Regulation of the Council of Ministers of 9 November 2010 on Projects Likely to Have Significant Impact on the Environment. Currently, it is not required to make an impact assessment or to obtain an environmental permit if the operator conducts works related to the drilling of a well to the depth of 5,000 m outside the sensitive zones (specified in §3(43)(c) of the Regulation).

Also the aspect connected with a strategic environmental assessment should be discussed in a few words. As a general rule, the assessment does not have to be made in the Member States before the procedure for granting a licence for the prospecting and extracting of hydrocarbons is commenced. However, such obligation is stipulated in the provisions introduced in the United Kingdom and Lithuania.

Distance from buildings and land development

None of the Member States has introduced any regulation that would define a minimum distance from residential buildings – everything depends on planning conditions set by the relevant authorities. In the case of some countries the issues related to distance limits can be found with reference to drinking water and groundwater protection zones.

Requirements connected with monitoring of individual environmental elements before work commencement

The issues related to monitoring can be found in individual Member States, including Poland, in specific permits or decisions. In Denmark such monitoring is a part of licence obligations whereas, for example, in Spain the obligation to carry out such monitoring may be imposed within the environmental impact assessment procedure. In Poland, monitoring is not regulated in detail by law and is not a legal obligation of the licensee.

Composition of the fracturing fluid

Since the exploitation stage is the most complex one, it generates most inaccuracies and legal uncertainties. The protection of health and environment results mainly from the relevant directives and their implementation and application in individual Member States. The most problematic issues refer to the use of chemical substances in fracturing fluids, composition of those fluids as well as management of return fluids and storage of waste generated in connection with hydraulic fracturing.

The underground injection of fluids itself is subject to various regulations – some of the Member States consider it to be a procedure related to water management whereas other countries do not regulate this process at all as it is considered to be a part of a bigger project, namely the prospecting or extraction of specific resources. That is the case in Poland. Another important issue is that of solutions connected with the disclosure of the composition of fracturing fluids – basically, none of the Member States has introduced such a general disclosure requirement. In the United Kingdom, while granting permits involving groundwater the relevant authorities may require the disclosure of all the substances to be used during the works. A similar approach can be found in Spain – during the procedure of decision issuance by the Minister of the Environment the disclosure of such information may be requested.

The deposit exploitation stage involves also other reported problems, such as: problems connected with the sources of water (considerable quantities of which are used during fracturing), integrity of wells as well as gas burning and emission to air.

A way of meeting social expectations in legal procedures

There are detailed legal frameworks provided for all the aforementioned dubious issues, causing most questions and resistance and being of interest to residents. They also require investors to carry out a series of legal procedures. It means that the information related to those procedures and their results may be easily presented to representatives of local communities who may be also provided with a participation in some of such procedures. In Poland there are three legal instruments that may be used for offering specifics concerning particular well-drilling sites and for providing a real and not fictitious participation in making administrative decisions:

• Obtaining public information as a result of an inquiry made by a local association in respect of already decided issues in order to discuss both rights and obligations of licensees in a given area;
• Recognising as a party to proceedings in pending cases in order to provide with current participation in the administrative procedure, insofar as it is allowed by the Polish and European law;
• Participation of a social or ecological organisation as a representative of a social group in legal procedures and reacting to situations not adequately clarified.

In order to ensure the real participation of local communities in making investment-related decisions and their influence on administrative decisions as well as to increase the social awareness and eliminate concerns, it is necessary to urgently develop a platform for monitoring permits and administrative decisions related to shale gas and a base for professional legal aid for local associations in the areas in which the licences have been granted.

The efficient organisation and broad information campaign in the form of local dialogue committees in the licence areas, education and regular monitoring of procedures as well as ensuring the participation of local communities in such procedures, combined with the integration of social groups, local authorities and investors, should soon result in the acceleration of administrative procedures, winning of social acceptance and understanding of difficult issues related to environmental protection and technology.

In practice, it means that the educational and information initiatives taken under the “Together about shale gas” campaign should be continued and the programme should be also supplemented with a module of education concerning the locally determined legal situation of licensees, legal protection of local communities and ensuring the social monitoring of permits and licences as well as broad access to legal procedures in an organised and substantively organised manner.

Michał Tarka, Expert for the "Together about shale gas” Programme and PhD student at the Faculty of Law and Administration of the Adam Mickiewicz University in Poznań